Iraqi Civilians v Ministry of Defence
2014
QUEEN’S BENCH DIVISION
United Kingdom
CORAM
- MR JUSTICE LEGGATT
Areas of Law
- Human Rights Law
- Conflict of Laws
- Civil Procedure
- International Law
- Tort Law
2014
QUEEN’S BENCH DIVISION
United Kingdom
CORAM
AI Generated Summary
The High Court addressed two preliminary issues amidst over 600 claims against the MOD by Iraqi civilians for unlawful detention and mistreatment: the legal effect of UNSCR 1483 and 1511, and whether aggravated damages are governed by Iraqi or English law. The court held that the UK had a duty under the UNSCRs to detain individuals for security reasons but must do so consistently with Article 5 of the European Convention on Human Rights. Furthermore, the issue of aggravated damages is substantive and thus governed by Iraqi law, while their assessment is procedural and governed by English law.
Judgment
Section Para No. Introduction 1 The remaining issues 3 Issue 1: the effect of UNSCR 1483 & 1511 5 The resolutions 6 UNSCR 1546 11 The Al-Jedda case: decision of the House of Lords 13 The Al-Jedda case: decision of the European Court 17 Hassan v UK 19 The parties’ arguments 21 Findings on the effect of UNSCR 1483 23 Findings on the effect of UNSCR 1511 30 Conclusion on the first issue 32 Issue 2: aggravated damages 33 Conclusion on the second issue 41
Mr Justice Leggatt :
Introduction
Over 600 cases are currently pending in the High Court in which Iraqi civilians are claiming damages from the Ministry of Defence (“MOD”) for their allegedly unlawful detention and alleged ill treatment by British armed forces on various dates during the period when British forces were present in Iraq. The claims are made on two legal bases. The first is the law of tort. It is common ground that, pursuant to Part III of the Private International Law (Miscellaneous Provisions) Act 1995 , the applicable law which is to be used for determining the issues arising in these claims is the law of Iraq. The second legal basis is the Human Rights Act 1998 . The claimants allege violations of articles 3 and 5 of the European Convention on Human Rights (the “Convention”) incorporated in Schedule 1 to the 1998 Act .
By an order dated 5 March 2014 (as varied on 24 June 2014), the court gave directions for a trial of preliminary issues in this litigation. Most of the issues were aimed at identifying the applicable period of limitation and whether the proceedings were begun before that period expired. These limitation issues affect almost all the claims. The limitation issues raise questions of Iraqi law which are the subject of expert evidence. Regrettably, the claimants’ expert witness, Mr Saleh Majid, has been ill and has also been affected by his wife’s recent serious ill health. About two weeks before the hearing, it became clear that Mr Majid would not be able to give evidence and that, as there was insufficient time before the hearing for another expert to be instructed in his place, the trial of the limitation issues would have to be adjourned. I granted the claimants’ application for an adjournment on 15 October 2014 and have since given directions for a new trial which will also encompass additional issues.
The remaining issues
This has left only two preliminary issues which can be decided now. These issues, which are raised in relation to a number of specified test