MOD to compensate Iraqis for “ill treatment”

18 December 2017 by

iraq war human rights compensation civilian Camp Bassa compensation damages conflict of laws international humanitarian law

Aseran and others v Ministry of Defence [2017] EWHC 3289 (QB) 14 December 2017 – read judgment

The High Court has upheld claims by four Iraqi civilians that their human rights had been breached by the British army. Their claims in tort were rejected as time-barred.

These were four claims in the large scale action known as the Iraqi civilian litigation. This judgment follows the first full trials of civil compensation claims in which the claimants themselves and other witnesses testified in an English courtroom. The introduction given by Leggatt J best explains the picture.

The claimants in these cases are Iraqi citizens who allege that they were unlawfully imprisoned and ill-treated …by British armed forces and who are claiming compensation from the Ministry of Defence. Questions of law raised by the conflict in Iraq, some of them novel and very hard questions, have been argued in the English courts and on applications to the European Court of Human Rights since soon after the conflict began. Until now, however, such arguments have taken place on the basis of assumed facts or limited written evidence.

The four claims were tried as lead cases out of more than six hundred remaining cases. All the claims were advanced on two legal bases. The first was the general law of tort under which a person who has suffered injury as a result of a civil wrong can claim damages from the wrongdoer. Because the relevant events occurred in Iraq, the Iraqi law of tort was applicable. But the claims were subject to a doctrine known as Crown act of state which precludes the court from passing judgment on a claim in tort arising out of an act done with the authority of the British government in the conduct of a military operation abroad.

The second legal basis for the claims was the Human Rights Act, which makes a breach of the European Convention on Human Rights by a UK public authority unlawful as a matter of UK domestic law and gives the victim a potential claim for damages.

Factual Background

The first claimant, Aseran, had been detained at a camp which was in effect a prisoners’ collection point.  Under the Geneva Convention it was lawful for the advancing British forces to remove Mr Alseran forcibly from his family home and to detain him, but there was no lawful basis for his internment at Camp Bucca, whether as a prisoner of war or as a civilian internee.  He was awarded damages  under Article 5 of the Convention  in respect of ill-treatment following his capture, in a sum of £10,000, and his unlawful detention for 27 days, in a sum of £2,700.

MRE and KSU, employees on an Iraqi commercial cargo ship, had been taken aboard a coalition services naval carrier. Although the judge did not accept that the MOD was liable for their capture, the British services were responsible for their subsequent detention at Camp Bucca. They were awarded £10,000 damages for their hooding with sandbags.  MRE sustained an eye injury as a result of hooding, for which he was awarded additional damages of £1,000, as well as general damages of £15,000 for a blow struck to his head. Additional damages of £1,440 were given to cover the cost of medical treatment; and £600 to both MRE and KSU for six days  of unlawful imprisonment.

Al-Waheed was arrested in a house raid carried out by British soldiers in Basra city in 2007. The raid followed a tip-off about terrorist activities. A partly assembled IED and a large quantity of explosives were found in the house.  On his arrest, Mr Al-Waheed was taken first to Basra Airport and then interned at Shaibah. He alleged that he had suffered beating during his arrest and “harsh” interrogation, as well as suffering deprived sleep and general sense deprivation. He was awarded damages under Article 3 (the prohibition on degrading and inhuman treatment): £15,000 in respect of the beating, £15,000 in respect of suffering he incurred from the interrogation and sleep deprivation and £3,300 in respect of his unlawful detention for 33 days.

Background law

Because the alleged activities took place in Iraq, the law to be used is the law of the country in which the events constituting the tort occurred. It was common ground between the parties that, in accordance with the rule under the Private International Law (Miscellaneous Provisions) Act 1995 and with the decision of the House of Lords in R (Al-Jedda) v Secretary of State for Defence [2008] 1 AC 332, paras 40-43, the law applicable to claims in tort in this litigation was the law of Iraq.

However, Crown act of state sets limits to the enforceability of foreign tort law in the context of military operations abroad. The claimants argued that this does not apply to the conduct of military operations which are not themselves lawful in international law.

Leggatt J rejected this argument. In his view the application of the Crown act of state doctrine did not depend on establishing the lawfulness either of the individual act or the wider military operation of which the act formed part or the policy decision to engage in that operation.

On the other hand, even though decisions of “high policy” such as whether to deploy armed force abroad are not judicially reviewable, the separation of powers under the UK’s constitution does not in itself prevent courts from judging the legality of lower level policies adopted by the executive which apply to its treatment of foreign subjects abroad. Foreign policy is no longer regarded as a complete “no go” area for the courts and a court does not “turn a blind eye to executive lawlessness beyond the frontiers of its own jurisdiction”: R v Horseferry Road Magistrates’ Court, ex parte Bennett [1994] 1 AC 42, 67 (Lord Bridge).

Torturing or mistreating prisoners…is not inherent in the use of armed force abroad. Not only is such a practice contrary to international humanitarian law but it is also incompatible with article 3 of the European Convention and therefore unlawful in English law pursuant to section 6 of the Human Rights Act. There is nothing incoherent or irrational about a court passing judgment on a claim in tort brought by an individual who alleges such mistreatment. [para 71]

The claimants’ detention was “without doubt” an exercise of sovereign power, inherently governmental in nature, done outside the UK in the conduct of a military operation. The question was whether it was a Crown act of state, and that depended on whether it was authorised by the Crown. Leggatt J found that the authorisation only extended so far as the terms of the UN Security Council Resolution 1546 which had been adopted in 2004 to endorse a timetable for Iraq’s political transition to democratic government. Beyond that the detention was not authorised, was not an exercise of sovereign power, and it therefore breached Article 5 of the European Convention.

According to Leggatt J,

the relevant authority from the Crown during the invasion and military occupation of Iraq authorised detention only when and to the extent that it was permitted by international humanitarian law.

As for Article 3, the high threshold for proving inhumane or degrading treatment is not often reached. The circumstances at Camp Bucca did not fall foul of the requirements under Article 3, at least as far as MRE and KSU were concerned (see para 518 of the judgment).

though the conditions in which Mr Alseran, MRE and KSU were held at Camp Bucca, particularly in the first few days of their detention, were arduous, I do not consider that those conditions, either in any particular respect or considered overall, amounted to inhuman or degrading treatment which violated article 3 of the European Convention on Human Rights.

But the specific allegations of mistreatment, such as the hooding and strike over the head were accepted as evidence of treatment contrary to Article 3.

All the tort claims were rejected on the grounds that they had been brought outside the limitation period. But the limitation imposed by the Human Rights Act (one year from alleged breach to claim) was disapplied. The judge found that it was equitable to permit these claims notwithstanding the “substantial periods” which elapsed from when the acts complained of occurred before the claims were issued.


The MOD argued that, although the quantification of any damages awarded in tort was governed by English law, where the claimants were Iraqi citizens, an adjustment should be made to damages awarded for non-financial injury to reflect the fact that the general standard and cost of living in Iraq is lower than in the UK.  Leggatt J was sympathetic to this “legitimate and real concern”, but observed that once it was accepted that the quantum of damages was to be decided in accordance with English law, there was no scope for reducing the amount of any award by reference to the claimant’s economic or social circumstances.

When awarding damages as compensation for pain and suffering, mental distress or other harm of a non-financial nature, English courts do not have regard to whether the claimant is rich or poor, nor to the standard or cost of living in the place where the claimant habitually resides.  Damages are not reduced if the claimant lives in a deprived region of the country, nor increased if the claimant lives in London on the ground that living costs there are higher.

As Lord Woolf noted in Heil v Rankin[2001] QB 272 , the decision as to what is the fair, reasonable and just equivalent in monetary terms of an injury “has to be taken against the background of the society in which the court makes the award” (para 38).

Conflict of laws conventions dictate that matters of forum should be decided in accordance with the laws of the country where the injury took place, but matters of substance should accord with the laws of where the litigation is carried out. As for quantum of damages, it seemed to the judge in this case “that sum of money represents appropriate compensation for an injury caused by the defendant’s wrongful act

just as much a matter of substance as the question whether the defendant is liable to pay damages for that type of injury. Indeed, there is no clear or logical dividing line between the two questions. Both are determinative of the extent of the parties’ rights and liabilities.

The judge was grateful not to have been subjected to a “blizzard of authorities” of Strasbourg awards for human rights damages (para 924). In view of the lack of principled assessments from the Court of Human Rights, the judge turned to the guidance established in English tort law as a starting-point.  In doing this, he sought to strike a balance between two competing considerations. He took into account the greater purchasing power of money in Iraq than in the UK, but he was concerned that the award should not imply that  “violating the rights of an Iraqi citizen is less serious than violating the rights of a British citizen, or that the suffering of those who live in poorer countries matters less than the suffering of people who live in richer countries such as the UK.”

He thought the equitable approach to follow was to award a figure that is around half the amount that would be recoverable on a claim in tort to which English law applied.

Related posts:

1 comment;

  1. truthaholics says:

    Reblogged this on | truthaholics and commented:
    “The judge was grateful not to have been subjected to a “blizzard of authorities” of Strasbourg awards for human rights damages (para 924). In view of the lack of principled assessments from the Court of Human Rights, the judge turned to the guidance established in English tort law as a starting-point. In doing this, he sought to strike a balance between two competing considerations. He took into account the greater purchasing power of money in Iraq than in the UK, but he was concerned that the award should not imply that “violating the rights of an Iraqi citizen is less serious than violating the rights of a British citizen, or that the suffering of those who live in poorer countries matters less than the suffering of people who live in richer countries such as the UK.”

    He thought the equitable approach to follow was to award a figure that is around half the amount that would be recoverable on a claim in tort to which English law applied.”

Comments are closed.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: