Aseran and others v Ministry of Defence  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.
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.
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  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  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 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.