Friday, 22 May 2015

UK court decision on Iraqi civilians detention and transfer by UK forces

On 18 May 2015 the High Court of England and Wales handed down a decision on a preliminary issue relating to a number of claims in the ongoing litigation regarding treatment of Iraqi civilians detained by UK forces during the conflict 2003-2009.

The decision concerned a number of individuals who had initially been detained by UK forces and later transferred to the custody of US armed forces. They claim they suffered torture and other serious ill-treatment while detained by US forces and that the UK government is liable for that ill-treatment and for alleged unlawful detention after they were handed over. Their claim is based in part on the law of tort, a common law mechanism for claiming damages for harm suffered against a civil wrong. In the UK, the applicable law to determine that question would be Iraq law, as that is where the events occurred. As such, the court was asked to determine whether the UK Ministry of Defence would be liable under Iraqi law for the harm caused to the Iraqi civilians making the claim.

The court held that "if the claimants are able to prove that after being handed over by UK forces to the armed forces of the United States they were subjected to serious and deliberate ill-treatment by US soldiers, then, to establish that the defendant is jointly liable for their injuries under Iraqi law,...the claimants [would have to prove]: (a) an intention to facilitate the claimant's ill-treatment; or (b) actual foresight that the claimant might suffer such ill-treatment, coupled with failure to act in accordance with a legal duty to protect the claimant; or (c) contemplation and acceptance of the risk that transferring the claimant would facilitate his ill-treatment".

The full judgement can be found here. The claims will now be referred back to the courts for further hearings to make determinations on the merits of the claims involved.

There are hundreds of claims still pending before the courts brought by Iraqi civilians against the UK Ministry of Defence. The UK government established the Iraq Historic Allegations Team (IHAT) to review and investigate allegations of abuse of Iraqi civilians by UK armed forces personnel in Iraq during the period of 2003 to July 2009. The Grand Chamber of the European Court of Human Rights handed down a judgement (Hassan v UK) in September last year relating to a claim of an individual in similar circumstances, who was held in the same camp as the individuals in the UK court claim. In finding the UK had not violated Mr Hassan's rights, the Grand Chamber made important findings on the relation between the law of armed conflict and human rights law, grounds for detention and extraterritorial application of the Convention.

/ Sally