Iraqi Civilians v Ministry of Defence

Security Council resolutions requiring occupying forces to take security measures do not, without clear language, override obligations under article 5 of the Convention. Detention permitted by international humanitarian law must be conducted consistently with Convention obligations, including applicable procedural safeguards.

Whether mental distress caused by the defendant’s conduct or motive is an injury for which liability exists is a substantive question governed by the applicable law. Once liability is established, the availability of an English damages remedy is procedural and governed by the law of the forum.

More than 600 Iraqi civilians brought claims against the Ministry of Defence concerning alleged unlawful detention and ill treatment by British forces in Iraq. The claims were advanced in tort, governed by Iraqi law under Part III of the Private International Law (Miscellaneous Provisions) Act 1995, and under the Human Rights Act 1998.

Following the adjournment of limitation issues because the claimants’ Iraqi-law expert was unable to give evidence, the court determined two preliminary issues: the effect of UNSCR 1483 and UNSCR 1511 on detention obligations and article 5 of the Convention; and whether aggravated damages were governed by Iraqi or English law.

1. UNSCR 1483 imposed a duty, in the article 103 sense of an obligation, on the United Kingdom as occupying power to detain individuals where detention was considered necessary for imperative reasons of security. Paragraph 5 added the authority of a Security Council decision to obligations already arising under the Geneva Conventions and Hague Regulations.

2. That duty did not override article 5 of the Convention. UNSCR 1483 contained no language requiring the United Kingdom to comply with international humanitarian law in a manner inconsistent with its other international obligations. The reasoning in Al-Jedda v Secretary of State for Defence concerning UNSCR 1546 did not require a different conclusion.

3. A similar analysis applied to UNSCR 1511. Its authorisation to take all necessary measures to maintain security and stability included detention where necessary for imperative reasons of security, but did not authorise detention contrary to article 5. In light of Hassan v United Kingdom, article 5 was to be interpreted in the context of international armed conflict and applicable humanitarian law. No conflict requiring article 103 to resolve competing obligations therefore arose.

4. Under the substance-and-procedure distinction in Harding v Wealands and Cox v Ergo Versicherung AG, the question whether mental distress caused by conduct or motive in committing a tort is an injury for which the defendant is liable is substantive and governed by Iraqi law. If such liability exists, English law provides a suitable compensatory remedy, and assessment of the damages is procedural and governed by English law.

5. The two preliminary questions were answered accordingly. The remaining question whether aggravated damages were available under Iraqi law required expert evidence and was not decided.