Kamil Najim Abdullah Alseran and Another v MRE and Others

Hearing dates: 13 June – 12 July 2016; 20 March – 6 April 2017; 16 October 2017

Judgment Approved

I. INTRODUCTION

1

The still unfinished business resulting from the UK's military intervention in Iraq between 2003 and 2009 includes a large group of claims proceeding in our courts known as the "Iraqi civilian litigation". The claimants in these cases are Iraqi citizens who allege that they were unlawfully imprisoned and ill-treated (or in a few cases that their next-of-kin was unlawfully killed) by British armed forces and who are claiming compensation from the Ministry of Defence (" MOD"). 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. This judgment follows the first full trials of civil compensation claims in which the claimants themselves and other witnesses have testified in an English courtroom. 1

Summary of claims and conclusions

2

Because this is a long judgment which addresses in detail many factual and legal questions, I will summarise the claims and my main conclusions at the start. This is, however, a bare summary only and the reasons for the conclusions summarised here are set out in the following seven parts of the judgment.

The lead cases

3

Of the more than 600 remaining claims in this litigation, the four claims which are the subject of this judgment have been tried as lead cases. There is no assumption that these cases are typical or representative of others, but most of the legal issues which they raise and some of the same factual issues are likely to arise in other cases.

4

The claims have been advanced on two legal bases. The first is 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 is applicable to these claims. But the claims are subject to a doctrine known as Crown act of state which (in broad terms) 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.

5

The second legal basis for the claims is the Human Rights Act 1998, 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.

6

The claims made and main conclusions reached in the four lead cases are as follows.

Alseran

7

Kamil Najim Abdullah Alseran, aged 22 at the time, was captured in his home at the end of March 2003 during the advance on Basra by British forces. Following his capture he was taken to a temporary camp which was used as a prisoner collection point. Mr Alseran has alleged that the conditions in which he was held at this camp were inhuman and that he was assaulted by British soldiers who made the prisoners lie face down on the ground and ran over their backs. The MOD has disputed these

allegations and also required Mr Alseran to prove that the soldiers who captured and allegedly assaulted him were British (and not US) soldiers. From the temporary camp Mr Alseran was taken to a prisoner of war internment facility near the port of Umm Qasr which became known as Camp Bucca, where he was interned for several weeks before being released.

8

The psychiatrists who gave expert evidence agreed that Mr Alseran still suffers from anxiety, depression and traumatic symptoms as result of his experiences at the hands of coalition forces. As well as complaining of ill-treatment, Mr Alseran claimed that the whole of his detention was unlawful.

9

My main conclusions in Mr Alseran's case are, in summary:

i) British forces captured Mr Alseran on 30 March 2003 and were responsible for detaining him until he was released on 7 May 2003.

ii) As a person found in a battle zone, it was lawful under the law of armed conflict (now known as international humanitarian law) for British forces to capture Mr Alseran and evacuate him from the area for reasons of security. But there was no legal basis in international or national law for his subsequent internment at Camp Bucca.

iii) On the balance of probability Mr Alseran's allegation that, following his capture, he (and other prisoners) were assaulted by soldiers running over their backs is true. The MOD was liable for this conduct which was also inhuman and degrading treatment in breach of article 3 of the European Convention.

iv) The conditions in which Mr Alseran was detained at the temporary camp and at Camp Bucca were harsh but did not amount to inhuman treatment.

v) The system for review of detention at Camp Bucca was flawed because the approach adopted was to treat an individual who claimed to be a civilian (such as Mr Alseran) as a prisoner of war unless there was no doubt that the person was a civilian. That approach was based on a wrong understanding by the MOD of the Geneva Conventions. The correct approach would have been to consider whether there was evidence that the individual claiming civilian status was a combatant or had taken part in hostilities. If – as in Mr Alseran's case – there was no such evidence, then there was no power to intern him, whether as a prisoner of war or as a civilian internee. Had the correct test been applied, Mr Alseran should and probably would have been released by 10 April 2003.

vi) Because it was contrary to international humanitarian law, Mr Alseran's detention between 10 April and 7 May 2003 violated article 5 of the European Convention and also gave rise to liability in tort (as the British government did not authorise detention which was in breach of the Geneva Conventions and the Human Rights Act).

vii) In circumstances where Mr Alseran did not begin proceedings in England until March 2013, his claims in tort are time-barred, but his claims under the Human Rights Act are not.

viii) Mr Alseran is awarded damages under the Human Rights Act for (i) the ill-treatment following his capture, in a sum of £10,000, and (ii) his unlawful detention for 27 days, in a sum of £2,700.

MRE and KSU

10

When the war began, MRE and KSU were serving on a merchant ship which was moored in the Khawr az Zubayr waterway north of Umm Qasr. MRE was 37 years old and was employed as an engineer on the ship. KSU was 27 years old and was employed as a guard. On the evening of 24 March 2003 their ship was boarded by coalition forces and the four crew members including MRE and KSU were captured. They were taken by boat a long way out to sea to a large warship on which they were held overnight. The claimants allege, and it was not disputed at the trial, that on arrival at this ship they were forced to strip naked and subjected to an intrusive physical inspection which involved sexual humiliation. KSU was also burnt on the buttock with a lit cigarette. A major issue at the trial was whether the soldiers who captured the claimants and mistreated them on the warship were British soldiers.

11

The following morning MRE and KSU were taken back by boat to Umm Qasr port and from there by road to Camp Bucca, where they were interned. It was not disputed by the MOD that the soldiers who met them when they disembarked and transported them in a Land Rover to Camp Bucca were British soldiers. It was also not disputed at the trial that for the duration of this journey the claimants were hooded with sandbags. But allegations that MRE was struck on the head with a rifle butt on the dock at Umm Qasr and was later kicked in the knee by a soldier while detained at Camp Bucca were denied. MRE and KSU claim that the whole of their detention was unlawful.

12

The psychiatrists who gave expert evidence agreed that both MRE and KSU still suffer from post-traumatic stress disorder as result of their experiences at the hands of coalition forces.

13

My main conclusions in these cases are, in summary, as follows:

i) Although the claimants' allegations that they were mistreated at the time of their capture and on the large warship are true, they have failed to prove that the soldiers who captured and mistreated them were British.

ii) It is, however, clear that from when they disembarked at Umm Qasr port on 25 March 2003 until their release from Camp Bucca, which occurred on 10 April 2003, MRE and KSU were in the custody of British forces who were responsible for their detention throughout that time.

iii) The hooding of the claimants with sandbags during their transportation to Camp Bucca was inhuman and degrading and violated article 3 of the European Convention as well as amounting to an assault. MRE also suffered an eye injury caused when a...