“all executive, legislative and judicial authority necessary to achieve its objectives, to be exercised under relevant UN Security Council Resolutions, including Resolution 1483 (2003), and the laws and usages of war.”
“to continue to undertake a broad range of tasks to contribute to the maintenance of security and to ensure force protection. These include activities necessary to counter ongoing security threats posed by forces seeking to influence Iraq’s political future through violence. This will include combat operations against members of these groups, internment where this is necessary for imperative reasons of security …”
“It is not the business of the English courts to enforce against the UK state rights of foreign nationals arising under Afghan law for acts done on the authority of the UK government abroad, where to do so would undercut the policy of the executive arm of the UK state in conducting foreign military operations.”
“if act of state is a defence to the use of lethal force in the conduct of military operations abroad, it must also be a defence to the capture and detention of persons on imperative grounds of security in the conduct of such operations. It makes no sense to permit killing but not capture and detention, the military then being left with the invidious choice between killing the enemy or letting him go.”
“We are left with a very narrow class of acts: in their nature sovereign acts — the sorts of thing that governments properly do; committed abroad; in the conduct of the foreign policy of the state; so closely connected to that policy to be necessary in pursuing it; and at least extending to the conduct of military operations which are themselves lawful in international law (which is not the same as saying that the acts themselves are necessarily authorised in international law). For the purpose of these cases, we do not need to go further and inquire whether there are other circumstances, not limited to the conduct of military operations which are themselves lawful in international law, in which the defence might arise.”
“(i) that the act should be an exercise of sovereign power, inherently governmental in nature; (ii) done outside the United Kingdom; (iii) with the prior authority or subsequent ratification of the Crown; and (iv) in the conduct of the Crown’s relations with other states or their subjects.”
“In the nature of things, the use of armed force abroad involves acts which would normally be civil wrongs not only under English law but under any system of municipal law. People will be detained or killed. Their property will be damaged or destroyed. It would be incoherent and irrational for the courts to acknowledge the power of the Crown to conduct the United Kingdom's foreign relations and deploy armed force, and at the same time to treat as civil wrongs acts inherent in its exercise of that power.”
“In proceedings in tort governed by foreign law, HM Government may rely on the doctrine of Crown act of state to preclude the court passing judgment on the claim if the circumstances are such as stated in [the judgment of Baroness Hale at] paras 36 and 37. For the avoidance of doubt, the conduct and/or policy in question do not have to be lawful in international law.”
“The provisions of the Geneva Conventions of12 August 1949 and of this Protocol must be fully applied in all circumstances to all persons who are protected by those instruments, without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflict.”
“Crown act of state must be potentially applicable as much to acts in the execution of policy-makers' decisions as it is to the decisions themselves. It would not otherwise be a coherent doctrine.”
“There is a more satisfactory answer to the hypothetical problem of governmental torture and deliberate governmental maltreatment. Given the strength of the English public policy on the subject, a decision by the United Kingdom government to authorise or ratify torture or maltreatment would not as a matter of domestic English law be a lawful exercise of the royal prerogative. It could not therefore be an act of state. Nor would there be any inconsistency with the proper functions of the executive in treating it as giving rise to civil liability.”
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
“nonetheless, if the contracting state is to comply with its obligations under article 5 para 4 in this context, the ‘competent body’ should provide sufficient guarantees of impartiality and fair procedure to protect against arbitrariness. Moreover, the first review should take place shortly after the person is taken into detention, with subsequent reviews at frequent intervals, to ensure that any person who does not fall into one of the categories subject to internment under international humanitarian law is released without undue delay.”
“In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”
“Article 202 Every act which causes bodily injury to a person such as murder, wounding, battery or any other kind of assault renders the perpetrator liable to pay compensation. Article 204 Other than the examples mentioned above, every wrong which causes harm to another person renders the perpetrator liable to pay compensation.”
“The right to compensation also covers moral injury: any wrongful interference (“ta’adi”) with the freedom, moral standing, honour, reputation, social standing or financial position (creditworthiness) of another person renders the perpetrator liable to pay compensation.”
“a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”
“The most frequently cited examples of jus cogens norms are the prohibition of aggression, slavery and the slave trade, genocide, racial discrimination, apartheid and torture, as well as basic rules of international humanitarian law applicable in armed conflict, and the right to self determination.”
“Coalition Forces Security Internee Process 1. Consistent with the Fourth Geneva Convention, the following standards will apply to all persons who are detained by Coalition Forces when necessary for imperative reasons of security (hereinafter “security internees”): (a) In accordance with article 78 of the Fourth Geneva Convention, Coalition Forces shall, with the least possible delay, afford persons held as security internees the right of appeal against the decision to intern them. (b) The decision to intern a person shall be reviewed not later than six months from the date of induction into an internment facility. … (c) The operation, condition and standards of any internment facility established by the Coalition Forces shall be in accordance with Section IV of the Fourth Geneva Convention…”
“(1) Any person who is detained by a national contingent of the MNF for imperative reasons of security in accordance with the mandate set out in UNSCR 1546 (hereinafter ‘security internee’) shall, if he is held for a period longer than 72 hours, be entitled to have a review of the decision to intern him. (2) The review must take place with the least possible delay and in any case must be held no later than seven days after the date of induction into an internment facility. (3) Further reviews of the continued detention of any security internee shall be conducted on a regular basis but in any case not later than six months from the date of induction into an internment facility. (4) The operation, condition and standards of any internment facility established by the MNF shall be in accordance with section IV of the Fourth Geneva Convention. (5) Security internees who are placed in internment after30 June 2004 must in all cases only be held for so long as the imperative reasons of security in relation to the internee exist …”
“Everything published in the Official Gazette shall be considered the official and valid text and shall enter into force on the date of publication unless stipulated otherwise.”
“Enabling the public to gain ready access to the legal rules which organise society is one of the conditions required to establish a modern democratic state. It is for this reason that the interim Constitution has determined that laws should be published in the Official Gazette and the date of publication considered as the date on which the law enters into force unless otherwise stated. From its beginnings in the early 1920s until today, the Official Gazette has fulfilled this important role as a single place of reference for any person wishing to consult any text (act, order, decree, regulation, circular, instruction) issued by the public authorities ...”
“Laws shall be published in the Official Gazette and shall take effect on the date of their publication, unless stipulated otherwise.”
“A national contingent of the MNF shall have the right to apprehend persons who are suspected of having committed criminal acts and are not considered security internees (hereinafter “criminal detainees”) who shall be handed over to Iraqi authorities as soon as reasonably practicable.”
“3 Cdo Brigade advanced towards Basrah from the south, fighting to secure the town of Abu Al Khasib (population 100,000), 10km to the south east. In some areas the Brigade met very stiff resistance and was engaged in protracted firefights including hand to hand combat over the period 30 March to 3 April before the area was secured.”
“located a defensive position that appeared to be a hangover from the Iran/Iraq war, and decided to occupy it. This time a fleet of requisitioned Iraqi eight-ton trucks moved them to their new position about 30 kilometres east of Basra.”
“3 Commando Brigade Reconnaissance Force (BRF) were positioned at the leading edge of 40 Commando’s area of responsibility, facing a suburb of Basra, Abu al-Khasib, that stretched south for several kilometres between a major road and the Shatt al-Arab waterway.”
“A 15-hour battle ensued during which 40 Cdo took over 200 enemy prisoners of war…”
“12 PWs released on AP3 following 100% check of internment facility. PWs found not to be in facility.”
“When initially processed he claimed to be a civilian and to have been detained in error. In order to determine the validity of his claim, a board was convened to conduct a preliminary investigation into the claim. The Board conducted a preliminary examination of the individual in order to determine whether there was a cause to question the detainee’s status before a full Tribunal convened under the requirements of Article 5 of the Third Geneva Convention 1949. In the case of the above individual, the Board reached the conclusion that there was no evidence to doubt that the person was a civilian status [sic], and there was no evidence to support an assertion that he had committed a belligerent act against coalition forces. It was further satisfied that there were no further realistic investigations that could be undertaken in respect of this individual’s case. In these circumstances, there is no reason for the continued detention of the individual, and further investigation into the case by way of formal tribunal is not required. The release of the above individual is hereby authorized. ”
“The PWs will be processed by the US MP Bn and provided with an HRE/Personal Effects. At this stage PWs identified as UK PWs will be passed to the PW Admin Unit (PWAU) and their PW number checked against the PW database record. If the photograph on record matches the individual and his record is not annotated for detention or internment he will be directed to a holding area. There will be 4 holding areas, one for each release location. … Prisoners to be released will be loaded onto contracted buses with a guard and taken to their destination.”
“In respect of a person who is deprived of his liberty or, more generally, is confronted with law enforcement officers, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is, in principle, an infringement of the rights set forth in article 3.”
“(1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces. (2) Members of other militias and members of other volunteer corps, including those organised resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war. (3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.”
“These ‘regular armed forces’ have all the material characteristics and all the attributes of armed forces in the sense of sub-paragraph (1): they wear uniform, they have an organized hierarchy and they know and respect the laws and customs of war.
“those who at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.”
“The parties to the conflict shall not intern protected persons, except in accordance with the provisions of article 41, 42, 43, 68 and 78.”
“If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment.”
“There is no intermediate period between what might be termed the invasion phase and the inauguration of a stable regime of occupation. Even a patrol which penetrates into enemy territory without any intention of staying there must respect the [Geneva] Conventions in its dealings with the civilians it meets.”
“Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.”
“To determine whether a state of occupation exists, it is necessary to look at the area concerned and determine whether two conditions are satisfied: first, that the former government has been rendered incapable of publicly exercising its authority in that area; and secondly, that the occupying power is in a position to substitute its own authority for that of the former government.”
“the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.”
“the United Kingdom authorities had reason to believe that he might be a person who could be detained as a prisoner of war or whose internment was necessary for imperative reasons of security ...”
“Screening interviews will be conducted with all those claiming civilian status to determine if they are innocent civilians (on the basis of their account and any other information held in respect of the individual). This is a 2 stage process: a. Determine whether they are civilian; b. Determine if they are innocent (i.e. a senior non-mil[itary] Ba’ath party member would not be released as he could potentially be retained as an internee).”
“Should any doubt arise as to whether persons having committed a belligerent act and having fallen into the hands of the enemy belong to any of the categories enumerated in article 4 [i.e. prisoners of war], such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.”
“A person who takes part in hostilities and falls into the power of an adverse Party shall be presumed to be a prisoner of war, and therefore shall be protected by the Third Convention, if he claims the status of prisoner of war, or if he appears to be entitled to such status ... Should any doubt arise as to whether any such person is entitled to the status of prisoner of war, he shall continue to have such status and, therefore, to be protected by the Third Convention and this Protocol until such time as his status has been determined by a competent tribunal.”
“Decisions regarding … internment shall be made according to a regular procedure to be prescribed by the Occupying Power in accordance with the provisions of the present Convention. This procedure shall include the right of appeal for the parties concerned. Appeals shall be decided with the least possible delay. In the event of the decision being upheld, it shall be subject to periodical review, if possible every six months, by a competent body set up by the said Power.”
“An unresolved issue is the evidentiary standard to be applied in the initial challenge to detention. Clear and convincing evidence? A preponderance, or a mere ‘reason to suspect’? There is no agreed upon standard.”
“Where there was a doubt as to the individual’s account he was retained pending further investigation and a formal Art 5 tribunal if necessary. If there was no reason to doubt the account the individual was accepted as being a civilian and duly released.”
“On all the evidence available to the interviewing panel, they must determine if there is any doubt as to the status of the individual. If there is a doubt then the UK is bound to determine that doubt in accordance with Art 5 Geneva III. If there is no reason to doubt the claim of the individual then there is no requirement to hold a formal tribunal. There are 3 possible determinations: a. The individual is a PW – RETAIN b. There is doubt as to the status of the individual – RETAIN FOR POSS A5 c. There is no reason to doubt the individual’s claim as a civilian – GO TO STAGE 2.”
“In accordance with the wording of article 5, if the panel had any doubt as to the status of the individual, they retained him as a POW. The status of POW, and the privileges it conferred, could only be relinquished if there was no doubt that the individual was a civilian. The rationale was that POW status was protected under international law and could not be lightly relinquished.”
“Should any doubt arise as to whether persons having committed a belligerent act ... belong to any of the categories enumerated in article 4, ...”
“A person who takes part in hostilities and falls into the power of an adverse Party shall be presumed to be a prisoner of war …”
“It should be noted that the Service Police Investigation Team are currently working on 80 ‘retained’ cases. These cases are proving extremely difficult to investigate due to a lack of any paperwork relating to the individual PW and difficulties in making enquiries in the home area claimed by the individual. Basra is under UK control, however, it contains a number of ‘out of bounds’ (OOB) areas and without detailed local knowledge (which may not be available) the ‘door to door’ investigation of the cases may … be impossible.”
“… even where the identity of a prisoner had been established, this was only the start of the problems. Depending on the account given, in order to investigate the claim the investigators would normally be required to travel to interview witnesses or organisations (such as an employer or records office). There was the primary problem of language and the lack of translators. Each investigator required not only an interpreter but an interpreter who could be trusted. Secondly, any investigation was potentially hazardous. It could take the military police to a remote location where there might be a danger of ambush or kidnap and they would therefore need full security in order to carry out the investigation. Those who have visited Basra know that there are parts of Basra you should not visit for long, and certainly not without proper security. Alternatively, it might be the wrong or a false address or indeed the witness might not agree to speak for fear of reprisal. There was also the possibility of revenge against a family given the ignominy of capture. Added to this was the geographical spread of Iraqi forces, and those captured reflected this trend. Many of Saddam’s forces in the south of Iraq were drawn from the north of Iraq. … Iraq is larger than France and, given the distances involved and the security problems, it was almost impossible to travel from the south to the north of Iraq. In such circumstances, it is hard to envisage how any such claims might be properly investigated at all.”
“In case of doubt whether a person is a civilian, that person shall be considered to be civilian.”
“Law of Armed Conflict. All military operations by UK forces and from UK territory are to be conducted in accordance with the UK’s obligations under Law of Armed Conflict (also known as international humanitarian law) and UK national law. Further guidance on these legal obligations is contained in Annexes B and H, Annexes B and H contained, respectively, Rules of Engagement and rules dealing with targeting. and legal advice will be available at all times when required.”
“25. PW and Detainees. The processing of PWs and detainees is to be in accord with the provisions of the Law of Armed Conflict. You have a legal liability to acquaint yourself with the Geneva Conventions and Protocols and you are responsible for ensuring that all members of UK contingents and components comply with them. Any PW and detainee handling by UK forces is to be conducted strictly in accordance with the provisions of JWP 1-10.”
“PW and Detainees. You have a legal liability to acquaint yourself with the Geneva Conventions and the First Additional Protocol in relation to the taking and handling of PWs (your Legal Advisor, or NCHQ Legal Advisor will provide detailed advice), and you are responsible for ensuring that all members of UK Contingents and Components involved in PW and Detainee handling comply with the Third Geneva Convention and [are] guided by the provisions of JWP 1-10 ‘Prisoner of War Handling’.”
“2. The method of PW handling is mandated by the [Geneva Conventions] and monitored by the International Commission for the Red Cross (ICRC). A capturing force effectively takes ownership of its PW and is responsible for their protection, shelter, feeding, med and welfare needs. All commanders are to ensure that those under their command are aware of their legal responsibilities under the GC.”
“If captors are unsure whether personnel fall into the above definitions then they should be treated as PW and their status will be determined later by the Prisoner of War Handling Organisation (PWHO).”
“Stay put, we are coming to you”
“In one particular incident whilst at Umm Qasr port, MRE was struck hard on the forehead with a rifle butt causing a large gash. He was then almost immediately subjected to a barrage of brutal blows to the head and face in the form of punches by the same British soldier causing the claimant to stagger and fall over. He was left bleeding profusely from the nose and mouth.”
“Tell me what happened on that first night in the tent”
“You are detained by the British forces on behalf of the United Kingdom”
“The soldier spoke to me through a Lebanese interpreter. He asked my name and where I had been brought from. I gave him my name and told him I had been brought from the sea. He said, “who brought you?”
“We concluded that we were captured and detained by British forces. We based this on the uniforms which we had seen on the soldiers, their vehicles and their flags and because the soldier that spoke classical broken Arabic told us that we were captured by the British forces.”
“boats of 539 Assault Squadron Royal Marines (ASRM), with support from 42Cdo RM began clearing the waterways north of Umm Qasr.”
“This was where I assumed that boats would come into the back of the ship. There was a machine to pull the boats up into the ship. The wall to my right was metal but where the ramp bit was there was no wall to my right and I could see directly out onto the sea. I thought at that moment that it seemed that the ship was maybe waiting for other boats to come inside it. The ramp was about seven or eight metres wide.”
“At the back of the ship was a huge open doorway in a metal frame. The bottom half of the door was closed up to the middle like a barrier, but the top half was open. There was a roof covering it. I did not understand the function of the door but as the space inside was a garage I thought perhaps it opened to allow vehicles off the ship. I believe it would need to have been fully closed when the ship was sailing because the water was very near to us. The door was metal and in two parts, but it was not solid, it had large gaps in a grid form.”
“A little to my right hand side … the floor of the garage sloped down like a ramp and I could see that the back of the ship was open so that the sea was coming against the ramp, around a metre or two below the level we were standing on. The ramp went down into the sea. I think now that there must have also been a door at the back of the ship to allow boats in – otherwise, I would not understand the purpose of the water and ramp in the back of the ship. The floor of the garage was metal and I think there were yellow lines painted on it which I thought might be to act as paths for walking.”
“Thank God we heard that you were fine from your friends [KSU], [GRX], and [MRE]”
“Since sight deprivation can be achieved practicably and more effectively by a less de-humanising means it is difficult to conceive how a return to the use of hoods could be justified whether militarily, legally or as a matter of policy.”
“Hooding is prohibited at any time, for whatever purpose”
“I could not understand why they would do such a thing to another human being. They were treating me like I was an animal.”
“The water tanks are up and running in all 11 accommodated cages, giving the prisoners ample water to drink, wash and ablute with. A supply load of 75,000 L a day is organised which must be sufficient for under 5,000 PWs.”
“(5) Members of crews … of the merchant marine … of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.”
“Unless the merchant vessel … is taking part in hostile operations …, there is no reason why the crew should not benefit from the more favourable treatment and be released. The captor will need to make an assessment of whether the crew of the merchant vessel is likely to undertake activities that will help the military action of the enemy, and if he considers that internment is necessary for his security, the crew is entitled to prisoner of war status.”
“Between September 2006 and March 2007, Operation Sinbad sought to root out militias and hand security over to newly vetted and stronger Iraqi security forces while kick starting economic reconstruction. Criminality, political assassinations and sectarian killings, all of which were rampant in 2006, receded somewhat and – certainly as compared to elsewhere in the country – a relative calm prevailed. Yet this reality was both superficial and fleeting. By March-April 2007, renewed political tensions once more threatened to destabilise the city, and relentless attacks against British forces in effect had driven them off the streets into increasingly secluded compounds. Basra’s residents and militiamen view this not as an orderly withdrawal but rather as an ignominious defeat. Today, the city is controlled by militias, seemingly more powerful and unconstrained that before.”
“The detailed and accurate recording of the TQ [tactical questioning] or interrogation product is crucial for use in any potential future prosecution, for intelligence purposes, and to rebut any subsequent allegations of abuse. Each TQ or interrogation session must be audio or video recorded and this may be done either overtly or covertly. Additionally, contemporaneous notes should be taken during each TQ or interrogation session in order that an immediate record is available and in order that a written record is retained in the event of a failure of the electronic recordings. Where a detainee has subsequently been interned, a detailed summary of the TQ or interrogation sessions must be produced using the contemporaneous notes and the tape recordings. This summary together with the original tape recording must be provided with all other documentary evidence within 48 hours of the initial detention.”
“As discussed earlier this evening, I have concerns regarding the handling of Internee 1057. He has arrived at the DTDF [Divisional Temporary Detention Facility] with extensive bruising over his upper back and arms. This bruising is linear, and suggestive of being struck repeatedly with an implement. I suggest that it is unlikely these injuries were sustained during a struggle, he appears to have been deliberately beaten. On arrival at the DTDF, I estimate that the bruising was older than six hours, but less than three days. I can’t be any more exact than that, I’m not a specialist in forensics. I think this needs to be investigated, and I suspect you’re the man to do it.”
“Good news, internee 1057 does not wish to make any complaints.”
“As I entered the Alpha through the main door, I proceeded into the first room on the left where I stopped and detained the [Bravo].”
“As I entered entry point 2 (as per sketch plan), I told Private [P] to detain the unknown male located in room 7 (as per sketch plan). The unknown male was sat down messing about with an [IED]. The male was seen doing this in room 3, he was detained in room 7 after running into this room.”
“I cannot state whether the door was locked or not. The door came open easily.”
“Lt Fulton was not in the Alpha at this time and cannot comment.”
“I did not see the Bravo messing about with the device as I was in the other Alpha at that time.”
“I would always decide which soldier was the detaining soldier because that would mean they would be escorting him all the way through.”
“Initial reports stated that [the detainee] was found applying camouflage to a shaped charge IED found in the house.”
“Now that we have clarified the exact circumstances of his arrest, none of the facts contradict his story. We will use the next sessions to gain further information on Ali Jaleel who may be responsible for the recovered IEDs. Without any further information, it will not be possible to continue this interrogation for many more sessions.”
“We have no evidence or reporting on this individual beyond the fact that he was present in a house in which an IED was recovered. He claims that he has no link to the IED and that another individual Ali Jaleel is responsible for it. We have no reason to disbelieve 91057 [Mr Al-Waheed]. Unless further information or forensics can link 91057 to the IED, his case should be re-evaluated by the DIRC.”
“It is assessed that the subject has no further relevant information. He has shown his willingness to provide MNF with any information required and is assessed to no longer be of any intelligence value.”
“It is assessed that the subject has no further information of relevance to divulge. There is a dearth of exploitable information regarding this subject, and it does appear to the JFIT that this is a case of ‘wrong place, wrong time’. He has shown his willingness to provide MNF with any information required but his knowledge and access appears to be limited. It is assessed that, in the absence of ... further intelligence regarding this subject, he is of no further intelligence value to the JFIT.”
“I have to say that if Lieutenant Fulton were to state in a second statement that what he stated originally is hearsay or wrong then the original decision of the DIRC should in my legal opinion stand as no one was given a perception that influenced them which is misleading.”
“The soldiers immediately grabbed me and threw me to the ground forcefully so that I was lying face down. They then beat me viciously. They beat me with the butts of their guns and kicked me with their boots. They were wild; randomly hitting me anywhere and everywhere on my body. The soldiers were also shouting and yelling.”
“I think the bag was made from wool but I am not sure. The bag aggravated my sinusitis and I soon found it difficult to breathe. The soldiers also put goggles on top of the bag to cover my eyes and placed ear muffs on my ears. The bag was loose at first and it was possible for me to see my feet but when they put the goggles on my head I could not see anything.”
“Detainee move to exit of Alpha. Plasticuffs applied (if not already done), sensory deprivation equipment applied. Detainee is now led (‘Bravo Run’) to snatch / boat / helicopter. Maintain shock of capture.”
“Once I had been placed into the vehicle, I can remember being on a journey for about 15 minutes before I arrived at another camp. Since the journey in fact took over two hours, it is difficult to make sense of this time estimate – unless Mr Al-Waheed thought that he was being asked at this point about the journey from Basra Airport to Shaibah, as is perhaps suggested by the reference to “another” camp. During this journey I was not ill-treated again either physically or mentally, by any of the soldiers present throughout this time.”
“I am sitting trying to gather information my head is ... has headache because of so much beating ... I am sitting ... just a while ... I will try hard and remember.”
“When arrested he fled the living room into another room where he was forcibly restrained resulting in bruising to the Subject (see TQ Reports).”
“In order to maintain operational security, it might in some cases be necessary to obscure the vision of captured or detained persons (e.g. when transporting through or past militarily sensitive sites or activity). Ordinarily, this can easily be achieved by travelling in enclosed vehicles, or vehicles with opaque glass. Where this is not practicable, any captured or detained person may be required to wear blacked out goggles specifically issued for that purpose, but only for the time and extent necessary to preserve operational security.”
“The concurrent use of blacked out goggles and ear defenders should only be used in exceptional circumstances, and then only for the time and extent necessary to preserve operational security. … A record should be made of every occasion when sensory deprivation, such as blacked out goggles and/or the application of ear defenders, takes place: this is to include the date/time, a brief explanation of the circumstances and the justification, and this information should be included in the detention record of the person concerned.”
“Taken in combination, the discomfort and sensory deprivation of internees may be interpreted as deliberate conditioning.”
“Internees are required to wear blacked out goggles and earprotectors concurrently, throughout their time in the holding areas of the B[rigade] P[rocessing] F[acility]. Goggles and ear protectors are removed during medical examination and Tactical Questioning. PM (A) considered the concurrent deprivation of both senses (sight and hearing) to be unnecessary and that this may be interpreted as deliberate conditioning, in order to maximise vulnerability and the ‘shock of capture’.”
“The officer spoke very loudly and his language was so disgusting that I cannot bear to repeat what he said. He cursed me, and insulted my sisters, my mother and my wife, and he insulted my honour and my dignity when he said those things.”
“The teaching of the ‘harsh’ permitted insults not just of the performance of the captured prisoner but personal and abusive insults including racist and homophobic language. The ‘harsh’ was designed to show anger on the part of the questioner. It ran the risk of being a form of intimidation to coerce answers from prisoners. It involved forms of threats which, while in some senses indirect, were designed to instil in prisoners a fear of what might happen to them, including physically.”
“There can be no doubt that the practices carried out under the guidelines then in place were unacceptable. The harsh technique included the following elements which could be deployed as the questioner considered necessary. The shouting could be as loud as possible. There could be what was described as uncontrolled fury, shouting with cold menace and then developing, the questioner’s voice and actions showing psychotic tendencies, and there could be personal abuse. Other techniques were described as cynical derision and malicious humiliation, involving personal attacks on the detainee’s physical and mental attitudes and capabilities. He could be taunted and goaded as an attack on his pride and ego and to make him feel insecure. Finally, he could be confused by high speed questioning, interrupting his answers, perhaps misquoting his reply.”
“whilst prolonged removal from association with others is undesirable, whether such a measure falls within the ambit ofarticle 3 of the Convention depends on the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned.”
“In the present context the minimum conditions for fairness were (i) that the internee should be told, so far as possible without compromising secret material, the gist of the facts which are said to make his detention necessary for imperative reasons of security; (ii) that the review procedure should be explained to him; (iii) that he should be allowed sufficient contact with the outside world to be able to obtain evidence of his own; and (iv) that he should be entitled to make representations, preferably in person but if that is impractical then in some other effective manner.”
“Without these basic safeguards, there is the potential for an illiterate, inarticulate or poor internee to be wrongly held in internment.
“Internees are still not able to represent themselves in person to review bodies and this is exacerbated by the particularly poor standard of translation of legal letters from Arabic into English, submitted by internees. In some cases the grammar and syntax used by the translator is such a ‘pidgin level’ of English so as to render the content of the letter virtually worthless. This substantially undermines the duty of care UK owes to those in internment and reinforces the concerns raised by PM(A) in his last report.”
“Internees. UK Forces operating abroad may have a power to intern civilians under a host nation’s law where they pose an imperative threat to the security of the force; such power may derive from the host state’s own domestic law or from a UN Security Council Resolution.”
“(a) the law of that other country relating to limitation shall apply in respect of that matter for the purposes of the action or proceedings … ; and (b) … the law of England and Wales relating to limitation shall not so apply.”
“A claim for damages resulting from whatever (kind) of unlawful act shall not be heard after the lapse of three years from the day on which the injured person became aware of the injury and of the person who caused it; in all cases the claim will not be heard after the lapse of 15 years from the day of occurrence of the unlawful act.”
“(1) The time limit barring the hearing of the case is suspended by a lawful excuse such as where the claimant is a minor or lacks legal capacity and has no guardian or is absent in a distant foreign country, or where the case is between spouses or ascendants and descendants, or if there is another impediment rendering it impossible for the claimant to claim his right. (2) The period which elapses while the excuse still exists (lasts) shall not be taken into account for the running of the time limitation.”
“As a matter of Iraqi law, and in respect of those heads of claim brought pursuant to rights under Iraqi law, was the primary limitation period of three years provided for in article 232 of the Iraqi Civil Code suspended by operation of article 435(1) of the Code as a result of the fact that CPA Order 17 rendered it impossible for the claimants to claim their rights in Iraq?”
“In all legal orders, legal standards or models such as ‘good faith’, ‘fair dealing’, ‘the reasonable man’, or ‘the conscionable man’ play an important role. They provide by their vagueness and indeterminacy legal norms tolerant of conflicting solutions in broad penumbral areas, even while in the core area they admit into the law the more coherent insights of the society’s widely shared convictions.”
“The impediment may not relate to the person, but to material, compulsory circumstances, similar to force majeure, which render it impossible for the claimant to claim his right. … Of this type are the beginning of a war, the outbreak of civil strife, or the declaration of martial law. If something of this sort prevents the courts from doing their work, then it is not possible for the claimant to make a claim to the judiciary for his right.”
“If I had known that there was a complaint office I would have filed a complaint. It was not a matter of fear. After all the humiliation and injustice there is no doubt I would have filed a complaint.”
“The limitation period is interrupted by a claim made to the judicial authorities, even when, owing to an excusable error, the claim is made in a court which is not competent. Thus if a creditor begins proceedings in court against his debtor, but the case is not decided until after the time limit has expired, the case shall be heard thereafter.”
“If the limitation period has been interrupted, a new limitation period equivalent to the original limitation period starts to run.”
“Article 25 (a) If the civil claimant lodges his case with the civil court before the criminal proceedings have been lodged, he may bring his civil case before the criminal court, on condition that the civil court be asked to drop the case. … (b) If the civil claimant lodges his case with the civil court after lodging criminal proceedings, he may not subsequently lodge it with the criminal court, unless he requests that the civil court drop the case. Article 27 If the decision on a civil case is suspended in accordance with article 26 and the criminal case is subsequently terminated, the civil court must proceed with the civil case and issue a judgment.”
“A criminal suit is initiated by an oral or written complaint presented to an investigative judge, an investigator, a responsible person within a police station, or any member of the judicial service, by the party injured from the crime, one standing in his place legally, or any person with knowledge of its occurrence …”
“Public servants authorised to investigate crimes and take steps in connection therewith within the limits of the powers granted to them by specific laws.”
“(a) that the injury in question was significant; and (b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and (c) the identity of the defendant …”
“(a) the length of, and the reasons for, the delay on the part of the plaintiff; (b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 …; (c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant; (d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action; (e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages; (f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”
“Undue … simply means excessive. It means greater hardship than the circumstances warrant. Even though a claimant has been at fault himself, it is an undue hardship on him if the consequences are out of proportion to his fault.”
“(i) That it is not sufficient to cross the ‘undue hardship’ threshold by reason only of the fact that the foreign limitation period is less generous than that of the English jurisdiction. (ii) That the claimant must satisfy the court that he or she will suffer greater hardship in the particular circumstances than would normally be the case. (iii) That in considering (ii) the focus is on the interests of the individual claimant or claimants and is not a balancing exercise between the interests of the claimants on one hand and the defendant on the other.”
“whether the time period prescribed by the limitation provision is such that its application would deprive the claimant of his claim in circumstances where he did not have a reasonable opportunity to pursue it if acting with reasonable diligence and with knowledge of its potential application.”
“Justice requires and our law provides that those basic purposes be qualified in certain cases: for example, reasonable allowance must be made for periods of limitation to differ according to the cause of action (a shorter period being appropriate, for example, for a personal injuries claim than for an action concerning the title for land) and for the extension of the periods to cover such matters as the incapacity of a claimant through nonage or unsoundness of mind, or the concealment by the fraud of the defendant of the facts giving rise to the cause of action; and latent injury unknown to a claimant.”
“The court has a wide discretion in determining whether it is equitable to extend time in the particular circumstances of the case. It will often be appropriate to take into account factors of the type listed insection 33(3) of the Limitation Act 1980 as being relevant when deciding whether to extend time for a domestic law action in respect of personal injury or death. These may include the length of and reasons for the delay in issuing the proceedings; the extent to which, having regard to the delay, the evidence in the case is or is likely to be less cogent than it would have been if the proceedings had been issued within the one-year period; and the conduct of the public authority after the right of claim arose, including the extent (if any) to which it responded to requests reasonably made by the claimant for information for the purpose of ascertaining facts which are or might be relevant. However, I agree with what the Court of Appeal said in Dunn v Parole Board[2009] 1 WLR 728 , paras 31, 43 and 48 that the words of section 7(5)(b) of the HRA mean what they say and the court should not attempt to rewrite them. There can be no question of interpreting section 7(5)(b) as if it contained the language ofsection 33(3) of the Limitation Act 1980 .”
“battery or trespass to the person is actionable without proof that the victim has suffered anything other than the infringement of his right to bodily integrity.”
“The right to compensation also covers moral injury: any wrongful interference with the freedom, moral standing, honour, reputation, social standing or financial position (creditworthiness) of another person renders the perpetrator liable to pay compensation.”
“Consistency is important, because it assists in achieving justice between one claimant and another and one defendant and another. It also assists to achieve justice by facilitating settlements.”
“In a straightforward case of wrongful arrest and imprisonment the starting point is likely to be about£500 for the first hour during which the plaintiff has been deprived of his or her liberty. After the first hour an additional sum is to be awarded, but that sum should be on a reducing scale so as to keep the damages proportionate with those payable in personal injury cases and because the plaintiff is entitled to have a higher rate of compensation for the initial shock of being arrested. As a guideline we consider, for example, that a plaintiff who has been wrongly kept in custody for 24 hours should for this alone normally be regarded as entitled to an award of about£3,000 . For subsequent days the daily rate will be on a progressively reducing scale.”
“We consider that where it is appropriate to award aggravated damages the figure is unlikely to be less than a£1,000 . We do not think it is possible to indicate a precise arithmetical relationship between basic damages and aggravated damages because the circumstances will vary from case to case. In the ordinary way, however, we would not expect the aggravated damages to be as much as twice the basic damages except perhaps where, on the particular facts, the basic damages are modest.”
“(1) That the law as to the factors which must be weighed and taken into account in assessing damages is in general the same as the law in England. (2) That the principles governing and defining the approach of an appellate court that is invited to hold that damages should be increased or reduced are the same as those of the law in England. (3) That to the extent to which regard should be had to the range of awards in other cases which are comparable such cases should as a rule be those which have been determined in the same jurisdiction or in a neighbouring locality where similar social, economic and industrial conditions exist.”
“(3) No award of damages is to be made unless, taking account of all the circumstances of the case, including— (a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and (b) the consequences of any decision (of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made. (4) In determining— (a) whether to award damages, or (b) the amount of an award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation underarticle 41 of the Convention .”
“If the [European Court of Human Rights] finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
“It is not confined to articulated statements of principle. … The focus is rather upon how the court applies article 41: the factors which lead it to make an award of damages or to withhold such an award, and its practice in relation to the level of awards in different circumstances.”
“The Court recalls that it is well established that the principle underlying the provision of just satisfaction for a breach of article 6 is that the applicant should as far as possible be put in the position he would have enjoyed had the proceedings complied with the Convention's requirements … The Court will award monetary compensation under article 41 only where it is satisfied that the loss or damage complained of was actually caused by the violation it has found, since the state cannot be required to pay damages in respect of losses for which it is not responsible.”
“The principle with regard to pecuniary damage is that the applicant should be placed, as far as possible, in a position in which he or she would have been had the violation found not taken place, in other words, restitutio in integrum.”
“Such elements do not lend themselves to a process of calculation or precise quantification. Nor is it the Court's role to function akin to a domestic tort mechanism in apportioning fault and compensatory damages between civil parties. Its guiding principle is equity, which above all involves flexibility and an objective consideration of what is just, fair and reasonable in all the circumstances of the case, including not only the position of the applicant but the overall context in which the breach occurred. Its non-pecuniary awards serve to give recognition to the fact that moral damage occurred as a result of a breach of a fundamental human right and reflect in the broadest of terms the severity of the damage; they are not, nor should they be, intended to give financial comfort or sympathetic enrichment at the expense of the Contracting Party concerned.”
“The court routinely describes its awards as equitable, which I take to mean that they are not precisely calculated but are judged by the court to be fair in the individual case. Judges in England and Wales must also make a similar judgment in the case before them. They are not inflexibly bound by Strasbourg awards in what may be different cases. But they should not aim to be significantly more or less generous than the court might be expected to be, in a case where it was willing to make an award at all.”
“The great majority of such awards are made on an ‘equitable’ basis reflecting particular facts. No doubt the judges attempt to achieve a degree of internal consistency. But most of the decisions are not intended to have any precedential effect, and it is a mistake in my view to treat them as if they were.”
“the remedy of damages generally plays a less prominent role in actions based on breaches of the articles of the Convention, than in actions based on breaches of private law obligations … Where an infringement of an individual's human rights has occurred, the concern will usually be to bring the infringement to an end and any question of compensation will be of secondary, if any, importance.”
“Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.”
“The nature of [non-pecuniary] damage means that specific evidence cannot be required and that the assessment of compensation can only be based upon equitable principles. Nevertheless, just as the damages are no less real because of the difficulty of estimating them, so the determination of compensation should be no less principled because the task is difficult and imprecise. What is required is not the selection of an arbitrary figure but the application of principles which at least enable the reader of the judgment to discern the factors which led the Court to fix the sum awarded. Moreover, those principles must be capable of being applied in a consistent and coherent manner, so that the amount awarded can be regarded as just, not merely by reference to the facts of this case, but by comparison with other cases.”
“Looked at in isolation there is no logical reason why for one week of pain the right award should be£20 rather than£200 . All that can be said is that once you accept as a premise or convention that£20 is the right award for one week of pain, the right award for two weeks of similar pain is in the region of£40 and not in the region of£400 …”
“Awards made by the European Court to applicants from countries where the cost of living is relatively low tend to be low by comparison with awards to applicants from countries where the cost of living is much higher.”