1 00:00:03,160 --> 00:00:07,690 Welcome everybody to the want of veterans is to human rights. 2 00:00:07,690 --> 00:00:10,420 Very, very nice to have you here. My name is Laura Lazarus. 3 00:00:10,420 --> 00:00:20,050 I'm head of research and also a member of the law faculty and writing a little bit in the area of security and human rights. 4 00:00:20,050 --> 00:00:28,300 We're very, very happy to welcome Leigh Day here today and to welcome this collaboration between the student leader to discuss this 5 00:00:28,300 --> 00:00:38,080 groundbreaking or important case and the story of holding military operations to account in the human rights field. 6 00:00:38,080 --> 00:00:42,250 I'm not going to spend a long time generating myself. 7 00:00:42,250 --> 00:00:52,690 My job is to chair a successful panel which has already been marked by the fact that Lawrence Cawthorn, who is ill and unable to attend. 8 00:00:52,690 --> 00:01:02,020 We have the marvellous Professor Panopto Canada standing in at 15 minutes notice to to give us his thoughts. 9 00:01:02,020 --> 00:01:07,420 And I persuaded him that he had things to say. So that is that is excellent. 10 00:01:07,420 --> 00:01:14,760 We will start the panel today with the Reverend Nicholas Mercer of who needs very little introduction. 11 00:01:14,760 --> 00:01:21,730 We will then move on to get a fuller description of the case from Melanie. 12 00:01:21,730 --> 00:01:27,550 And then by that stage, I think Panopto will have a stronger sense of what it is he would like to say on this question, 13 00:01:27,550 --> 00:01:33,730 but I can assure you that Po knows many things and will be saying some very interesting things on these questions. 14 00:01:33,730 --> 00:01:41,930 So if I can call on the customers that start us off? Thank you very much. 15 00:01:41,930 --> 00:01:46,250 Good morning, and thank you very much for the invitation to come and speak today. 16 00:01:46,250 --> 00:01:52,940 Thank you to the Bonaventure Institute. Thank you to Leap Day and thank you for to redress for very kindly printing off the judgement 17 00:01:52,940 --> 00:01:58,190 for me because it would have overwhelmed the parish if I tried to print this judgement off, 18 00:01:58,190 --> 00:02:04,850 such as the thoroughness of Lord Justice Leggett. So I am really setting the context. 19 00:02:04,850 --> 00:02:09,380 I hope for today's conference. 20 00:02:09,380 --> 00:02:18,170 Six years ago, to this day, I was in Kuwait, in Camp Commando with the Americans as part of the first divisional headquarters, 21 00:02:18,170 --> 00:02:24,860 making preparations for the forthcoming invasion of Iraq. 22 00:02:24,860 --> 00:02:28,760 Little did I imagine that six years later, 23 00:02:28,760 --> 00:02:37,100 I would be sitting here in a conference in Oxford discussing some of the subsequent litigation that flowed from it. 24 00:02:37,100 --> 00:02:42,590 I don't want to be too controversial too early on, but it feels a bit like Brexit. 25 00:02:42,590 --> 00:02:54,470 We were rushed into a war. We were rushed into a war without proper planning, and the result was ensuing chaos and litigation. 26 00:02:54,470 --> 00:03:03,770 I can't help thinking about it every time. With this deadline of March, the whatever it is 29th approaches for us, we knew an invasion was imminent. 27 00:03:03,770 --> 00:03:10,280 We didn't even know we were going to invade from the south of Iraq until the beginning of January 2003. 28 00:03:10,280 --> 00:03:13,550 We were going to be a fixing position in the North. 29 00:03:13,550 --> 00:03:21,630 And so as not to be a combat indicator for the enemy, we were all sent away on holiday, so they didn't realise that leave. 30 00:03:21,630 --> 00:03:26,660 Otherwise it so it seemed that leave was cancelled. So to keep that air of normality. 31 00:03:26,660 --> 00:03:35,270 We did a sort of leave fate as well. I got back early to start working on the preparations for the invasion, but we had little or no time. 32 00:03:35,270 --> 00:03:40,370 And you can see what happens when you do that as a nation. 33 00:03:40,370 --> 00:03:46,160 I was a command legal adviser at the time that meant I was a senior lawyer for the 1st Armoured Division and the senior lawyer in theatre. 34 00:03:46,160 --> 00:03:53,780 I'm now a vicar. I haven't practised law for seven years, so I just want a bit of latitude. 35 00:03:53,780 --> 00:04:01,100 If I stumble into anything clumsily because actually without that day to day legal practise, you do, I think, lose some of your acumen. 36 00:04:01,100 --> 00:04:06,290 But I hope I can give you some useful backgrounds and insights into Lord Justice Leggett. 37 00:04:06,290 --> 00:04:11,510 Is that the correct term, Tony? He's been promoted since then, but anyhow, forgive me if I've got that wrong. 38 00:04:11,510 --> 00:04:18,410 But some insights into how we saw it, why we made the decisions we did, and what it is like to be a battlefield lawyer. 39 00:04:18,410 --> 00:04:23,390 One person has already said to me they'd like to join the army and I want them to see what gives them 40 00:04:23,390 --> 00:04:28,310 a flavour of what battlefield law looks like because we all practise law in our various fields of it, 41 00:04:28,310 --> 00:04:34,670 presuming that either is in a legal practise or as an NGO or as an academic with battlefield. 42 00:04:34,670 --> 00:04:41,060 Lawyers also have their place too, and it's a very different complexion to the practise of law. 43 00:04:41,060 --> 00:04:47,240 But Telecon was a legal test like no other. We engaged all four Geneva Conventions. 44 00:04:47,240 --> 00:04:50,030 Before that, we'd only really triggered one to three. 45 00:04:50,030 --> 00:04:59,870 It was the first time we'd use the protocol of 77 and the first time the International Human Rights Law began to intrude on the debate. 46 00:04:59,870 --> 00:05:03,980 Naturally, the law of armed conflict was in its infancy in the British Army. 47 00:05:03,980 --> 00:05:08,540 It was almost like a reserve occupation. Everyone has a battlefield role in the army. 48 00:05:08,540 --> 00:05:14,420 So when I first joined the army in 91, I met a dentist and she said, Well, I said, Do you do much dentistry and theatre [INAUDIBLE]? 49 00:05:14,420 --> 00:05:21,260 No, I'm an anaesthetist. So. So she switched over, and just as we did courts, martial and administrative law, 50 00:05:21,260 --> 00:05:24,980 we would switch over to battlefield law when there was a military operation. 51 00:05:24,980 --> 00:05:32,960 So it wasn't our day to day practise either. But jurisprudence in the laws of war has developed substantially since 2003, 52 00:05:32,960 --> 00:05:40,660 and now we all have the benefit of hindsight and the fruits of 16 years of litigation. 53 00:05:40,660 --> 00:05:45,670 And how this is battlefield law and the conditions are far from ideal. 54 00:05:45,670 --> 00:05:50,260 You worked from a large tent or an armoured vehicle. 55 00:05:50,260 --> 00:05:56,890 You move approximately every 10 days. You're living in a tent in the desert. 56 00:05:56,890 --> 00:06:01,240 You carry a respirator and weapon with you at all times. 57 00:06:01,240 --> 00:06:07,740 You sleep with them in your sleeping bag. The times we came under attack. 58 00:06:07,740 --> 00:06:16,530 So instead of going back for a good night's sleep, you were in a trench taking cover from enemy fire and then expected to go in and make your 59 00:06:16,530 --> 00:06:22,140 legal decisions as competently as you were expected to do in the time leading up to that. 60 00:06:22,140 --> 00:06:26,910 It is not easy. There's no library of resources. 61 00:06:26,910 --> 00:06:32,250 All I had was Robertson Gulf. It was quite entertaining when I arrived at the division because I turned up 62 00:06:32,250 --> 00:06:36,630 to an exercise with my Robertson wealth and sat down next to the commander. 63 00:06:36,630 --> 00:06:42,690 And one old soldier said in the old days, you used to have to bring a rifle on exercise. 64 00:06:42,690 --> 00:06:48,690 There is the added complication of being on coalition operations. 65 00:06:48,690 --> 00:06:53,760 You were working with other nations, in this case, the United States. That's not easy. 66 00:06:53,760 --> 00:06:57,210 You've only got to look at the administration at the moment and see how decisions are made. 67 00:06:57,210 --> 00:07:01,470 I'm not saying it was all tainted with Trump that we were in the Bush era. 68 00:07:01,470 --> 00:07:10,170 American lawyers had worked the process themselves, come to decisions, haven't bothered to consult, and it was really hard to row back from that. 69 00:07:10,170 --> 00:07:13,200 I think it was only out of politeness and courtesy and wanting to keep us on 70 00:07:13,200 --> 00:07:19,530 board that they even bothered to listen to what we had to say in legal meetings. 71 00:07:19,530 --> 00:07:25,200 And there were potential legal consequences for all of us, which I'll come onto because it bears some. 72 00:07:25,200 --> 00:07:34,350 It's of some importance when it comes to prisoners. But they would make decisions unilaterally, and we were then had to find out even what they were. 73 00:07:34,350 --> 00:07:40,620 And this was the first time that a war was fought with PGA HQ in the command structure. 74 00:07:40,620 --> 00:07:49,080 So again, this is a really important piece in that in the first Gulf War, the legal chain of command was literally I would I would be commander legal. 75 00:07:49,080 --> 00:07:53,570 I would simply go back to headquarters legal headquarters in the army. 76 00:07:53,570 --> 00:07:58,030 And they would give me a decision on whatever I was flagging up to them. 77 00:07:58,030 --> 00:08:01,990 In this war, HQ had come into being in 1997, 78 00:08:01,990 --> 00:08:08,950 which meant that the government were now involved in the legal making process and because of the turf war that goes on 79 00:08:08,950 --> 00:08:17,440 in the command structure had imposed themselves at a higher rank status to the military lawyers on the battlefield. 80 00:08:17,440 --> 00:08:24,370 So everything had to have a government makeover before you were allowed to implement a decision that was not easy. 81 00:08:24,370 --> 00:08:29,140 And I don't think we accepted very little of what advice they had to give to us, 82 00:08:29,140 --> 00:08:36,140 not least because some of them got chopped over from other departments and whether whereas I think in one case, they'd be doing weights and measures. 83 00:08:36,140 --> 00:08:41,460 So checking whether the apples and pears in the markets were the right weight. 84 00:08:41,460 --> 00:08:51,560 Were moved over to Battlefield Law and then outranked us. Imagine the implications for that in a law firm. 85 00:08:51,560 --> 00:08:59,370 So I think that's an important element that we need to be aware of because that has some impact on the decisions we made or tried to make. 86 00:08:59,370 --> 00:09:01,470 So the answer and judgement in all its enormity, I mean, 87 00:09:01,470 --> 00:09:10,320 I played a small part in that I gave evidence for a day largely to stop the Modi trying to take an avenue and cut off different avenues of retreat. 88 00:09:10,320 --> 00:09:17,250 But it's based heavily on violations of the European Convention on Human Rights and at the time of telecom, 89 00:09:17,250 --> 00:09:22,440 the application of the Human Rights Act on the battlefield was contested legal territory. 90 00:09:22,440 --> 00:09:27,720 This was arguably the single most contentious issue in the Iraq War. 91 00:09:27,720 --> 00:09:34,470 I'd followed the case of Bank, of which quite closely because I was in Heidelberg at the time of Benkovic and would go across to Strasbourg, 92 00:09:34,470 --> 00:09:39,750 and I knew France was Hampson because we were speaking at an ecclesiastical law conference together. 93 00:09:39,750 --> 00:09:51,270 I just not. And so she would take me through the the various legal arguments as to why human rights law might appear on the battlefield, 94 00:09:51,270 --> 00:10:00,540 but obviously bank of which was decided against the applicants. But of course, the legal reasoning underlying that was potentially applicable. 95 00:10:00,540 --> 00:10:04,710 If we were in occupation, we had jurisdiction and if we had jurisdiction. 96 00:10:04,710 --> 00:10:11,190 Ergo, the Human Rights Act might apply. So what to do in those circumstances? 97 00:10:11,190 --> 00:10:19,740 So I went for a preliminary meeting with PGA HQ in January 2003 and raised the Human Rights Act and its applicability. 98 00:10:19,740 --> 00:10:26,160 And that was just left lying on the table. They said they'd get back to us on that and of course, never did. 99 00:10:26,160 --> 00:10:29,160 We then had this problem. When operations did the Human Rights Act apply? 100 00:10:29,160 --> 00:10:36,300 I discussed it with the GSC 1st Armoured Division and said, Look, we don't know Postbank Benkovic, whether it will apply or not. 101 00:10:36,300 --> 00:10:42,090 But actually the best thing to do on the battlefield is apply the highest possible legal standard. 102 00:10:42,090 --> 00:10:46,350 I was conscious that we could be under legal attack. It's called defensive law. 103 00:10:46,350 --> 00:10:50,820 And actually, if you take the moral high ground in war, it's immensely powerful. 104 00:10:50,820 --> 00:10:58,350 It is an operational enabler because your enemies see that when you capture someone, you treat them humanely and decently. 105 00:10:58,350 --> 00:11:02,160 And if you try and apply the highest standards, who could possibly criticise you? 106 00:11:02,160 --> 00:11:10,100 Well, I think the Hallstrom judgement possibly does just that. Even establishing a review for prisoners was contentious. 107 00:11:10,100 --> 00:11:15,380 We wanted to set up a review system for detainees and internees. 108 00:11:15,380 --> 00:11:19,520 This is what the Ministry of Defence wrote to me when I suggested this. 109 00:11:19,520 --> 00:11:26,300 There is nothing in GC for which requires us to review the detention of detainees internees. 110 00:11:26,300 --> 00:11:35,540 Whilst it might be appropriate for individuals locked up following a Saturday night in Brixton, they are not appropriate for detainees internees. 111 00:11:35,540 --> 00:11:41,540 I mean, the sarcasm and the casual way and the slightly racist way that this is presented is horrifying, 112 00:11:41,540 --> 00:11:45,800 but that's the sort of thing that you will be presented with. In other words, shut up. 113 00:11:45,800 --> 00:11:51,940 You're not reviewing it. Well, we just ignored that, but we were ignoring an order. 114 00:11:51,940 --> 00:11:56,870 So, yeah, we will review it, sorry, a set one in process. Again, this is what we're doing. 115 00:11:56,870 --> 00:11:59,060 And we were absolutely right, we probably didn't get it right, 116 00:11:59,060 --> 00:12:04,370 but I think the thrust of what we tried to do got it right and following our scheme of all of this, 117 00:12:04,370 --> 00:12:09,470 having been told Human Rights Act didn't apply and let specialist ousted the Human Rights Act. 118 00:12:09,470 --> 00:12:15,530 Then, of course, in the Court of Appeal in Alaska, the emojis accepted that did apply in detention. 119 00:12:15,530 --> 00:12:24,520 So having made that hullabaloo in 2003, they then roll over in litigation three years later. 120 00:12:24,520 --> 00:12:29,620 I hope, anyhow, that gives you some context into the environment in which we were working. 121 00:12:29,620 --> 00:12:33,850 So moving on to prisoners and status review and again, 122 00:12:33,850 --> 00:12:42,610 I don't think enough emphasis has been given an answer to the military context in which we found ourselves. 123 00:12:42,610 --> 00:12:49,780 It was an enormous problem. I wrote a memo on the 24th of March 2003. 124 00:12:49,780 --> 00:12:56,950 It was internal. This was advice to snipers on the shuttle Basra as to who they could engage. 125 00:12:56,950 --> 00:13:01,150 Having been placed there by the commander of seven armoured brigade there, 126 00:13:01,150 --> 00:13:09,970 and I started off by saying there has been evidence that coalition forces have been engaged not only by Iraqi regular forces, 127 00:13:09,970 --> 00:13:18,080 but by persons wearing civilian clothing. So three days into the war, we don't get a regular war. 128 00:13:18,080 --> 00:13:21,710 We get a war in which people are in civilian dress. 129 00:13:21,710 --> 00:13:29,030 And if you go to a young soldier there with his rifle sitting there taking shots through the night, keep making the enemy, keep its head down. 130 00:13:29,030 --> 00:13:38,260 Who can he shoot? And how do I how am I sure that he's confident to shoot the right person and not get into legal trouble? 131 00:13:38,260 --> 00:13:44,500 He's probably got a reading age of 11. It's really tough I've got to have give him certainty, 132 00:13:44,500 --> 00:13:50,620 and I've got to be legally certain myself if he doesn't shoot the wrong person on day seven of the war. 133 00:13:50,620 --> 00:13:53,170 I wrote this because I kept a diary. 134 00:13:53,170 --> 00:14:03,250 I went by helicopter with the C to Umm Qasr to see the P.W. Collection area again and a unique experience where I saw over 3000 prisoners of war, 135 00:14:03,250 --> 00:14:07,960 all in different compounds separated by strands of barbed wire. 136 00:14:07,960 --> 00:14:14,320 Very few were in uniform, but all had been captured in various battles over the last seven days. 137 00:14:14,320 --> 00:14:21,670 Some looked terrified. Others defined. It is days like this which make being a military law lawyer so worthwhile. 138 00:14:21,670 --> 00:14:25,570 So we were presented with 3000 prisoners. Think of the sheer volume of that. 139 00:14:25,570 --> 00:14:31,540 Think how difficult it is to run a conference. With 42 of us, okay. 140 00:14:31,540 --> 00:14:39,140 3000 people, you've got to put up the barbed wire, the latrines, the feeding, the medical. 141 00:14:39,140 --> 00:14:47,480 Regarding the shift patterns. The administration, the IT systems. 142 00:14:47,480 --> 00:14:55,600 It's this is a really, really major task, it's fine sitting here in Oxford, trading in the desert. 143 00:14:55,600 --> 00:15:03,030 Help. The we which we had thought tell it, one is still secret, and quite rightly so. 144 00:15:03,030 --> 00:15:07,410 However, it was cast very widely by the Mahdi, 145 00:15:07,410 --> 00:15:14,220 and the reason for that is that it's based on obviously articles for one and for two of the Third Geneva Convention, 146 00:15:14,220 --> 00:15:23,290 and it reads that reads as follows members of the armed forces of a party to the conflict that's easy and other volunteer cause. 147 00:15:23,290 --> 00:15:27,970 Sorry. Other militias and other volunteers caught, so who were those militias? 148 00:15:27,970 --> 00:15:30,580 And who were those other volunteer calls? 149 00:15:30,580 --> 00:15:40,520 And it goes on in part to members of other militias and members of other volunteer cause, including those of organised resistance movements. 150 00:15:40,520 --> 00:15:52,130 So your category of combatants is potentially huge. So we've got militias, members of volunteer course, organised resistance movements in two parts. 151 00:15:52,130 --> 00:15:57,290 And someone had done a serious amount of research on who that might include. 152 00:15:57,290 --> 00:16:06,530 The vast majority are in civilian clothes. So when it comes to determination and that's your category of combatants, the people you can engage, 153 00:16:06,530 --> 00:16:15,690 they were raiding parties into Basra at night, you know, Land Rovers would go in and beat up headquarters and things in the Baath Party. 154 00:16:15,690 --> 00:16:22,590 It's really difficult because that's part of the command structure. That that's what we were dealing with. 155 00:16:22,590 --> 00:16:24,840 And as I said, over 3000 prisoners of war, 156 00:16:24,840 --> 00:16:32,440 most were in civilian clothing and claiming to be civilians that had been captured in various battles was my note. 157 00:16:32,440 --> 00:16:38,410 That's what I thought I was dealing with. And there was a potential for over 2000 tribunals. 158 00:16:38,410 --> 00:16:48,890 And I just raised this question is this type of review possible in expeditionary warfare, which is is deliberately light and fast? 159 00:16:48,890 --> 00:16:54,170 And also in asymmetric warfare, the first Iraq war was fought on conventional lines. 160 00:16:54,170 --> 00:16:59,840 It was really Naito vs. the Warsaw Pact that was a catastrophic defeat for the Iraqis. 161 00:16:59,840 --> 00:17:09,760 This time they realised that's not going to work. We had intelligence people being told to change into civilian clothing. 162 00:17:09,760 --> 00:17:15,550 So status review, so we had a massive problem on our hands, we had to review potentially up to 2000 prisoners. 163 00:17:15,550 --> 00:17:20,020 We anticipated 15000, by the way. 164 00:17:20,020 --> 00:17:30,190 We were very pleased to have got away so lightly, but just think what 2000 prisoners looks like in terms of review and review apparatus. 165 00:17:30,190 --> 00:17:33,940 We didn't have any specific Article five regulations. 166 00:17:33,940 --> 00:17:39,850 We just had Board of Enquiry Regulations and I found the commandant of the Prisoner of War camp after a phone call from my lawyer, 167 00:17:39,850 --> 00:17:48,160 who I had embedded with them, saying he's just chucking out 250 at a time because he can't feed them. 168 00:17:48,160 --> 00:17:56,260 So we stopped that and said, no, you've got to review them properly. I had 24 hours to sort that out and we came up with the Article five, 169 00:17:56,260 --> 00:18:01,510 Article four and a half reviews, which we then went to Basra to the ICRC in Basra, 170 00:18:01,510 --> 00:18:10,450 which they sent back to the ICRC headquarters in Geneva and approved and on the green light from approval from Geneva. 171 00:18:10,450 --> 00:18:19,070 We went ahead and implemented them the next day. And we use the test, if any doubt arises to someone's status, 172 00:18:19,070 --> 00:18:23,750 then they stay as a prisoner of war because we saw that as protected status, we were protecting them. 173 00:18:23,750 --> 00:18:29,260 Some of the cases we've looked at before with, particularly in the light of the American. 174 00:18:29,260 --> 00:18:33,700 Suggestions for dealing with prisoners of war had shown cases in World War Two, 175 00:18:33,700 --> 00:18:40,450 where prisoners of war had been executed because they'd been left with senior members of their regiment and were 176 00:18:40,450 --> 00:18:47,010 being put to death because they were seen not to have fought to the bitter end that was during the Second World War. 177 00:18:47,010 --> 00:18:56,750 So we didn't want prisoners of war to be executed. By other people within their militias or the regular forces by virtue of having been captured. 178 00:18:56,750 --> 00:19:03,320 So we saw this as protected status. But Leggett says as follows, our approach was wrong. 179 00:19:03,320 --> 00:19:08,990 If Article five had been properly applied, the first question for the interviewing panel should have therefore have been to 180 00:19:08,990 --> 00:19:14,120 consider whether there was evidence the individual had committed a belligerent act. 181 00:19:14,120 --> 00:19:19,190 If the answer was yes, it would have been right for the panel to proceed in accordance with the guidance given. 182 00:19:19,190 --> 00:19:26,750 But if the answer was no, and then so on and so forth, keeping the individual in detention was wrong. 183 00:19:26,750 --> 00:19:32,930 But I don't accept that approach. And I'll tell you why. 184 00:19:32,930 --> 00:19:41,740 The first question, I think, is, well, if a person is a combatant, it's irrelevant whether they've committed a belligerent act. 185 00:19:41,740 --> 00:19:48,320 You can just as I think one human rights bloggers put. On the issue of uniform. 186 00:19:48,320 --> 00:19:56,840 Just because someone's not in uniform doesn't mean they're not a combatant. You can catch a combatant on the loo in bed in his pyjamas. 187 00:19:56,840 --> 00:20:01,990 You could catch him on day one of the war. He hasn't even got the. He's just coming along. 188 00:20:01,990 --> 00:20:08,550 Any civilian clothes, he's still a combatant, he's still entitled to prisoner of war statement status. 189 00:20:08,550 --> 00:20:13,070 It doesn't matter if they commit a belligerent act or not. 190 00:20:13,070 --> 00:20:20,120 And if an individual is a combatant, we don't have to show that he was fighting or not just the way it is. 191 00:20:20,120 --> 00:20:27,450 And in any event, how could we know? When I set up the Article four and a Half Tribunal's Article five tribunals? 192 00:20:27,450 --> 00:20:32,700 I knew the Provost Marshal really well, so I had to investigate every single claim. 193 00:20:32,700 --> 00:20:37,910 So I set them off with 10 claims. Right? Here's your first 10. 194 00:20:37,910 --> 00:20:41,900 Good luck, and I managed to get military police to do the investigations, 195 00:20:41,900 --> 00:20:48,830 I went back a week later thinking that was a decent amount of time to get this done. 196 00:20:48,830 --> 00:20:55,900 And said, where if you got to thinking we would be racing through them, we haven't determined anything yet. 197 00:20:55,900 --> 00:21:02,570 Well, why not says, well, how do we get the evidence? The people we've interviewed say they come from the north of Iraq. 198 00:21:02,570 --> 00:21:12,090 Well, Saddam did that deliberately because he had he didn't want armed forces coming from a locality because he had an uprising in Basra. 199 00:21:12,090 --> 00:21:16,740 So he would move troops around the place so he didn't get pockets of resistance to his regime. 200 00:21:16,740 --> 00:21:22,560 How does policemen travel the whole length of the country in a war to determine their status? 201 00:21:22,560 --> 00:21:29,250 It's impossible. So, you know, as a prosecutor for many years, I had some sympathy with the collection of evidence. 202 00:21:29,250 --> 00:21:36,270 But it's fine. It's difficult enough collecting evidence in times of peace on a battlefield that is nigh on impossible. 203 00:21:36,270 --> 00:21:42,510 And then we get clobbered for time limits, reach of time limits later. 204 00:21:42,510 --> 00:21:47,100 There were other problems, too. The Americans were the spearhead of the operation. 205 00:21:47,100 --> 00:21:50,430 In other words, the Americans headed up towards Al Nasiriya, 206 00:21:50,430 --> 00:21:54,240 and I knew that once they got across the bridge there in up to Baghdad, we were sort of safe. 207 00:21:54,240 --> 00:21:59,280 But we were called relief in place. In other words, we would be given pockets of prisoners. 208 00:21:59,280 --> 00:22:04,440 Here you are, 200 prisoners. Here you are, 20 prisoners. 209 00:22:04,440 --> 00:22:10,170 They'd be handed over from the Americans. That's fine. But they become our prisoners. 210 00:22:10,170 --> 00:22:18,720 Where do we get the evidence from, from your American colleagues? So that in itself is very difficult. 211 00:22:18,720 --> 00:22:27,580 There's four security issues. If I let someone out and he's a combatant by mistake, he can come and kill me. 212 00:22:27,580 --> 00:22:33,230 That's fine, that makes law very different from human rights law that we look at on a day to day basis. 213 00:22:33,230 --> 00:22:38,200 We get it wrong. That could kill me or someone else. 214 00:22:38,200 --> 00:22:47,140 Well, which one of you has prepared to take that risk? If you've got any doubt you keep someone in, it's like a massive great chess game. 215 00:22:47,140 --> 00:22:54,890 You know, we capture troops, plunk protected status, you know, if you look at it like that, but we're dead. 216 00:22:54,890 --> 00:23:00,590 They could coordinate resistance, they could do an attack, they could bring intelligence and so on and so forth. 217 00:23:00,590 --> 00:23:05,870 So from our perspective, this all looks very different. 218 00:23:05,870 --> 00:23:12,290 So anyhow, a few and the other thing is the manpower bill, full potential review of 12000 people. 219 00:23:12,290 --> 00:23:16,820 You know, the British government can't even deal with asylum and immigration. You know what? 220 00:23:16,820 --> 00:23:20,090 How we expected to cope with a load like that. 221 00:23:20,090 --> 00:23:23,750 How many people would you estimate for lawyers? Would you estimate for? 222 00:23:23,750 --> 00:23:29,110 Would that sort of OK? Would you estimate for would that sort of number? 223 00:23:29,110 --> 00:23:34,500 Do it. What would lead them to do if you wanted to deal with thousand tribunals? 224 00:23:34,500 --> 00:23:42,590 What would it look like? It would run to hundreds. We haven't even got 100 in the British Army. 225 00:23:42,590 --> 00:23:47,570 I've been given a five minute warning already, let me go through as quickly as I can. 226 00:23:47,570 --> 00:23:55,430 Just looking at the individual cases, first of all, Al Saren and Justice Legate assertion that he was wrongly identified as a combatant. 227 00:23:55,430 --> 00:23:59,480 Well, I think that's I've dealt with that already in that he doesn't have to be in 228 00:23:59,480 --> 00:24:03,740 civilian clothes to be it doesn't have to be in uniform to be a combatant. 229 00:24:03,740 --> 00:24:10,100 That doesn't mean he's a he's not a combatant. I don't know what the records look like when he arrived at the prisoner of war camp, 230 00:24:10,100 --> 00:24:17,140 but the only evidence there was the Marines said they had a 15 hour battle that they allocate. 231 00:24:17,140 --> 00:24:22,690 Well, that's pretty good enough for me. I'm not going to get much more to go on. 232 00:24:22,690 --> 00:24:29,570 The battle for alcohol. I don't know, where am I going to find the presents evidence as to who captured them? 233 00:24:29,570 --> 00:24:41,110 It's really difficult. Looking at the case of Murray and KSU that I did a bit of work on this, they found a weapon. 234 00:24:41,110 --> 00:24:47,100 On the boat, they found the weapon was hidden. They found bullets on the boat. 235 00:24:47,100 --> 00:24:55,200 Well, I hear what they say about potentially protect themselves against bandits, but there was a military ID card in my pocket. 236 00:24:55,200 --> 00:25:02,530 Commander Legal, I'm never going to let him out in a million years. I'm amazed he got out. Not a hope. 237 00:25:02,530 --> 00:25:08,060 Of letting him out, it just wouldn't happen. And nor what I do with the other people on the boat. 238 00:25:08,060 --> 00:25:15,080 And also this time frame. Justice Leggett says at most 10 days of their intent, they should have taken place within 10 days of their internment. 239 00:25:15,080 --> 00:25:18,800 Utterly unrealistic nonsense. It's simply impossible. 240 00:25:18,800 --> 00:25:22,220 And what about the other two thousand? They're sitting there waiting. 241 00:25:22,220 --> 00:25:27,140 No one's ever brought up. Well, I mean, fill your boots. But it is impossible to do that. 242 00:25:27,140 --> 00:25:31,370 Simply impossible. Just look at the manpower. Look at the resources that we had. 243 00:25:31,370 --> 00:25:35,660 Think about it from a battlefield perspective. It's simply not going to happen. 244 00:25:35,660 --> 00:25:38,300 Let me tell you what I was doing during those 10 days. 245 00:25:38,300 --> 00:25:45,530 The war begins on the 21st of March, so I'm heavily involved in all the fighting that's going on. 246 00:25:45,530 --> 00:25:50,120 The first mention I have irregular combatants is the 24th of March. 247 00:25:50,120 --> 00:25:59,180 I see it firsthand on the 28th. On the 29th of March, I've moved into a tomato field, so I'll move you to Huntington or Hudson. 248 00:25:59,180 --> 00:26:04,290 You can sit in a field and tell me what's going on in Oxford. 249 00:26:04,290 --> 00:26:09,940 Let's say you'd had civil disobedience in Oxford overnight, and you've got 2000 people locked up. 250 00:26:09,940 --> 00:26:17,120 Come off, it's not going to happen. Remarkably, to our defence, we put in a review for all prisoners. 251 00:26:17,120 --> 00:26:22,460 Every we put an Article five tribunals for all the prisoners of war who claim civilian status, 252 00:26:22,460 --> 00:26:27,200 every single criminal detainee who was detained because we were now in occupation. 253 00:26:27,200 --> 00:26:31,940 So we're dealing with law and order was given legal representation and made submissions to me, 254 00:26:31,940 --> 00:26:37,730 and every single internee was reviewed at a 24 hour, seven day and 28 day period. 255 00:26:37,730 --> 00:26:45,880 We were running four different categories of prisoners simultaneously or with different legal regimes. 256 00:26:45,880 --> 00:26:52,600 And we did that with six people. We asked the minister of defence who people they said we ought to put up a submission paper. 257 00:26:52,600 --> 00:26:57,130 Yeah, right. So we fought as hard as we could. 258 00:26:57,130 --> 00:27:04,690 And sadly, if we hadn't fought so hard, we wouldn't be in court. 259 00:27:04,690 --> 00:27:10,930 Finally, prisoner abuse, if I may just finish on this note, I'm not a human rights lawyer seeking damages. 260 00:27:10,930 --> 00:27:15,130 I'm a lawyer who was also an eye witness to prisoner abuse. 261 00:27:15,130 --> 00:27:19,240 I don't care what they say in the press. I saw it. I was there. I complained. 262 00:27:19,240 --> 00:27:25,300 I don't have any financial stake in this game. It happened and it happened systematically. 263 00:27:25,300 --> 00:27:29,380 And it happened probably for all the time that we were in the theatre of Operations. 264 00:27:29,380 --> 00:27:34,300 Looking at the case of Al Wahid, which is still this is still going on in 2007. 265 00:27:34,300 --> 00:27:39,340 So from 2003 to 2007, prisoner abuse was going on. 266 00:27:39,340 --> 00:27:42,400 I'm not alone. The Red Cross saw it. 267 00:27:42,400 --> 00:27:51,940 There were officers within my headquarters, commandant of the Prisoner of War Camp, CEO of the Media Ops, who all saw it and complained to the GFC. 268 00:27:51,940 --> 00:28:01,690 It did happen. Forget the public narrative. This occurred, and we know the good thing about Al Wahid is we know it's still going on in 2007. 269 00:28:01,690 --> 00:28:08,020 But the narrative of systematic prisoner abuse has been upended by Al Sweetie. 270 00:28:08,020 --> 00:28:13,570 It appears the residual cases from what I've learnt from Thomas Hampson is that anything 271 00:28:13,570 --> 00:28:19,900 that has the pill tag on it is being put in the bin when it comes to proper investigation. 272 00:28:19,900 --> 00:28:28,010 It's tainted, therefore it's going in the bin. I don't accept that. Let me make it clear because most of those interrogations are on film. 273 00:28:28,010 --> 00:28:33,110 So we've established through various questions that 720 interrogations are on film. 274 00:28:33,110 --> 00:28:36,380 So whatever the middle man and whatever the professional ethics in the middle, 275 00:28:36,380 --> 00:28:41,900 you just switch on play and you can find out whether those cases are genuine or not. 276 00:28:41,900 --> 00:28:47,510 And as the head of the previous head of, I had said that the tapes contain the good, the bad and the ugly. 277 00:28:47,510 --> 00:28:53,780 I strongly suspect that those allegations made to the ICC are largely correct. 278 00:28:53,780 --> 00:28:58,670 And it may be that the M.D. know that those allegations are correct, 279 00:28:58,670 --> 00:29:04,250 but would prefer to play the narrative of bent human rights laws which play so beautifully. 280 00:29:04,250 --> 00:29:12,740 Everyone loves. Well, we don't. But you know what I mean? And Altham is more depressing evidence of abuse. 281 00:29:12,740 --> 00:29:17,870 And it's remarkable that it's received little or no press coverage. 282 00:29:17,870 --> 00:29:28,700 So in conclusion, Al Strong again goes against the grain of current the current public narrative in that again, it establishes abuse by UK forces. 283 00:29:28,700 --> 00:29:34,730 This is a narrative that the public want to hear, and one that they believe that this is all bent lawyers. 284 00:29:34,730 --> 00:29:43,460 It never happened. It did. As a human rights blogger says it has wider ramifications for claims in relation to detention. 285 00:29:43,460 --> 00:29:45,350 And that's certainly true. 286 00:29:45,350 --> 00:29:54,610 But for the reasons I've just given, I have severe reservations about the army being treated too harshly for the way we approach that. 287 00:29:54,610 --> 00:29:58,630 You know, against the grain, against the Ministry of Defence, we worked heaven, 288 00:29:58,630 --> 00:30:05,020 moved heaven and earth to review everyone in our detention and make sure that they were properly treated. 289 00:30:05,020 --> 00:30:10,500 And in anything, we've been victims of our own kindness and legal concern. 290 00:30:10,500 --> 00:30:16,830 But in broader terms, accountability in conflict has been avoided yet again for another generation. 291 00:30:16,830 --> 00:30:23,970 No one could have predicted this narrative. I did think with the Rome Statute that people will be held to account. 292 00:30:23,970 --> 00:30:30,780 And this would usher in a new era. Actually, we've seen a totally different complexion to all of this, however. 293 00:30:30,780 --> 00:30:35,610 I think, as I said in an email to Thomas Hansen recently, it's not all bad. 294 00:30:35,610 --> 00:30:45,120 This is sort of the survivors ball. The threat of accountability has meant improvements in conduct in combat. 295 00:30:45,120 --> 00:30:54,150 There is now in 2016. I'm pleased to say a far greater awareness of prisoners, their rights and our obligations. 296 00:30:54,150 --> 00:31:00,630 The five techniques used in 2003 morphed into harsh and have now become direct 297 00:31:00,630 --> 00:31:05,100 challenge judicially approved and the treatment of the prisoner on the battlefield, 298 00:31:05,100 --> 00:31:10,290 I hope, is immeasurably better than it was 16 years ago. 299 00:31:10,290 --> 00:31:16,950 And I'm pleased to say that the battle over the Convention for Human Rights and its applicability on the battlefield has been established, 300 00:31:16,950 --> 00:31:18,540 and that's really important, 301 00:31:18,540 --> 00:31:26,130 particularly when our US counterparts are trying to argue that people are not combatants and therefore can be abused in Guantanamo. 302 00:31:26,130 --> 00:31:30,930 So forget not what it means to refuse someone combatant status. 303 00:31:30,930 --> 00:31:38,440 It's been a bloody time for lawyers. Lawyers have been attacked for trying to hold the state to account, 304 00:31:38,440 --> 00:31:43,960 and it's incumbent upon other lawyers and the legal profession not to fall in with the government, 305 00:31:43,960 --> 00:31:52,720 but to defend itself and our professional integrity. But there have been some notable victories and advances in the law. 306 00:31:52,720 --> 00:32:02,040 It's just that just as the first troops over the trench are the ones likely to be killed or injured, the same to applies to lawyers. 307 00:32:02,040 --> 00:32:19,480 Thank you. Thank you. 308 00:32:19,480 --> 00:32:29,050 Thank you very much for that insight into the context of the battlefield, which is a perfect way to start the discussion today. 309 00:32:29,050 --> 00:32:37,720 I'm not going to call them Melanie Jack Leigh day to work through the ulcer in case Melanie, before going to D-Day, 310 00:32:37,720 --> 00:32:45,880 authored Armed Conflict and Displacement with Cambridge University Press and is now working. 311 00:32:45,880 --> 00:33:10,700 She's talking. She talked the talk, and then she walked the walk. All right. 312 00:33:10,700 --> 00:33:13,550 OK. 313 00:33:13,550 --> 00:33:28,310 So I'm going to actually provide a whistle stop tour of the Iraqi civilian litigation, rather than focussing specifically on the office run judgement. 314 00:33:28,310 --> 00:33:39,560 The Iraqi civilian litigation is a general description of the many claims that were brought in the English court by Leigh 315 00:33:39,560 --> 00:33:49,670 Day on behalf of Iraqis alleging unlawful detention and mistreatment by British Armed Forces between 2003 and 2009. 316 00:33:49,670 --> 00:33:57,080 And they were brought under to legal basis the Human Rights Act and the Law of Torts. 317 00:33:57,080 --> 00:34:05,990 And it was common ground between the party that the law applicable to the tort claims would be and is the law of Iraq. 318 00:34:05,990 --> 00:34:14,660 We initially Leigh Day was only really involved in specific individual cases, and our work really began in 2006, 319 00:34:14,660 --> 00:34:24,530 when we instructed by a number of Iraqis and their families to when they're in cases where there were extreme allegations of abuse. 320 00:34:24,530 --> 00:34:30,890 We acted, for instance, on behalf of the family of the hamisa, who was the hotel receptionist. 321 00:34:30,890 --> 00:34:38,840 I was beaten to death by British forces while in their custody in September 20th, 2003. 322 00:34:38,840 --> 00:34:44,480 We also represented the victims of the notorious Ken Breadbaskets incident, 323 00:34:44,480 --> 00:34:49,440 where Iraqi civilians were held in suspicion of looting at Camp Breadbasket, 324 00:34:49,440 --> 00:34:57,320 then subjected to a number of physical and sexual abuse of the hands of British soldiers. 325 00:34:57,320 --> 00:35:02,810 These photographs were taken by a British soldier and who then brought them to his 326 00:35:02,810 --> 00:35:10,010 local photoshop to have developed and the staff at the shop called the police. 327 00:35:10,010 --> 00:35:17,990 We also acted in behalf of the Alhambra victims of the Waldemar incident, 328 00:35:17,990 --> 00:35:22,460 which was discovered by the news of the world some two years after the event. 329 00:35:22,460 --> 00:35:31,070 It concerned the beating and kicking of Iraqi teenagers by British soldiers during a riot in the town of Al Amara, 330 00:35:31,070 --> 00:35:36,890 and it was again it was filmed by another soldier who was shouting encouragement. 331 00:35:36,890 --> 00:35:48,920 So these cases and all our cases really private law claims brought against the Minister of defence then not public claims challenging Article two, 332 00:35:48,920 --> 00:35:54,440 Article three Investigations and there are no criminal prosecutions against individual soldiers. 333 00:35:54,440 --> 00:35:57,890 They're meant solely against the Ministry of Defence. 334 00:35:57,890 --> 00:36:07,370 There were some quite unusual features to these early cases in that vein, because they dealt with such extreme allegations of abuse and mistreatment. 335 00:36:07,370 --> 00:36:14,660 We also had the Minister of Defence give partial admissions of liability in the defences, 336 00:36:14,660 --> 00:36:21,500 and there were significant amount of evidence that came out through court martial proceedings or R&B investigations. 337 00:36:21,500 --> 00:36:27,410 In the case of the hamisa in the Ken breadbaskets and also video footage, 338 00:36:27,410 --> 00:36:31,850 we had a video footage and we had photographs in the camera baskets and al-Amari incidents, 339 00:36:31,850 --> 00:36:36,650 which meant that there was quite a lot of evidence we could rely on. 340 00:36:36,650 --> 00:36:45,380 So in these cases, the homicide case resolved in 2008, and the other case is resolved shortly afterwards. 341 00:36:45,380 --> 00:36:56,870 They were all at a relatively early stage of civil proceedings. Then the Baton Rouge enquiry, which was established in August 2008, 342 00:36:56,870 --> 00:37:07,250 explored in more detail some of these allegations that had emerged in court martial proceedings, such as the use of the five interrogation techniques. 343 00:37:07,250 --> 00:37:16,610 The chairman of the enquiry, Sir William Gates, published his report in 2011 and found that the hamisa had been subjected, 344 00:37:16,610 --> 00:37:21,500 subjected to violent and cowardly abuse and assault by British servicemen. 345 00:37:21,500 --> 00:37:30,870 And it also condemned corporate failure at the Ministry of Defence over the use of banned interrogation methods in Iraq. 346 00:37:30,870 --> 00:37:40,770 So I am going quite fast, but is quite a lot of many years of litigation to go through after these initial claims resolved. 347 00:37:40,770 --> 00:37:47,400 We started receiving instructions from other former Iraqi detainees who allege that they'd been abused by British 348 00:37:47,400 --> 00:37:56,610 Armed Forces for varying durations and various degrees varying degrees of assaults between 2003 and 2009. 349 00:37:56,610 --> 00:38:07,440 And so during the period in 2000, between 2009 and 2010, we were instructed by a further 300 claims Iraqi individuals. 350 00:38:07,440 --> 00:38:12,060 So we progressed these claims through really seeking disclosure from the defendants. 351 00:38:12,060 --> 00:38:20,610 And once all of this was going on on 7th of July 2011, we, the Grand Chamber of the European Court of Human Rights, 352 00:38:20,610 --> 00:38:30,120 handed out to significant decisions which would really signal a real shift in the way these human rights claim would be litigated. 353 00:38:30,120 --> 00:38:38,940 So there's going to be a decision. We're also really importantly for us, the al-Qaeda decision. 354 00:38:38,940 --> 00:38:55,620 Was it held that the UK had clear obligations under Article five to protect the rights of liberty and the right to liberty, 355 00:38:55,620 --> 00:39:03,390 and that their obligations were not displaced by the UN Security Council resolution nine, 15 46. 356 00:39:03,390 --> 00:39:08,640 So it's set out a real framework for our detention claims. 357 00:39:08,640 --> 00:39:18,060 And so if shortly after that, we entered into confidential discussions with the Ministry of Defence and over time, 358 00:39:18,060 --> 00:39:27,720 about 90 percent of these claims were resolved out of court. We took on another 600 claims in March 2013. 359 00:39:27,720 --> 00:39:40,590 And so when we arrived at the end of this kind of this process, we started with a plea issuing, 360 00:39:40,590 --> 00:39:46,950 not issuing sorry serving some of these statements of close case on an uncertain amount of lead cases. 361 00:39:46,950 --> 00:39:51,840 And that's when the defendants as well set off their defences and a number of 362 00:39:51,840 --> 00:40:04,740 generic issues came out when were identified as quite clearly in February 2004. 363 00:40:04,740 --> 00:40:11,850 Mr Justice Leggett has you as then became the judge in charge of the case management, 364 00:40:11,850 --> 00:40:17,460 and he ordered that these generic issues should be dealt with by way of preliminary issues. 365 00:40:17,460 --> 00:40:22,530 So it's like a series of hearing dealing with these points of principles. 366 00:40:22,530 --> 00:40:28,620 These are very these legal issues, which would then would be able to apply to the lead claims. 367 00:40:28,620 --> 00:40:33,150 And then from that, we'd be able to assess the merits of the remaining case. 368 00:40:33,150 --> 00:40:38,920 And then and then so so some of these preliminary issues were. 369 00:40:38,920 --> 00:40:46,890 So how'd you come back? Some of these issues were when all the way to the Supreme Court. 370 00:40:46,890 --> 00:40:48,090 So there was quite a lot of them. 371 00:40:48,090 --> 00:40:58,350 I can't really go through all of them, but I just wanted to mention the displacement dislocation articles of Article five primarily issue, 372 00:40:58,350 --> 00:41:06,150 which went to the Supreme Court and which the Supreme Court handed down its judgement in January 2017. 373 00:41:06,150 --> 00:41:13,020 This came initially was about whether Article five was displaced by the lack 374 00:41:13,020 --> 00:41:18,720 specialists of international humanitarian law and application of al-Qaeda. 375 00:41:18,720 --> 00:41:27,180 But then it slightly morphed into a different argument when the Hasan judgement came out in the European Court of Human Rights, 376 00:41:27,180 --> 00:41:37,710 where the grand chamber came up with this had in this new model novel modification tests, 377 00:41:37,710 --> 00:41:45,510 which meant that it which meant that Article five now was capable of being modified by international humanitarian 378 00:41:45,510 --> 00:41:54,210 law in respect of detention of those who were held for security reasons in an international armed conflict. 379 00:41:54,210 --> 00:41:56,550 In January seven, 2017, 380 00:41:56,550 --> 00:42:06,810 the Supreme Court in Al Wahid and Mohammed held that this modifications test could be applicable in a non-international armed conflict. 381 00:42:06,810 --> 00:42:20,980 This meant Article five one about the legal basis for detention could be modified by the UNHCR 15 46, and the detention would be lawful. 382 00:42:20,980 --> 00:42:27,480 The detention of an individual would be lawful, provided that it was necessary for imperative reasons of security. 383 00:42:27,480 --> 00:42:30,020 Also Article five for which is. 384 00:42:30,020 --> 00:42:38,000 Procedural safeguards could also be modified by international humanitarian law this time, so the detention would be lawful, 385 00:42:38,000 --> 00:42:48,320 provided that certain minimum standards which were device derived from the Geneva Conventions would be existed at the time. 386 00:42:48,320 --> 00:42:56,930 So these this is a this was the decision of the Supreme Court, but it didn't look into the facts of each case. 387 00:42:56,930 --> 00:43:01,790 The determination on the facts would have to be done by the judge at the trial. 388 00:43:01,790 --> 00:43:06,980 So this is what in part, the ouster and judgement was about. 389 00:43:06,980 --> 00:43:14,480 There were also a number of other potentially prominent issues which I won't go into, 390 00:43:14,480 --> 00:43:19,730 such as the application of the scope of the doctrine of conduct to state the application 391 00:43:19,730 --> 00:43:25,490 of foreign limitation law to domestic proceedings and in case of transfer cases, 392 00:43:25,490 --> 00:43:44,010 joint liability and Iraqi law. So once all this was going on in December 2014, the Al-Quaeda enquiry report was published. 393 00:43:44,010 --> 00:43:50,010 This enquiry was set up to investigate allegations by a group of Iraqis who claim that the British 394 00:43:50,010 --> 00:44:01,350 forces had murdered 20 Iraqis and abused nine others following the Battle of Danny Boy in May 2004. 395 00:44:01,350 --> 00:44:06,930 The report dismissed the most serious allegations of torture and murder, 396 00:44:06,930 --> 00:44:12,780 concluding that they were wholly without foundation and entirely the product of deliberate lies. 397 00:44:12,780 --> 00:44:18,150 But it's still the chairman still found that these nine detainees had been mistreated, 398 00:44:18,150 --> 00:44:24,720 and some of this treatment amounted to ill treatment in breach of the Geneva Conventions. 399 00:44:24,720 --> 00:44:31,080 The emoji seised on these the the most serious conclusion. 400 00:44:31,080 --> 00:44:35,610 And on the same day, Michael Fallon, who is the defence secretary, 401 00:44:35,610 --> 00:44:43,890 gave a statement at the House of Commons calling for measures to stop unscrupulous lawyers. 402 00:44:43,890 --> 00:44:49,560 This marks for us a radical shift in the rhetoric, 403 00:44:49,560 --> 00:44:57,390 and we could see then a clear difference between the original outrage caused by the news of the world images, 404 00:44:57,390 --> 00:45:06,480 which we saw early on and the now different tabloid headlines from December 24 14 online onwards. 405 00:45:06,480 --> 00:45:19,770 So there's a new narrative that began to emerge at the time, and it was that of self-interested ambulance chasing lawyers, persecuting soldiers. 406 00:45:19,770 --> 00:45:33,090 So in this tense context, and despite all these at a vitriolic attacks in the media, we work tirelessly towards these. 407 00:45:33,090 --> 00:45:43,140 Our first full trial, three cases were selected as test claims to be dealt with during the first round of trial in June 2016, 408 00:45:43,140 --> 00:45:49,710 and each case, the way they were selected is that each case emanating from a different phase of the conflict. 409 00:45:49,710 --> 00:45:58,950 So Mr. outside Iran, who was captured and detained shortly after the commencement of the invasion. 410 00:45:58,950 --> 00:46:03,090 He was an annoyance at the invasion case. 411 00:46:03,090 --> 00:46:09,630 He, he and other prisoners were a claim that they once they were detained at the temporary camp, 412 00:46:09,630 --> 00:46:13,590 they had been made to face to face down on their back, 413 00:46:13,590 --> 00:46:23,400 while the British it on the front, while the British soldiers were running up and down over their back and using them as step stones stepping stones. 414 00:46:23,400 --> 00:46:30,120 Mr Abdul Wahid was a post occupation phase case. 415 00:46:30,120 --> 00:46:36,790 He was arrested in a house raised right by the soldiers who were looking for his brother in law. 416 00:46:36,790 --> 00:46:46,260 He his detention was reviewed by a detention detention review committee, which held that he didn't pose a threat and he should be released. 417 00:46:46,260 --> 00:46:54,510 But he was still detained for another month and then just over 30 days after after that. 418 00:46:54,510 --> 00:47:04,410 And he's the defendant's own medical records show that he then noted several injuries on his on his arrival at the detention facility. 419 00:47:04,410 --> 00:47:09,300 There was another there was supposed to be another serious brain injury case, 420 00:47:09,300 --> 00:47:16,350 in which case which occurred during the occupation phase, but it settled shortly before trial. 421 00:47:16,350 --> 00:47:20,730 So that's why there's no occupation case in the trial. 422 00:47:20,730 --> 00:47:33,360 And then KSU and Amavi, which were dealt with in the second round of trial in 2017, are both invasion cases as well. 423 00:47:33,360 --> 00:47:38,910 These there is a lot of challenges in bringing these these cases. 424 00:47:38,910 --> 00:47:46,440 We had, you know, these with from clients living in Iraq and speaking English, not speaking in English. 425 00:47:46,440 --> 00:47:53,220 We had it was sometimes difficult to take it to obtain instructions for claimants who are based in Iraq. 426 00:47:53,220 --> 00:48:00,330 Not least because because of the security situation in Iraq, we can go and meet them there. 427 00:48:00,330 --> 00:48:10,500 So we had a wonderful team of in-house Arabic speaking paralegals and solicitors taking instructions over the phone when we had to meet them. 428 00:48:10,500 --> 00:48:18,060 We met them in third country. So that involved a lot of also logistical difficulties. 429 00:48:18,060 --> 00:48:24,190 These client of these clients were very vulnerable and often traumatised. 430 00:48:24,190 --> 00:48:30,600 And so we had to be very sensitive in the way we interviewed them. 431 00:48:30,600 --> 00:48:40,170 And bringing the claimants and the witnesses in London was also difficult in that they were initially refused visas to come and give evidence. 432 00:48:40,170 --> 00:48:49,470 Mr Justice Leggett Reserve the judicial review proceedings they to give you the reason why they were refused a visa. 433 00:48:49,470 --> 00:48:56,190 And in the end, just before the beginning of the hearing, they were granted entry clearance to come in, 434 00:48:56,190 --> 00:49:00,780 bring can, bring evidence, give the incidents in the judgement. 435 00:49:00,780 --> 00:49:04,140 So we didn't. We made it in the end and we went through trial. 436 00:49:04,140 --> 00:49:11,790 And in December 2017, Mr Justice Leggett handed down his judgement in favour of all four claimants. 437 00:49:11,790 --> 00:49:18,540 And if they made some really strong findings regarding breaches of Article three, Article five, 438 00:49:18,540 --> 00:49:26,220 breaches of the Geneva Conventions and also breaches of Iraqi law, although a limitation applied. 439 00:49:26,220 --> 00:49:34,890 And so just go through it quickly through the key findings that he signed on floors and detention policies, 440 00:49:34,890 --> 00:49:40,410 which we've been through with the Nic Mercer about. 441 00:49:40,410 --> 00:49:49,440 He found that the emoji operated on the flawed system of detention review, which was based on a wrong understanding of the Geneva Conventions. 442 00:49:49,440 --> 00:49:55,080 He also found in the post occupation phase that the detention review process lacked 443 00:49:55,080 --> 00:50:01,140 the institutional guarantees of impartiality and opportunity for participation, 444 00:50:01,140 --> 00:50:12,750 which had been found by the Supreme Court as being essential for, in any case in any phases of the armed conflict. 445 00:50:12,750 --> 00:50:19,680 He also made some key findings of mistreatment of us, both a systemic and an individual nature. 446 00:50:19,680 --> 00:50:27,180 So with regard to the systemic treatment, Mr Al seven, 447 00:50:27,180 --> 00:50:35,340 KSU and Imari all claimed that there had been a hooded during the transportation to their camps, 448 00:50:35,340 --> 00:50:39,810 and who did was one of the five interrogation technique. 449 00:50:39,810 --> 00:50:47,610 It was already banned at the time, but it was very much used at the time. 450 00:50:47,610 --> 00:50:57,930 And Mr Justice Leggett found it had said that he had to make it clear in unequivocal terms that putting sandbags over the heads of prisoners 451 00:50:57,930 --> 00:51:07,050 is a form of degrading treatment in breach of both Article three of the European Convention and also Article 13 of the Geneva Conventions. 452 00:51:07,050 --> 00:51:15,750 So now the current doctrine prohibits holding in all circumstances and at the time of Mr Al Wahid's detention. 453 00:51:15,750 --> 00:51:20,610 So in 2007 it was prohibited. Who did, who was prohibited. 454 00:51:20,610 --> 00:51:29,670 Instead, detainees were made to wear blacked out goggles and ear defenders so that they could neither here nor see. 455 00:51:29,670 --> 00:51:36,420 And Mr Justice Leggett held that this practise was deliberately calculated as a 456 00:51:36,420 --> 00:51:42,750 means of dehumanising the detainee and giving the captors a cloak of invisibility, 457 00:51:42,750 --> 00:51:53,280 and therefore depriving Mr Al Wahid of vision and hearing for longer periods and for improper reasons was a form of degrading treatment. 458 00:51:53,280 --> 00:52:02,610 He also made some findings in relation of harsh hushing, which was alleged Mr Alloway. 459 00:52:02,610 --> 00:52:10,710 He'd alleged that he had been subjected to harsh tactical questioning, which was an approved interrogation technique at the time by the Hamoody, 460 00:52:10,710 --> 00:52:16,710 which involved shouting and deliberately insulting and abusing the detainee. 461 00:52:16,710 --> 00:52:21,810 It was abolished in 2012 and replaced with direct challenge, 462 00:52:21,810 --> 00:52:31,880 but the judge held that it confirmed that harsh their harsh approach when conducting tactical questioning amounting to. 463 00:52:31,880 --> 00:52:38,270 Degrading treatment. And finally, as an example, 464 00:52:38,270 --> 00:52:52,340 he also made some finding of individual breaches of Article three and in the case of also-ran and KSU and heat and not Casey Marie in our heat. 465 00:52:52,340 --> 00:53:00,800 But just in relation to Mr. Serrano, he, the judge, recognised that when assessing violations of Article three in the context of war, 466 00:53:00,800 --> 00:53:11,030 you really have to take account of the the the context, really, and the acute stress and constant danger that soldiers would find themselves in. 467 00:53:11,030 --> 00:53:15,440 But this doesn't mean that, you know, any violence is excusable. 468 00:53:15,440 --> 00:53:25,310 So assault involving gratuitous infliction of pain and humiliation, such as deliberately running over the backs of detainees is, 469 00:53:25,310 --> 00:53:35,780 you know, clearly crossed a level of severity for Article three and constitutes inhuman and degrading treatment. 470 00:53:35,780 --> 00:53:48,860 So in conclusion, I just wanted to kind of reiterate that Mr. Justice League, its judgement is very, very reasoned ruling, 471 00:53:48,860 --> 00:53:53,660 and it's a very welcome response to the endless accusations that allegations of 472 00:53:53,660 --> 00:54:01,010 mistreatment by British troops are motivated by dishonest Iraqis and self-serving lawyers. 473 00:54:01,010 --> 00:54:10,070 These findings are really important in the context of these claims and the very hostile environment in which they were litigated. 474 00:54:10,070 --> 00:54:20,210 The claimant's evidence was tested in court and was found by the judge to be credible and is very important. 475 00:54:20,210 --> 00:54:27,680 Also, I should also note that the judge found that the emoji was in breach not only of its obligations under the HRA, 476 00:54:27,680 --> 00:54:32,660 but also under the Geneva Conventions. And so what this case shows, 477 00:54:32,660 --> 00:54:37,520 really is that the emoji's own policies and procedures about the treatment of the 478 00:54:37,520 --> 00:54:45,620 detainees and prisoners of war violated the Geneva Conventions during the Iraqi conflict. 479 00:54:45,620 --> 00:54:54,890 So in the case of these Iraqi claims, the HRA has provided a course of action in English law and has enabled the victims of 480 00:54:54,890 --> 00:54:59,810 breach of these breaches of Geneva Convention to obtain redress in court and compensation. 481 00:54:59,810 --> 00:55:07,670 But it's also highlighted the institutional failures at the Ministry of Defence to prepare for the Iraq War and 482 00:55:07,670 --> 00:55:15,200 to ensure ensure that soldiers went to war with proper training that was compliant with the Geneva Conventions. 483 00:55:15,200 --> 00:55:22,280 That's why our cases are against the Ministry of Defence, not the individual soldiers. 484 00:55:22,280 --> 00:55:28,370 And finally, I should also note that the judge made breach of findings of breaches of Iraqi law. 485 00:55:28,370 --> 00:55:31,550 So in the case of assault and unlawful detention, 486 00:55:31,550 --> 00:55:42,050 he found that they were they gave rise to liability in tort in accordance with the Iraqi Civil Code in their clear in their cases. 487 00:55:42,050 --> 00:55:51,530 They were found to be out of time, but the judge made clear that he did not allow the claims under the HRA to proceed. 488 00:55:51,530 --> 00:55:58,970 He would have used his discretion and allowed the claims in court and Iraqi law as a matter of public policy. 489 00:55:58,970 --> 00:56:09,270 So even if the HRA is scrapped, we here are currently in. 490 00:56:09,270 --> 00:56:22,580 So because it's a very polarising instrument, civil case and civil cases and criminal cases would still allow it to to go ahead without the HIV. 491 00:56:22,580 --> 00:56:32,240 And these types of cases, which quite often would represent so could be claim, could be brought into tort law. 492 00:56:32,240 --> 00:56:36,350 And so it wouldn't bring them to total a halt. 493 00:56:36,350 --> 00:56:56,560 That's it's over massively simplified to these issues, and I hope that for you gave you a brief understanding of the civilian litigation. 494 00:56:56,560 --> 00:57:09,520 I. Sorry, I don't know to put this. 495 00:57:09,520 --> 00:57:29,180 They just. Well, thank you very, very much for that overview of. 496 00:57:29,180 --> 00:57:37,370 And also for an insight into the for those of you who are here from the BCCL and other students for an insight 497 00:57:37,370 --> 00:57:48,530 into the the very real political climate that leaders have been working under in pursuing these claims, 498 00:57:48,530 --> 00:57:51,560 I think that's a very important part of this story. 499 00:57:51,560 --> 00:57:58,610 And of course, this particular question has broader implications for the politics of human rights in this country, 500 00:57:58,610 --> 00:58:04,040 and I think it's worth exploring some of these questions in in discussion. 501 00:58:04,040 --> 00:58:12,590 I'm going to call upon Dapo to give us some reflections after seeing two perspectives from two 502 00:58:12,590 --> 00:58:19,430 sides of the practise based conflicts around the imposition of human rights and battlefield. 503 00:58:19,430 --> 00:58:33,730 We can now call upon the academic perspective to try and reconcile these questions that are on the higher level of Let me give you a brief stop. 504 00:58:33,730 --> 00:58:38,860 So the traditional thing when one is speaking at a conference is to start by 505 00:58:38,860 --> 00:58:46,390 thanking the organisers for inviting the speaker to take part in the conference. 506 00:58:46,390 --> 00:58:55,690 I'm not sure whether in this case I can start by actually thanking Laura for, you know, coming to me 15 minutes before to say somebody dropped out. 507 00:58:55,690 --> 00:59:02,920 Can you? Can you fill in it? You know, one should always try to learn lessons from whatever happens in life. 508 00:59:02,920 --> 00:59:07,600 And the lesson that I have learnt is don't come too early to a conference. 509 00:59:07,600 --> 00:59:16,750 I'm certainly not one organised by Laura because or at least in which Laura is chairing, because you may be asked at the last minute to to fill in. 510 00:59:16,750 --> 00:59:25,090 It's been fascinating, actually hearing the two perspectives that have been given by people who've been involved in any sort of coalface of it. 511 00:59:25,090 --> 00:59:30,970 First of all, in the actual operations themselves and then in the in the litigation, as Laura says, 512 00:59:30,970 --> 00:59:36,640 what I'll try to do is to provide a sort of academic perspective in relation to these issues. 513 00:59:36,640 --> 00:59:43,390 And I want to try to answer the question of where are we now? 514 00:59:43,390 --> 00:59:52,090 Or at least give some thought in relation to the question Where are we now in relation to this question of the application of human rights law 515 00:59:52,090 --> 01:00:02,410 in armed conflict and in particular in relation to two specific questions relating to the application of human rights law in armed conflict? 516 01:00:02,410 --> 01:00:12,640 So this litigation that you've been hearing about has thrown up two questions in relation to the application of human rights law. 517 01:00:12,640 --> 01:00:20,320 Question number one, a question which pre-dated the the Iraq War but has been intensified by this litigation 518 01:00:20,320 --> 01:00:24,490 is the question of the extraterritorial application of of human rights law. 519 01:00:24,490 --> 01:00:29,560 So to what extent does the convention and the Human Rights Act in this country? 520 01:00:29,560 --> 01:00:34,030 To what extent do those legal instruments apply extra territorially? 521 01:00:34,030 --> 01:00:38,800 So that's question number one. And where are we now on that following this litigation? 522 01:00:38,800 --> 01:00:42,790 Question number two is the question of. 523 01:00:42,790 --> 01:00:50,710 To what is the relationship between human rights law and the law of armed conflict or international humanitarian law, 524 01:00:50,710 --> 01:00:54,040 how exactly do we conceptualise this relationship? 525 01:00:54,040 --> 01:01:02,320 Because in the descriptions that you've heard, and if you think about the summary of the findings from Mr. Justice Leggett at the end, 526 01:01:02,320 --> 01:01:10,060 he talks about breaches of the European Convention on Human Rights, and he talked about serious breaches of the Geneva Conventions. 527 01:01:10,060 --> 01:01:15,940 So what's the relationship between these two bodies of law and where are we now in 528 01:01:15,940 --> 01:01:21,910 terms of what answers have been provided by these cases that we've been talking about? 529 01:01:21,910 --> 01:01:26,820 So first question extraterritorial application of the Human Rights Act and the convention? 530 01:01:26,820 --> 01:01:31,090 And Reverend Mercer talked about how from the very beginning, he raised this issue. 531 01:01:31,090 --> 01:01:41,350 And the answer that he was given at that time was sort of, don't worry about it, human rights law has nothing to to to say, really. 532 01:01:41,350 --> 01:01:45,670 And in part, that was because of the Bank of its judgement of the European Court of Justice of the 533 01:01:45,670 --> 01:01:51,490 Grand Chamber and the decision that the European Court of Human Rights had reached. 534 01:01:51,490 --> 01:02:02,800 Then just to remind you, the essential question that arises here is to what extent are persons who are outside the territory of, in this case, the UK? 535 01:02:02,800 --> 01:02:10,000 To what extent are these persons within the jurisdiction of the U.K. for the purposes of the application of the convention? 536 01:02:10,000 --> 01:02:21,160 That's the question, right? So are these persons within the jurisdiction of the U.K. on our conception of jurisdiction has evolved over the years, 537 01:02:21,160 --> 01:02:30,550 and the first point which had been already acknowledged before even this round of cases is that in cases 538 01:02:30,550 --> 01:02:39,220 where a state exercises overall control of a territory not its own but outside of its own territory, 539 01:02:39,220 --> 01:02:45,340 then persons within that territory would be within the jurisdiction of of that country. 540 01:02:45,340 --> 01:02:50,530 So in this case, the UK and that has been well, well accepted. 541 01:02:50,530 --> 01:02:58,450 The difficult question was whether there was another conception of jurisdiction, one which was not a sort of spatial conception of jurisdiction, 542 01:02:58,450 --> 01:03:08,290 but one which can be regarded as a personal conception of jurisdiction if you exercise authority or control over an individual. 543 01:03:08,290 --> 01:03:16,930 Does that automatically mean that that individual is within your jurisdiction for the purposes of the application of the convention? 544 01:03:16,930 --> 01:03:21,660 And that's the question that these cases have thrown up. 545 01:03:21,660 --> 01:03:28,740 First thing that I suppose the first sort of clear lesson that these cases have thrown up is the one 546 01:03:28,740 --> 01:03:34,020 that comes from our scare me and the one that comes particularly from the Baha Moussa incident, 547 01:03:34,020 --> 01:03:37,890 which is that whenever a person is detained by a state, 548 01:03:37,890 --> 01:03:46,800 then that person is within the jurisdiction of that state and therefore the Convention and Human Rights Act will apply to that person. 549 01:03:46,800 --> 01:03:55,590 The question that has been difficult to answer is why is that so why is a person who is detained within the jurisdiction of the state? 550 01:03:55,590 --> 01:04:07,480 Is that because, as the UK asserted in our me, because the person is in a small space, a small area over which the state exercises control? 551 01:04:07,480 --> 01:04:15,780 So if you think about Baha Mousa held in a small location, we essentially saying that yes, you don't have overall control of the whole territory, 552 01:04:15,780 --> 01:04:22,830 but you have overall control of that small space and therefore this person is within your jurisdiction. 553 01:04:22,830 --> 01:04:28,660 Or is it because you have control over that individual? 554 01:04:28,660 --> 01:04:38,080 Now, if it's because you have control over that individual, then why would the convention not apply if, for example, 555 01:04:38,080 --> 01:04:45,490 you were to stop a person at a checkpoint and you were to commit certain acts in relation to the checkpoint? 556 01:04:45,490 --> 01:04:52,990 What about if you didn't stop the person at the checkpoint, but rather what you did was you frogmarched them for three miles, 557 01:04:52,990 --> 01:05:02,380 walking and abusing them as you went along, but never actually exercising control over any little bit of territory at any point in time? 558 01:05:02,380 --> 01:05:11,890 So that's the question. Why is it now one of the interesting things that I think in a sense, this might be where we are in relation to our skin? 559 01:05:11,890 --> 01:05:16,240 Is that our skinny in the European Court of Human Rights, 560 01:05:16,240 --> 01:05:27,400 the Grand Chamber of the European Court of Human Rights for almost all of its judgement seems to equate control of the person with jurisdiction. 561 01:05:27,400 --> 01:05:33,310 So if you control, if you exercise authority or control over the person, you have jurisdiction. 562 01:05:33,310 --> 01:05:38,920 In fact, in one place, they talk about control and thus jurisdiction. 563 01:05:38,920 --> 01:05:41,230 And in fact, they specifically say, 564 01:05:41,230 --> 01:05:49,570 If you look at our cases whereby we have held that a person that is detained is within the jurisdiction of the state. 565 01:05:49,570 --> 01:05:59,350 The reason for jurisdiction is not because of the control of the ship, the plane, the room in which they are held. 566 01:05:59,350 --> 01:06:03,550 So that's not the reason. It's not because you have control over that small territory. 567 01:06:03,550 --> 01:06:13,900 And that seems to suggest that jurisdiction is about personal or the exercise of personal authority or control. 568 01:06:13,900 --> 01:06:21,220 And that seems to suggest that if you have enough control over the person to be able to violate their rights, 569 01:06:21,220 --> 01:06:26,080 then you have enough control to say that the person is within your jurisdiction. 570 01:06:26,080 --> 01:06:32,750 That is the thrust of most of the judgement in the skinny case, except for the last couple of paragraphs. 571 01:06:32,750 --> 01:06:36,830 You then get to the last couple of paragraphs, I think Melanie put this up. 572 01:06:36,830 --> 01:06:40,760 The grand chamber says, well, 573 01:06:40,760 --> 01:06:53,060 the UK was exercising public policy in Iraq and it is for that reason that all these people were within the jurisdiction of the UK. 574 01:06:53,060 --> 01:06:57,530 Question, what does that mean, exercising public powers? 575 01:06:57,530 --> 01:07:08,960 What we know it does not mean is that it does not mean that they had overall control over the territory because the court had already rejected that. 576 01:07:08,960 --> 01:07:15,680 So we know that it's a lower test than exercising overall control over the territory. 577 01:07:15,680 --> 01:07:25,640 What we also know is that the UK was in occupation of Iraq as a matter of the law of of of of armed conflict, international humanitarian law, 578 01:07:25,640 --> 01:07:32,660 but that the court considered that not in itself be equal to exercising overall control something that's curious. 579 01:07:32,660 --> 01:07:39,630 So where we left with, I think we're left. In the European Court of Human Rights, almost essentially on the knife edge, 580 01:07:39,630 --> 01:07:48,760 where the logic of the decision, the logic of the decision in our skinny seems to suggest that. 581 01:07:48,760 --> 01:07:52,840 Jurisdiction equals personal control or authority. 582 01:07:52,840 --> 01:07:59,950 But the actual decision doesn't say this now transferring this back to cases in the UK. 583 01:07:59,950 --> 01:08:08,740 This issue of where are we now with jurisdiction was explored in our city and I don't know if you mentioned Elsa Dean, but it now, said Dean. 584 01:08:08,740 --> 01:08:16,990 Enter stage left Mr Justice Leggett again says If I read Alleghany the principles in our skating, 585 01:08:16,990 --> 01:08:24,070 he suggests to me that if you have enough control over the person's affairs to violate their rights, 586 01:08:24,070 --> 01:08:28,910 then that will give you enough control to say that they are within your jurisdiction. 587 01:08:28,910 --> 01:08:33,850 That was the decision of the High Court and of Mr Justice Leggett to do so. 588 01:08:33,850 --> 01:08:40,290 You have this. If you like jurisdiction equals authority or control, full stop. 589 01:08:40,290 --> 01:08:49,000 The Court of Appeal, in also doing said, well, that sounds logical, and if you read the judgement, it could well be that those are the principles. 590 01:08:49,000 --> 01:08:55,400 But the European Court of Human Rights has not gone that far yet. 591 01:08:55,400 --> 01:08:59,780 And therefore, we're not going to go that far yet. 592 01:08:59,780 --> 01:09:05,450 So we stick to what the court said in terms of the UK was exercising public powers. 593 01:09:05,450 --> 01:09:14,120 So we're still in that first question. We're still essentially at a place where the jurisprudence can go either way. 594 01:09:14,120 --> 01:09:20,630 It can go either way. You can follow the logic of the decision in our scanning all the way through to the end. 595 01:09:20,630 --> 01:09:27,200 And you say jurisdiction equals authority and control and therefore what that would mean if you take a right to life case. 596 01:09:27,200 --> 01:09:32,750 The fact that you kill the person means that they are under your control because you 597 01:09:32,750 --> 01:09:38,090 have enough control to take their life and therefore the right to life is engaged. 598 01:09:38,090 --> 01:09:48,980 That would be the logic of that. But. Neither the European Court of Human Rights nor the courts in this country have gone that far, 599 01:09:48,980 --> 01:09:53,360 but that case will, I don't know if it's one of the cases to come. 600 01:09:53,360 --> 01:09:58,280 But that case will come and that case will be tested. 601 01:09:58,280 --> 01:10:05,900 And my view is that actually Mr Justice Leggett will ultimately be proven to be correct on that question. 602 01:10:05,900 --> 01:10:10,670 Probably not in the courts in this country, I suspect. But I think in Strasbourg, 603 01:10:10,670 --> 01:10:17,300 it will be very difficult for the Strasbourg court to ignore the logic of the entire decision in Strasbourg 604 01:10:17,300 --> 01:10:23,210 and also because any other basis really would be an arbitrary it would be arbitrary line drawn. 605 01:10:23,210 --> 01:10:26,690 So that's that first question. The second question, I probably don't have enough time, 606 01:10:26,690 --> 01:10:36,110 but the second question the relationship between human rights law and an H.L international humanitarian law, where are we now? 607 01:10:36,110 --> 01:10:44,510 So one of the questions that has arisen there is to what extent should we say that international 608 01:10:44,510 --> 01:10:52,670 humanitarian law is the spécialisée and therefore it essentially prevails over human rights law? 609 01:10:52,670 --> 01:11:03,440 That's one of the questions that has been raised, and that line of reasoning arguably find some support. 610 01:11:03,440 --> 01:11:09,920 In a statement that the International Court of Justice made in the nuclear weapons advisory opinion, 611 01:11:09,920 --> 01:11:14,060 where they referred to international humanitarian law as leg specialists. 612 01:11:14,060 --> 01:11:19,670 And so this terminology gets bandied around a lot and in a lot of this litigation that 613 01:11:19,670 --> 01:11:23,360 we've been talking about the first line of defence of the government in the early days, 614 01:11:23,360 --> 01:11:30,380 as I understood it was essentially the same thing that was said to the Reverend Mussa. 615 01:11:30,380 --> 01:11:34,880 You know, the idea that human rights law has nothing to do with with armed conflict, 616 01:11:34,880 --> 01:11:39,050 it's all about the law of it's all about the law of armed conflict. 617 01:11:39,050 --> 01:11:41,480 It's all about HL. 618 01:11:41,480 --> 01:11:51,420 But it all depends on what Lex Spécialisé means, and I would suggest that there are at least three different ways of conceptualising specialists. 619 01:11:51,420 --> 01:11:57,280 OK, so one way of looking at it is to say. If. 620 01:11:57,280 --> 01:12:04,900 HL is the Lex specialist, is it totally displaces human rights law, so human rights law has no role at all. 621 01:12:04,900 --> 01:12:09,520 It is just HL, so this is the idea of total displacement. 622 01:12:09,520 --> 01:12:17,080 Well, that has been rejected by every single court, in every single case where this argument has been made, 623 01:12:17,080 --> 01:12:25,150 whether in the UK or internationally, the idea that a child displaces totally human rights law has been rejected. 624 01:12:25,150 --> 01:12:34,270 So then you have a second conception, which is one of partial displacement, which is to say, well, of course, human rights law continues to apply. 625 01:12:34,270 --> 01:12:41,020 But if it comes into conflict with the law of armed conflict, the law of armed conflict will prevail. 626 01:12:41,020 --> 01:12:46,630 So in that sense, like specialist is doing the work of being an arbiter of of conflict. 627 01:12:46,630 --> 01:12:54,310 That's what he's trying to do. Of course, it applies human rights law, but if it conflicts with h.O.H or prevails, that second conception, 628 01:12:54,310 --> 01:13:00,130 the third conception is one that you can call the principle of coordinated interpretation. 629 01:13:00,130 --> 01:13:09,340 I really dislike it when people invent new phrases for talking about things, except that if I happen to think of a good phrase which is new, 630 01:13:09,340 --> 01:13:15,100 and even though it's describing something that other people have talked about, I think that's a good thing. 631 01:13:15,100 --> 01:13:19,870 So it's like people talking about the principle of complementarity, 632 01:13:19,870 --> 01:13:24,490 but this is better principle of coordinated interpretation because it's more legally sound. 633 01:13:24,490 --> 01:13:35,470 So what does this say? What this says is that there are cases where you can use one body of law to interpret another body of law. 634 01:13:35,470 --> 01:13:40,060 Right. So you use one body of law to interpret another body of law and its coordinated interpretation 635 01:13:40,060 --> 01:13:45,850 because you achieve the same result in the sense that the two obligations are the same. 636 01:13:45,850 --> 01:13:52,000 So they are coordinated the same, but you using one body to interpret the other. 637 01:13:52,000 --> 01:13:58,860 And it's this third conception of like specialists that has essentially been adopted. 638 01:13:58,860 --> 01:14:08,760 First, by the ICJ, the International Court of Justice, then by the European Court of Human Rights in the Hassan case and now by the UK courts, 639 01:14:08,760 --> 01:14:12,540 said that Mohammed and in this litigation that we've been talking about. 640 01:14:12,540 --> 01:14:14,490 So what does this principle say? 641 01:14:14,490 --> 01:14:21,480 It says that there are cases where we can interpret human rights law, having determined that human rights law applies. 642 01:14:21,480 --> 01:14:27,500 There are cases where we can use H.L to interpret human rights law. 643 01:14:27,500 --> 01:14:35,150 And actually, arguably there are cases where we can use human rights law as well to interpret HL, so it could be a feedback loop. 644 01:14:35,150 --> 01:14:41,900 OK. So in this specific context, what do we mean in the context of detention? 645 01:14:41,900 --> 01:14:50,300 What the court, the European Court of Human Rights said in Hassan was that even though the European Convention on Human Rights does not on its face, 646 01:14:50,300 --> 01:14:57,260 Article five allow for detention on grounds of imperative reasons of security. 647 01:14:57,260 --> 01:15:09,950 Because IATO allows for it in a circumstance of armed conflict, we can interpret Article five as also allowing for it, even though the convention now. 648 01:15:09,950 --> 01:15:16,460 I think in principle, the I think the principle of coordinating interpretation is correct. 649 01:15:16,460 --> 01:15:21,350 But my view, actually is that the European Court of Human Rights went too far in Hazan, 650 01:15:21,350 --> 01:15:30,160 and this is actually where the coordinated interpretation versus complementarity view makes a difference because. 651 01:15:30,160 --> 01:15:33,550 It's a principle of interpretation, and the question is, 652 01:15:33,550 --> 01:15:43,530 how far does interpretation go when you have a treaty that says there are only certain specified grounds for detention? 653 01:15:43,530 --> 01:15:49,320 Can you read in another ground which is not specified? 654 01:15:49,320 --> 01:15:52,470 And does that remain interpretation? 655 01:15:52,470 --> 01:16:02,510 That's the difficulty here, but that's what the court has said, that we can use H0 to read in another ground, which is not there. 656 01:16:02,510 --> 01:16:08,670 Note this only applies in the context of an international armed conflict. 657 01:16:08,670 --> 01:16:18,030 So this is significant significant because in the context of this litigation, as you talk about the different cases. 658 01:16:18,030 --> 01:16:25,020 Some of it will be an international armed conflict, but at some point it will become a non-international armed conflict, 659 01:16:25,020 --> 01:16:36,900 and therefore at some point questions will arise as to whether HL action even HL does, even on its own, authorise this detention. 660 01:16:36,900 --> 01:16:41,100 So that's and that was explored in the southern Mohammad case. 661 01:16:41,100 --> 01:16:48,630 So that's the first point where we are. We can use HL to interpret human rights law and in the context of detention, 662 01:16:48,630 --> 01:16:54,420 we can read in two Article five grounds for detention that exist under HL. 663 01:16:54,420 --> 01:16:58,440 So that's. And then the second issue is the issue of procedures. 664 01:16:58,440 --> 01:17:01,650 Can we use HL to interpret the procedures? 665 01:17:01,650 --> 01:17:08,160 And this is where the point to sort of link the two presentations, the points, the points, which I thought were very compelling. 666 01:17:08,160 --> 01:17:16,500 I have to say that Reverend Mercer was making about the difficulties of engaging in procedural review in the context of an armed conflict. 667 01:17:16,500 --> 01:17:25,020 This is where it becomes relevant. Because, yes, a child does provide for certain grounds of review, 668 01:17:25,020 --> 01:17:30,600 but the standards that a child provides for and the mechanisms that it provides for are much more 669 01:17:30,600 --> 01:17:38,390 relaxed than what the the European Convention on Human Rights Law would ordinarily require. 670 01:17:38,390 --> 01:17:42,170 So the effect of Hassan, the effect of Saddam Mohammed, 671 01:17:42,170 --> 01:17:49,130 is that actually the right standard to use in the context again of an international armed conflict, 672 01:17:49,130 --> 01:18:01,510 I stress, is you read in two Article five five for the standards of the Geneva Conventions, the standards of international humanitarian law. 673 01:18:01,510 --> 01:18:04,240 But this is where the kind of feedback loop comes up, 674 01:18:04,240 --> 01:18:11,680 because it may well be that in thinking about what international humanitarian law itself provides for, 675 01:18:11,680 --> 01:18:19,780 even that might need to be infused with some notions of what human rights law provides for, 676 01:18:19,780 --> 01:18:28,750 at least in terms of basic notions of independence of the body, impartiality opportunity to make representations, that sort of thing. 677 01:18:28,750 --> 01:18:33,230 So you may end up going in in a sort of circular movement. 678 01:18:33,230 --> 01:18:43,450 So that's sort of where we are now. I note the criticisms that were made of Mr Justice Léger in terms of his findings on the facts. 679 01:18:43,450 --> 01:18:48,610 And I don't, you know, I'm not expecting to see whether I agree or I don't disagree. 680 01:18:48,610 --> 01:18:54,100 But the important point is that actually he tries to reach it by reference to whether or not 681 01:18:54,100 --> 01:18:59,350 these are breaches of the Geneva Conventions through this mechanism that I've been talking about. 682 01:18:59,350 --> 01:19:09,050 And I think that's the right way to go. So what's left in this area of the relationship between a child and human rights law? 683 01:19:09,050 --> 01:19:14,780 The big question or. Well, I think the big question that's left in the in the particular context of 684 01:19:14,780 --> 01:19:20,900 detention is the question of what happens in a non-international armed conflict. 685 01:19:20,900 --> 01:19:29,310 All well and good to say yes. You can make reference to how to interpret human rights law. 686 01:19:29,310 --> 01:19:35,280 HL has quite a bit to say about detention in an international armed conflict. 687 01:19:35,280 --> 01:19:40,410 We have all of the Third Geneva Conventions, all of the Fourth Geneva Conventions. 688 01:19:40,410 --> 01:19:48,090 What if it's a non-international armed conflict? Afghanistan for most of the time, Iraq for much of the time? 689 01:19:48,090 --> 01:19:57,140 What do we do there? Because they're arguably HL has very little to say. 690 01:19:57,140 --> 01:20:03,740 Either on the question, in my view of whether the detention is even authorised at all. 691 01:20:03,740 --> 01:20:10,580 That was the big issue litigation. One of the cases does H0 provide an authority to detain? 692 01:20:10,580 --> 01:20:14,720 And I think the supreme, well, the Supreme Court didn't really give an answer, 693 01:20:14,720 --> 01:20:19,700 but the majority lean towards the view that I think correctly that it does not. 694 01:20:19,700 --> 01:20:29,600 That does not give an authority to determine. So if you say yes, we can use HL, but you turn to HL and HL has nothing. 695 01:20:29,600 --> 01:20:37,010 And the same is true of the questions of procedural guarantees review, you turned to H.R., would you say yes? 696 01:20:37,010 --> 01:20:43,130 We can interpret the convention in the light of HL, but it has nothing to say. 697 01:20:43,130 --> 01:20:51,020 Does that then mean that we are, shall we say, stuck with what the European Convention provides for? 698 01:20:51,020 --> 01:20:55,070 And I say stuck because of the points that were made earlier that? 699 01:20:55,070 --> 01:21:02,240 How do you apply those standards in the type of context that has just been described? 700 01:21:02,240 --> 01:21:09,560 How could you possibly apply those standards there or if I child provides no authority to detain at all? 701 01:21:09,560 --> 01:21:15,620 Does it mean every detention is ipso facto going to be a breach of the convention? 702 01:21:15,620 --> 01:21:25,390 Those are questions that are still. Unresolved, I think, in this question of the relationship between human rights and H.L. 703 01:21:25,390 --> 01:21:38,580 Yeah, yeah. So you've just proven me right up so that I can call upon you in 15 minutes before the event. 704 01:21:38,580 --> 01:21:39,820 Now we've run a bit over time. 705 01:21:39,820 --> 01:21:50,640 We did start at 16 minutes past 11 and we could suspend questions altogether or comments or discussion, or we could go on to court two. 706 01:21:50,640 --> 01:21:56,490 I think that's probably. Is that right? Or should we suspend? 707 01:21:56,490 --> 01:22:04,810 At least in theory. No. Yes. Yes, a brief comments, no questions, please. 708 01:22:04,810 --> 01:22:12,520 And if you could keep them as succinct as possible, I'm going to choose to. 709 01:22:12,520 --> 01:22:16,440 One. Two. 710 01:22:16,440 --> 01:22:24,180 All right. All right, so there's there's a microphone coming down. 711 01:22:24,180 --> 01:22:35,100 I'm going to ask you just to wait for the microphone so we can. Thank you. 712 01:22:35,100 --> 01:22:41,910 Firstly, just a question for Dafoe, which is probably a bit unfair given that you've just done this impromptu presentation, 713 01:22:41,910 --> 01:22:48,750 but I'd be really interested to get your view on the principle of coordinated interpretation 714 01:22:48,750 --> 01:22:56,190 then applied by the Supreme Court instead of Mohammad and Al Wahid in respect of UNSCR, 715 01:22:56,190 --> 01:23:06,630 and potentially then filling the gap where it doesn't allow during a NYAG, give the authority for detention. 716 01:23:06,630 --> 01:23:13,000 And your view as to. Yeah, just on the way they dealt with that in terms of UNHCR, 717 01:23:13,000 --> 01:23:25,100 which appeared to be much more political instrument than a than a very established body of law and then a quick question for Nicholas Mercer as well. 718 01:23:25,100 --> 01:23:28,840 And again, having been a lawyer who's been representing the claimants, it's been. 719 01:23:28,840 --> 01:23:39,190 It was very interesting to get your perspective on Mr Justice, like its findings on Article five and and have that and have that context. 720 01:23:39,190 --> 01:23:44,200 And it sounds that if you think that he didn't apply the military context to his 721 01:23:44,200 --> 01:23:50,920 findings on Article five in the way that he did when looking at Article three, 722 01:23:50,920 --> 01:23:56,560 and I just wondered if you have any observations on why the Ministry of Defence 723 01:23:56,560 --> 01:24:00,550 might have chosen not to apply for permission to appeal those findings. 724 01:24:00,550 --> 01:24:08,020 And you know, that may have just been a litigation strategy as opposed to a military strategy. 725 01:24:08,020 --> 01:24:12,850 And again, as you've moved on from your previous role, 726 01:24:12,850 --> 01:24:19,060 whether you're aware whether it has actually changed its military doctrine as a result of that judgement or is doing what you say, 727 01:24:19,060 --> 01:24:25,810 and he thinks he also got it wrong and is just going to plough on with with the previous approach. 728 01:24:25,810 --> 01:24:29,560 Can we have the second question now and then we'll have the answers so we can. 729 01:24:29,560 --> 01:24:46,890 This is over here. I confess to being an anthropologist, not a lawyer or in law and what it seems. 730 01:24:46,890 --> 01:24:51,060 Also, I do research on gender, so I'm sorry. 731 01:24:51,060 --> 01:24:54,000 Reverend Mercer, but I'm going to ask and of course, 732 01:24:54,000 --> 01:25:06,930 it concerns all the panel and all of us is if the Ministry of Defence and the British military deploy women at the front line from now on, 733 01:25:06,930 --> 01:25:14,940 or have they in the past? Then would the duty of care or the duty of care to the military? 734 01:25:14,940 --> 01:25:20,220 The duty of care to the prisoner would have been different. 735 01:25:20,220 --> 01:25:32,970 Could it possibly be different in terms of what gender brings and what women bring to the battlefield in light of Christine Lagarde? 736 01:25:32,970 --> 01:25:41,410 She will know and she an economist, I think, and she said when she became head of whatever. 737 01:25:41,410 --> 01:25:50,610 Well, what was it, IMF if women had been CEOs at the time of the banking crisis? 738 01:25:50,610 --> 01:25:57,000 Would would the more women in post would we had of less of a disaster? 739 01:25:57,000 --> 01:26:02,680 And I'm not saying that what you presented is a disaster, but the whole idea of duty. 740 01:26:02,680 --> 01:26:08,730 Duty of care, of course, is two way Three-Way Four-Way whatever. 741 01:26:08,730 --> 01:26:17,860 Thank you. So we'll have to. Um. Next, Mercer, would you like to respond first and then I'll respond. 742 01:26:17,860 --> 01:26:25,330 Sorry. I think it's a question of why the energy is not talking about it. 743 01:26:25,330 --> 01:26:31,470 No, I suspect they didn't want prisoner abuse particularly visited in any court proceeding. 744 01:26:31,470 --> 01:26:35,640 I mean, I find it by the lack of press coverage, 745 01:26:35,640 --> 01:26:42,600 given that the Daily Mail is sitting in the back of the High Court hovering on every word given that I've been carved out, 746 01:26:42,600 --> 01:26:49,260 particularly that there were no reporting restrictions and what I have to say, I find that very odd. 747 01:26:49,260 --> 01:26:53,800 And I think the fact that Justice David found that on the balance of probabilities that abuse did take place, 748 01:26:53,800 --> 01:27:02,520 that's the narrative that it wanted to hear. And this applied not only to the warfighting faith, but also to overheat in 2007. 749 01:27:02,520 --> 01:27:10,890 Don't tell me it didn't happen in the middle. So I think it would give credence to the claims made submissions to the ICC. 750 01:27:10,890 --> 01:27:14,350 And also, that's something the press. A lot. 751 01:27:14,350 --> 01:27:20,640 Well, I want to report because it doesn't fit the public narrative, we all know what civilised markets can do politically. 752 01:27:20,640 --> 01:27:23,100 And I think they didn't want to go there because of that. 753 01:27:23,100 --> 01:27:27,840 I think that's sad because I do think there's some compelling, compelling arguments on the article, 754 01:27:27,840 --> 01:27:33,540 five points on detention and review, and I think that raises difficulties. 755 01:27:33,540 --> 01:27:37,260 I'm delighted, however, with the Article three findings. 756 01:27:37,260 --> 01:27:44,580 I think, like all these things were very strange contraption that can be thrown out for all the wrong reasons and give a distorted view. 757 01:27:44,580 --> 01:27:50,130 So that that's my hunch that if women around the world. 758 01:27:50,130 --> 01:27:55,350 My wife would believe so what can I say? I think it's very difficult. 759 01:27:55,350 --> 01:28:00,870 I mean, my view is, well, I'm I'm a bit old fashioned. 760 01:28:00,870 --> 01:28:08,700 I feel hand-to-hand fighting. I must confess that infuriates my very radical daughter over dinner. 761 01:28:08,700 --> 01:28:16,620 So I don't believe that women can fight it. But if you're applying it very strictly, then you captured. 762 01:28:16,620 --> 01:28:24,600 It's a competitive advantage. I think once reduced to capture, then that's still Department of Equality Rights. 763 01:28:24,600 --> 01:28:29,890 But there are difficulties in terms of personal dignity and other things that might fit with that. 764 01:28:29,890 --> 01:28:36,080 For instance, we were very careful about stopping and searching and having a female policeman present. 765 01:28:36,080 --> 01:28:45,050 To military policemen in full stop and search of women and all of the lack of dignity that that might expose to other possible claims. 766 01:28:45,050 --> 01:28:54,620 So we treat that as sensitively as we could to give you some idea what it's like running a prisoner of war camp, 3000 people going to the loo. 767 01:28:54,620 --> 01:29:03,830 Yeah. I mean, we even had the dug under the curtain of the Basra airfield, so we would have to walk out in the middle of the night to 12 loose. 768 01:29:03,830 --> 01:29:14,510 That was pretty civilised. So I can see real difficulties there that they're going to have to factor into prisoner of war doctrine going forward. 769 01:29:14,510 --> 01:29:18,740 Lack of trust less testosterone in the military headquarters now. 770 01:29:18,740 --> 01:29:22,280 So there's an awful lot of testosterone. 771 01:29:22,280 --> 01:29:28,520 There's an awful lot of testosterone in a war of you've seeing Paris men of war, but excellent series on the television. 772 01:29:28,520 --> 01:29:33,570 You know, these people trained to fight and to kill. 773 01:29:33,570 --> 01:29:37,640 And you know, we need them to do the last hundred metres of foreign policy. 774 01:29:37,640 --> 01:29:43,430 So I still have great support for the military and all that. It's almost to do so. 775 01:29:43,430 --> 01:29:48,660 Yeah, I'll leave it there. Do you want to just quickly respond? 776 01:29:48,660 --> 01:29:53,760 We're probably pushing time before you start with the women running running. 777 01:29:53,760 --> 01:29:56,450 I just a factual observation, actually. 778 01:29:56,450 --> 01:30:08,120 So if it was Martha had been serving in the armed forces two years ago or three years ago in the same role that you had 16 years ago, 779 01:30:08,120 --> 01:30:12,350 his two most senior officers would have been women to the top two. 780 01:30:12,350 --> 01:30:17,180 Women in the British Army were actually lawyers, said the most senior. 781 01:30:17,180 --> 01:30:21,770 I think she's still the most senior woman who really is the director of Army Legal Services. 782 01:30:21,770 --> 01:30:26,420 And at the time, three years ago, the next most senior was actually the director of operational. 783 01:30:26,420 --> 01:30:30,870 The head of operational law was also a woman at the time was retired. 784 01:30:30,870 --> 01:30:36,630 I think so. Just on that one that that's happening to some degree, at least in this corner of the world, 785 01:30:36,630 --> 01:30:44,630 the kind of legal question about coordinated interpretation and using UN Security 786 01:30:44,630 --> 01:30:52,130 Council resolutions as a way of providing authority to detain under human rights law. 787 01:30:52,130 --> 01:30:59,630 So my view is that that is my view is that there's no problem with with doing that. 788 01:30:59,630 --> 01:31:04,970 And actually, this is again where the language of interpretation essentially comes in. 789 01:31:04,970 --> 01:31:07,960 So let's think about what it is that we're talking about. 790 01:31:07,960 --> 01:31:18,050 Article five of the convention essentially requires that you must have a legal basis for detention, and that's what it requires. 791 01:31:18,050 --> 01:31:24,710 And what both the European Court of Human Rights have said and also the courts in this country said, 792 01:31:24,710 --> 01:31:28,460 is that that legal basis need not come from domestic law. 793 01:31:28,460 --> 01:31:32,570 That legal basis can come from international law. 794 01:31:32,570 --> 01:31:38,150 And so if the legal basis can be provided for by the Geneva Conventions, 795 01:31:38,150 --> 01:31:48,080 then this seems to me to be no reason why it cannot come from another international law instrument, the UN a UN Security Council resolution. 796 01:31:48,080 --> 01:31:56,090 Ultimately, of course, the UN Security Council resolutions legal basis finds its basis in the UN charter. 797 01:31:56,090 --> 01:32:01,070 So if the Geneva Conventions can provide it, there's no reason why the UN Charter can't provide. 798 01:32:01,070 --> 01:32:10,190 And I see it, you know, one I suppose one difficulty that one might say is how would if one of the reasons to have a 799 01:32:10,190 --> 01:32:16,100 legal basis for detention is that so that people know that there is a legal basis to be detained? 800 01:32:16,100 --> 01:32:20,510 How would they know? But you would get that problem, actually. 801 01:32:20,510 --> 01:32:26,410 Whether you find it in the Geneva Convention, the Security Council is. 802 01:32:26,410 --> 01:32:33,850 I'm going to bring this to a close and thank the speakers very, very much for a really very fascinating family. 803 01:32:33,850 --> 01:32:37,510 Very excited for after lunch and I will ask lunch before I go. 804 01:32:37,510 --> 01:32:45,750 I would say that the basic principles and guidelines on the steps arbitrary detention have been issued by the Working Group on Arbitrary Detention. 805 01:32:45,750 --> 01:32:53,830 How interesting things to say about conditions of armed conflicts. And like, you know, I would urge you to go and have a look at that as well. 806 01:32:53,830 --> 01:33:00,079 Thank you. Thank you.