Welcome everybody to the want of veterans is to human rights.
Very, very nice to have you here. My name is Laura Lazarus.
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.
We're very, very happy to welcome Leigh Day here today and to welcome this collaboration between the student leader to discuss this
groundbreaking or important case and the story of holding military operations to account in the human rights field.
I'm not going to spend a long time generating myself.
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.
We have the marvellous Professor Panopto Canada standing in at 15 minutes notice to to give us his thoughts.
And I persuaded him that he had things to say. So that is that is excellent.
We will start the panel today with the Reverend Nicholas Mercer of who needs very little introduction.
We will then move on to get a fuller description of the case from Melanie.
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,
but I can assure you that Po knows many things and will be saying some very interesting things on these questions.
So if I can call on the customers that start us off? Thank you very much.
Good morning, and thank you very much for the invitation to come and speak today.
Thank you to the Bonaventure Institute. Thank you to Leap Day and thank you for to redress for very kindly printing off the judgement
for me because it would have overwhelmed the parish if I tried to print this judgement off,
such as the thoroughness of Lord Justice Leggett. So I am really setting the context.
I hope for today's conference.
Six years ago, to this day, I was in Kuwait, in Camp Commando with the Americans as part of the first divisional headquarters,
making preparations for the forthcoming invasion of Iraq.
Little did I imagine that six years later,
I would be sitting here in a conference in Oxford discussing some of the subsequent litigation that flowed from it.
I don't want to be too controversial too early on, but it feels a bit like Brexit.
We were rushed into a war. We were rushed into a war without proper planning, and the result was ensuing chaos and litigation.
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.
We didn't even know we were going to invade from the south of Iraq until the beginning of January 2003.
We were going to be a fixing position in the North.
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.
Otherwise it so it seemed that leave was cancelled. So to keep that air of normality.
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.
And you can see what happens when you do that as a nation.
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.
I'm now a vicar. I haven't practised law for seven years, so I just want a bit of latitude.
If I stumble into anything clumsily because actually without that day to day legal practise, you do, I think, lose some of your acumen.
But I hope I can give you some useful backgrounds and insights into Lord Justice Leggett.
Is that the correct term, Tony? He's been promoted since then, but anyhow, forgive me if I've got that wrong.
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.
One person has already said to me they'd like to join the army and I want them to see what gives them
a flavour of what battlefield law looks like because we all practise law in our various fields of it,
presuming that either is in a legal practise or as an NGO or as an academic with battlefield.
Lawyers also have their place too, and it's a very different complexion to the practise of law.
But Telecon was a legal test like no other. We engaged all four Geneva Conventions.
Before that, we'd only really triggered one to three.
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.
Naturally, the law of armed conflict was in its infancy in the British Army.
It was almost like a reserve occupation. Everyone has a battlefield role in the army.
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]?
No, I'm an anaesthetist. So. So she switched over, and just as we did courts, martial and administrative law,
we would switch over to battlefield law when there was a military operation.
So it wasn't our day to day practise either. But jurisprudence in the laws of war has developed substantially since 2003,
and now we all have the benefit of hindsight and the fruits of 16 years of litigation.
And how this is battlefield law and the conditions are far from ideal.
You worked from a large tent or an armoured vehicle.
You move approximately every 10 days. You're living in a tent in the desert.
You carry a respirator and weapon with you at all times.
You sleep with them in your sleeping bag. The times we came under attack.
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
legal decisions as competently as you were expected to do in the time leading up to that.
It is not easy. There's no library of resources.
All I had was Robertson Gulf. It was quite entertaining when I arrived at the division because I turned up
to an exercise with my Robertson wealth and sat down next to the commander.
And one old soldier said in the old days, you used to have to bring a rifle on exercise.
There is the added complication of being on coalition operations.
You were working with other nations, in this case, the United States. That's not easy.
You've only got to look at the administration at the moment and see how decisions are made.
I'm not saying it was all tainted with Trump that we were in the Bush era.
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.
I think it was only out of politeness and courtesy and wanting to keep us on
board that they even bothered to listen to what we had to say in legal meetings.
And there were potential legal consequences for all of us, which I'll come onto because it bears some.
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.
And this was the first time that a war was fought with PGA HQ in the command structure.
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.
I would simply go back to headquarters legal headquarters in the army.
And they would give me a decision on whatever I was flagging up to them.
In this war, HQ had come into being in 1997,
which meant that the government were now involved in the legal making process and because of the turf war that goes on
in the command structure had imposed themselves at a higher rank status to the military lawyers on the battlefield.
So everything had to have a government makeover before you were allowed to implement a decision that was not easy.
And I don't think we accepted very little of what advice they had to give to us,
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.
So checking whether the apples and pears in the markets were the right weight.
Were moved over to Battlefield Law and then outranked us. Imagine the implications for that in a law firm.
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.
So the answer and judgement in all its enormity, I mean,
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.
But it's based heavily on violations of the European Convention on Human Rights and at the time of telecom,
the application of the Human Rights Act on the battlefield was contested legal territory.
This was arguably the single most contentious issue in the Iraq War.
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,
and I knew France was Hampson because we were speaking at an ecclesiastical law conference together.
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,
but obviously bank of which was decided against the applicants. But of course, the legal reasoning underlying that was potentially applicable.
If we were in occupation, we had jurisdiction and if we had jurisdiction.
Ergo, the Human Rights Act might apply. So what to do in those circumstances?
So I went for a preliminary meeting with PGA HQ in January 2003 and raised the Human Rights Act and its applicability.
And that was just left lying on the table. They said they'd get back to us on that and of course, never did.
We then had this problem. When operations did the Human Rights Act apply?
I discussed it with the GSC 1st Armoured Division and said, Look, we don't know Postbank Benkovic, whether it will apply or not.
But actually the best thing to do on the battlefield is apply the highest possible legal standard.
I was conscious that we could be under legal attack. It's called defensive law.
And actually, if you take the moral high ground in war, it's immensely powerful.
It is an operational enabler because your enemies see that when you capture someone, you treat them humanely and decently.
And if you try and apply the highest standards, who could possibly criticise you?
Well, I think the Hallstrom judgement possibly does just that. Even establishing a review for prisoners was contentious.
We wanted to set up a review system for detainees and internees.
This is what the Ministry of Defence wrote to me when I suggested this.
There is nothing in GC for which requires us to review the detention of detainees internees.
Whilst it might be appropriate for individuals locked up following a Saturday night in Brixton, they are not appropriate for detainees internees.
I mean, the sarcasm and the casual way and the slightly racist way that this is presented is horrifying,
but that's the sort of thing that you will be presented with. In other words, shut up.
You're not reviewing it. Well, we just ignored that, but we were ignoring an order.
So, yeah, we will review it, sorry, a set one in process. Again, this is what we're doing.
And we were absolutely right, we probably didn't get it right,
but I think the thrust of what we tried to do got it right and following our scheme of all of this,
having been told Human Rights Act didn't apply and let specialist ousted the Human Rights Act.
Then, of course, in the Court of Appeal in Alaska, the emojis accepted that did apply in detention.
So having made that hullabaloo in 2003, they then roll over in litigation three years later.
I hope, anyhow, that gives you some context into the environment in which we were working.
So moving on to prisoners and status review and again,
I don't think enough emphasis has been given an answer to the military context in which we found ourselves.
It was an enormous problem. I wrote a memo on the 24th of March 2003.
It was internal. This was advice to snipers on the shuttle Basra as to who they could engage.
Having been placed there by the commander of seven armoured brigade there,
and I started off by saying there has been evidence that coalition forces have been engaged not only by Iraqi regular forces,
but by persons wearing civilian clothing. So three days into the war, we don't get a regular war.
We get a war in which people are in civilian dress.
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.
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?
He's probably got a reading age of 11. It's really tough I've got to have give him certainty,
and I've got to be legally certain myself if he doesn't shoot the wrong person on day seven of the war.
I wrote this because I kept a diary.
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,
all in different compounds separated by strands of barbed wire.
Very few were in uniform, but all had been captured in various battles over the last seven days.
Some looked terrified. Others defined. It is days like this which make being a military law lawyer so worthwhile.
So we were presented with 3000 prisoners. Think of the sheer volume of that.
Think how difficult it is to run a conference. With 42 of us, okay.
3000 people, you've got to put up the barbed wire, the latrines, the feeding, the medical.
Regarding the shift patterns. The administration, the IT systems.
It's this is a really, really major task, it's fine sitting here in Oxford, trading in the desert.
Help. The we which we had thought tell it, one is still secret, and quite rightly so.
However, it was cast very widely by the Mahdi,
and the reason for that is that it's based on obviously articles for one and for two of the Third Geneva Convention,
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.
Sorry. Other militias and other volunteers caught, so who were those militias?
And who were those other volunteer calls?
And it goes on in part to members of other militias and members of other volunteer cause, including those of organised resistance movements.
So your category of combatants is potentially huge. So we've got militias, members of volunteer course, organised resistance movements in two parts.
And someone had done a serious amount of research on who that might include.
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,
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.
It's really difficult because that's part of the command structure. That that's what we were dealing with.
And as I said, over 3000 prisoners of war,
most were in civilian clothing and claiming to be civilians that had been captured in various battles was my note.
That's what I thought I was dealing with. And there was a potential for over 2000 tribunals.
And I just raised this question is this type of review possible in expeditionary warfare, which is is deliberately light and fast?
And also in asymmetric warfare, the first Iraq war was fought on conventional lines.
It was really Naito vs. the Warsaw Pact that was a catastrophic defeat for the Iraqis.
This time they realised that's not going to work. We had intelligence people being told to change into civilian clothing.
So status review, so we had a massive problem on our hands, we had to review potentially up to 2000 prisoners.
We anticipated 15000, by the way.
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.
We didn't have any specific Article five regulations.
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,
who I had embedded with them, saying he's just chucking out 250 at a time because he can't feed them.
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,
Article four and a half reviews, which we then went to Basra to the ICRC in Basra,
which they sent back to the ICRC headquarters in Geneva and approved and on the green light from approval from Geneva.
We went ahead and implemented them the next day. And we use the test, if any doubt arises to someone's status,
then they stay as a prisoner of war because we saw that as protected status, we were protecting them.
Some of the cases we've looked at before with, particularly in the light of the American.
Suggestions for dealing with prisoners of war had shown cases in World War Two,
where prisoners of war had been executed because they'd been left with senior members of their regiment and were
being put to death because they were seen not to have fought to the bitter end that was during the Second World War.
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.
So we saw this as protected status. But Leggett says as follows, our approach was wrong.
If Article five had been properly applied, the first question for the interviewing panel should have therefore have been to
consider whether there was evidence the individual had committed a belligerent act.
If the answer was yes, it would have been right for the panel to proceed in accordance with the guidance given.
But if the answer was no, and then so on and so forth, keeping the individual in detention was wrong.
But I don't accept that approach. And I'll tell you why.
The first question, I think, is, well, if a person is a combatant, it's irrelevant whether they've committed a belligerent act.
You can just as I think one human rights bloggers put. On the issue of uniform.
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.
You could catch him on day one of the war. He hasn't even got the. He's just coming along.
Any civilian clothes, he's still a combatant, he's still entitled to prisoner of war statement status.
It doesn't matter if they commit a belligerent act or not.
And if an individual is a combatant, we don't have to show that he was fighting or not just the way it is.
And in any event, how could we know? When I set up the Article four and a Half Tribunal's Article five tribunals?
I knew the Provost Marshal really well, so I had to investigate every single claim.
So I set them off with 10 claims. Right? Here's your first 10.
Good luck, and I managed to get military police to do the investigations,
I went back a week later thinking that was a decent amount of time to get this done.
And said, where if you got to thinking we would be racing through them, we haven't determined anything yet.
Well, why not says, well, how do we get the evidence? The people we've interviewed say they come from the north of Iraq.
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.
So he would move troops around the place so he didn't get pockets of resistance to his regime.
How does policemen travel the whole length of the country in a war to determine their status?
It's impossible. So, you know, as a prosecutor for many years, I had some sympathy with the collection of evidence.
But it's fine. It's difficult enough collecting evidence in times of peace on a battlefield that is nigh on impossible.
And then we get clobbered for time limits, reach of time limits later.
There were other problems, too. The Americans were the spearhead of the operation.
In other words, the Americans headed up towards Al Nasiriya,
and I knew that once they got across the bridge there in up to Baghdad, we were sort of safe.
But we were called relief in place. In other words, we would be given pockets of prisoners.
Here you are, 200 prisoners. Here you are, 20 prisoners.
They'd be handed over from the Americans. That's fine. But they become our prisoners.
Where do we get the evidence from, from your American colleagues? So that in itself is very difficult.
There's four security issues. If I let someone out and he's a combatant by mistake, he can come and kill me.
That's fine, that makes law very different from human rights law that we look at on a day to day basis.
We get it wrong. That could kill me or someone else.
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.
You know, we capture troops, plunk protected status, you know, if you look at it like that, but we're dead.
They could coordinate resistance, they could do an attack, they could bring intelligence and so on and so forth.
So from our perspective, this all looks very different.
So anyhow, a few and the other thing is the manpower bill, full potential review of 12000 people.
You know, the British government can't even deal with asylum and immigration. You know what?
How we expected to cope with a load like that.
How many people would you estimate for lawyers? Would you estimate for?
Would that sort of OK? Would you estimate for would that sort of number?
Do it. What would lead them to do if you wanted to deal with thousand tribunals?
What would it look like? It would run to hundreds. We haven't even got 100 in the British Army.
I've been given a five minute warning already, let me go through as quickly as I can.
Just looking at the individual cases, first of all, Al Saren and Justice Legate assertion that he was wrongly identified as a combatant.
Well, I think that's I've dealt with that already in that he doesn't have to be in
civilian clothes to be it doesn't have to be in uniform to be a combatant.
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,
but the only evidence there was the Marines said they had a 15 hour battle that they allocate.
Well, that's pretty good enough for me. I'm not going to get much more to go on.
The battle for alcohol. I don't know, where am I going to find the presents evidence as to who captured them?
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.
On the boat, they found the weapon was hidden. They found bullets on the boat.
Well, I hear what they say about potentially protect themselves against bandits, but there was a military ID card in my pocket.
Commander Legal, I'm never going to let him out in a million years. I'm amazed he got out. Not a hope.
Of letting him out, it just wouldn't happen. And nor what I do with the other people on the boat.
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.
Utterly unrealistic nonsense. It's simply impossible.
And what about the other two thousand? They're sitting there waiting.
No one's ever brought up. Well, I mean, fill your boots. But it is impossible to do that.
Simply impossible. Just look at the manpower. Look at the resources that we had.
Think about it from a battlefield perspective. It's simply not going to happen.
Let me tell you what I was doing during those 10 days.
The war begins on the 21st of March, so I'm heavily involved in all the fighting that's going on.
The first mention I have irregular combatants is the 24th of March.
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.
You can sit in a field and tell me what's going on in Oxford.
Let's say you'd had civil disobedience in Oxford overnight, and you've got 2000 people locked up.
Come off, it's not going to happen. Remarkably, to our defence, we put in a review for all prisoners.
Every we put an Article five tribunals for all the prisoners of war who claim civilian status,
every single criminal detainee who was detained because we were now in occupation.
So we're dealing with law and order was given legal representation and made submissions to me,
and every single internee was reviewed at a 24 hour, seven day and 28 day period.
We were running four different categories of prisoners simultaneously or with different legal regimes.
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.
Yeah, right. So we fought as hard as we could.
And sadly, if we hadn't fought so hard, we wouldn't be in court.
Finally, prisoner abuse, if I may just finish on this note, I'm not a human rights lawyer seeking damages.
I'm a lawyer who was also an eye witness to prisoner abuse.
I don't care what they say in the press. I saw it. I was there. I complained.
I don't have any financial stake in this game. It happened and it happened systematically.
And it happened probably for all the time that we were in the theatre of Operations.
Looking at the case of Al Wahid, which is still this is still going on in 2007.
So from 2003 to 2007, prisoner abuse was going on.
I'm not alone. The Red Cross saw it.
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.
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.
But the narrative of systematic prisoner abuse has been upended by Al Sweetie.
It appears the residual cases from what I've learnt from Thomas Hampson is that anything
that has the pill tag on it is being put in the bin when it comes to proper investigation.
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.
So we've established through various questions that 720 interrogations are on film.
So whatever the middle man and whatever the professional ethics in the middle,
you just switch on play and you can find out whether those cases are genuine or not.
And as the head of the previous head of, I had said that the tapes contain the good, the bad and the ugly.
I strongly suspect that those allegations made to the ICC are largely correct.
And it may be that the M.D. know that those allegations are correct,
but would prefer to play the narrative of bent human rights laws which play so beautifully.
Everyone loves. Well, we don't. But you know what I mean? And Altham is more depressing evidence of abuse.
And it's remarkable that it's received little or no press coverage.
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.
This is a narrative that the public want to hear, and one that they believe that this is all bent lawyers.
It never happened. It did. As a human rights blogger says it has wider ramifications for claims in relation to detention.
And that's certainly true.
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.
You know, against the grain, against the Ministry of Defence, we worked heaven,
moved heaven and earth to review everyone in our detention and make sure that they were properly treated.
And in anything, we've been victims of our own kindness and legal concern.
But in broader terms, accountability in conflict has been avoided yet again for another generation.
No one could have predicted this narrative. I did think with the Rome Statute that people will be held to account.
And this would usher in a new era. Actually, we've seen a totally different complexion to all of this, however.
I think, as I said in an email to Thomas Hansen recently, it's not all bad.
This is sort of the survivors ball. The threat of accountability has meant improvements in conduct in combat.
There is now in 2016. I'm pleased to say a far greater awareness of prisoners, their rights and our obligations.
The five techniques used in 2003 morphed into harsh and have now become direct
challenge judicially approved and the treatment of the prisoner on the battlefield,
I hope, is immeasurably better than it was 16 years ago.
And I'm pleased to say that the battle over the Convention for Human Rights and its applicability on the battlefield has been established,
and that's really important,
particularly when our US counterparts are trying to argue that people are not combatants and therefore can be abused in Guantanamo.
So forget not what it means to refuse someone combatant status.
It's been a bloody time for lawyers. Lawyers have been attacked for trying to hold the state to account,
and it's incumbent upon other lawyers and the legal profession not to fall in with the government,
but to defend itself and our professional integrity. But there have been some notable victories and advances in the law.
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.
Thank you. Thank you.
Thank you very much for that insight into the context of the battlefield, which is a perfect way to start the discussion today.
I'm not going to call them Melanie Jack Leigh day to work through the ulcer in case Melanie, before going to D-Day,
authored Armed Conflict and Displacement with Cambridge University Press and is now working.
She's talking. She talked the talk, and then she walked the walk. All right.
OK.
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.
The Iraqi civilian litigation is a general description of the many claims that were brought in the English court by Leigh
Day on behalf of Iraqis alleging unlawful detention and mistreatment by British Armed Forces between 2003 and 2009.
And they were brought under to legal basis the Human Rights Act and the Law of Torts.
And it was common ground between the party that the law applicable to the tort claims would be and is the law of Iraq.
We initially Leigh Day was only really involved in specific individual cases, and our work really began in 2006,
when we instructed by a number of Iraqis and their families to when they're in cases where there were extreme allegations of abuse.
We acted, for instance, on behalf of the family of the hamisa, who was the hotel receptionist.
I was beaten to death by British forces while in their custody in September 20th, 2003.
We also represented the victims of the notorious Ken Breadbaskets incident,
where Iraqi civilians were held in suspicion of looting at Camp Breadbasket,
then subjected to a number of physical and sexual abuse of the hands of British soldiers.
These photographs were taken by a British soldier and who then brought them to his
local photoshop to have developed and the staff at the shop called the police.
We also acted in behalf of the Alhambra victims of the Waldemar incident,
which was discovered by the news of the world some two years after the event.
It concerned the beating and kicking of Iraqi teenagers by British soldiers during a riot in the town of Al Amara,
and it was again it was filmed by another soldier who was shouting encouragement.
So these cases and all our cases really private law claims brought against the Minister of defence then not public claims challenging Article two,
Article three Investigations and there are no criminal prosecutions against individual soldiers.
They're meant solely against the Ministry of Defence.
There were some quite unusual features to these early cases in that vein, because they dealt with such extreme allegations of abuse and mistreatment.
We also had the Minister of Defence give partial admissions of liability in the defences,
and there were significant amount of evidence that came out through court martial proceedings or R&B investigations.
In the case of the hamisa in the Ken breadbaskets and also video footage,
we had a video footage and we had photographs in the camera baskets and al-Amari incidents,
which meant that there was quite a lot of evidence we could rely on.
So in these cases, the homicide case resolved in 2008, and the other case is resolved shortly afterwards.
They were all at a relatively early stage of civil proceedings. Then the Baton Rouge enquiry, which was established in August 2008,
explored in more detail some of these allegations that had emerged in court martial proceedings, such as the use of the five interrogation techniques.
The chairman of the enquiry, Sir William Gates, published his report in 2011 and found that the hamisa had been subjected,
subjected to violent and cowardly abuse and assault by British servicemen.
And it also condemned corporate failure at the Ministry of Defence over the use of banned interrogation methods in Iraq.
So I am going quite fast, but is quite a lot of many years of litigation to go through after these initial claims resolved.
We started receiving instructions from other former Iraqi detainees who allege that they'd been abused by British
Armed Forces for varying durations and various degrees varying degrees of assaults between 2003 and 2009.
And so during the period in 2000, between 2009 and 2010, we were instructed by a further 300 claims Iraqi individuals.
So we progressed these claims through really seeking disclosure from the defendants.
And once all of this was going on on 7th of July 2011, we, the Grand Chamber of the European Court of Human Rights,
handed out to significant decisions which would really signal a real shift in the way these human rights claim would be litigated.
So there's going to be a decision. We're also really importantly for us, the al-Qaeda decision.
Was it held that the UK had clear obligations under Article five to protect the rights of liberty and the right to liberty,
and that their obligations were not displaced by the UN Security Council resolution nine, 15 46.
So it's set out a real framework for our detention claims.
And so if shortly after that, we entered into confidential discussions with the Ministry of Defence and over time,
about 90 percent of these claims were resolved out of court. We took on another 600 claims in March 2013.
And so when we arrived at the end of this kind of this process, we started with a plea issuing,
not issuing sorry serving some of these statements of close case on an uncertain amount of lead cases.
And that's when the defendants as well set off their defences and a number of
generic issues came out when were identified as quite clearly in February 2004.
Mr Justice Leggett has you as then became the judge in charge of the case management,
and he ordered that these generic issues should be dealt with by way of preliminary issues.
So it's like a series of hearing dealing with these points of principles.
These are very these legal issues, which would then would be able to apply to the lead claims.
And then from that, we'd be able to assess the merits of the remaining case.
And then and then so so some of these preliminary issues were.
So how'd you come back? Some of these issues were when all the way to the Supreme Court.
So there was quite a lot of them.
I can't really go through all of them, but I just wanted to mention the displacement dislocation articles of Article five primarily issue,
which went to the Supreme Court and which the Supreme Court handed down its judgement in January 2017.
This came initially was about whether Article five was displaced by the lack
specialists of international humanitarian law and application of al-Qaeda.
But then it slightly morphed into a different argument when the Hasan judgement came out in the European Court of Human Rights,
where the grand chamber came up with this had in this new model novel modification tests,
which meant that it which meant that Article five now was capable of being modified by international humanitarian
law in respect of detention of those who were held for security reasons in an international armed conflict.
In January seven, 2017,
the Supreme Court in Al Wahid and Mohammed held that this modifications test could be applicable in a non-international armed conflict.
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.
The detention of an individual would be lawful, provided that it was necessary for imperative reasons of security.
Also Article five for which is.
Procedural safeguards could also be modified by international humanitarian law this time, so the detention would be lawful,
provided that certain minimum standards which were device derived from the Geneva Conventions would be existed at the time.
So these this is a this was the decision of the Supreme Court, but it didn't look into the facts of each case.
The determination on the facts would have to be done by the judge at the trial.
So this is what in part, the ouster and judgement was about.
There were also a number of other potentially prominent issues which I won't go into,
such as the application of the scope of the doctrine of conduct to state the application
of foreign limitation law to domestic proceedings and in case of transfer cases,
joint liability and Iraqi law. So once all this was going on in December 2014, the Al-Quaeda enquiry report was published.
This enquiry was set up to investigate allegations by a group of Iraqis who claim that the British
forces had murdered 20 Iraqis and abused nine others following the Battle of Danny Boy in May 2004.
The report dismissed the most serious allegations of torture and murder,
concluding that they were wholly without foundation and entirely the product of deliberate lies.
But it's still the chairman still found that these nine detainees had been mistreated,
and some of this treatment amounted to ill treatment in breach of the Geneva Conventions.
The emoji seised on these the the most serious conclusion.
And on the same day, Michael Fallon, who is the defence secretary,
gave a statement at the House of Commons calling for measures to stop unscrupulous lawyers.
This marks for us a radical shift in the rhetoric,
and we could see then a clear difference between the original outrage caused by the news of the world images,
which we saw early on and the now different tabloid headlines from December 24 14 online onwards.
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.
So in this tense context, and despite all these at a vitriolic attacks in the media, we work tirelessly towards these.
Our first full trial, three cases were selected as test claims to be dealt with during the first round of trial in June 2016,
and each case, the way they were selected is that each case emanating from a different phase of the conflict.
So Mr. outside Iran, who was captured and detained shortly after the commencement of the invasion.
He was an annoyance at the invasion case.
He, he and other prisoners were a claim that they once they were detained at the temporary camp,
they had been made to face to face down on their back,
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.
Mr Abdul Wahid was a post occupation phase case.
He was arrested in a house raised right by the soldiers who were looking for his brother in law.
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.
But he was still detained for another month and then just over 30 days after after that.
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.
There was another there was supposed to be another serious brain injury case,
in which case which occurred during the occupation phase, but it settled shortly before trial.
So that's why there's no occupation case in the trial.
And then KSU and Amavi, which were dealt with in the second round of trial in 2017, are both invasion cases as well.
These there is a lot of challenges in bringing these these cases.
We had, you know, these with from clients living in Iraq and speaking English, not speaking in English.
We had it was sometimes difficult to take it to obtain instructions for claimants who are based in Iraq.
Not least because because of the security situation in Iraq, we can go and meet them there.
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.
We met them in third country. So that involved a lot of also logistical difficulties.
These client of these clients were very vulnerable and often traumatised.
And so we had to be very sensitive in the way we interviewed them.
And bringing the claimants and the witnesses in London was also difficult in that they were initially refused visas to come and give evidence.
Mr Justice Leggett Reserve the judicial review proceedings they to give you the reason why they were refused a visa.
And in the end, just before the beginning of the hearing, they were granted entry clearance to come in,
bring can, bring evidence, give the incidents in the judgement.
So we didn't. We made it in the end and we went through trial.
And in December 2017, Mr Justice Leggett handed down his judgement in favour of all four claimants.
And if they made some really strong findings regarding breaches of Article three, Article five,
breaches of the Geneva Conventions and also breaches of Iraqi law, although a limitation applied.
And so just go through it quickly through the key findings that he signed on floors and detention policies,
which we've been through with the Nic Mercer about.
He found that the emoji operated on the flawed system of detention review, which was based on a wrong understanding of the Geneva Conventions.
He also found in the post occupation phase that the detention review process lacked
the institutional guarantees of impartiality and opportunity for participation,
which had been found by the Supreme Court as being essential for, in any case in any phases of the armed conflict.
He also made some key findings of mistreatment of us, both a systemic and an individual nature.
So with regard to the systemic treatment, Mr Al seven,
KSU and Imari all claimed that there had been a hooded during the transportation to their camps,
and who did was one of the five interrogation technique.
It was already banned at the time, but it was very much used at the time.
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
is a form of degrading treatment in breach of both Article three of the European Convention and also Article 13 of the Geneva Conventions.
So now the current doctrine prohibits holding in all circumstances and at the time of Mr Al Wahid's detention.
So in 2007 it was prohibited. Who did, who was prohibited.
Instead, detainees were made to wear blacked out goggles and ear defenders so that they could neither here nor see.
And Mr Justice Leggett held that this practise was deliberately calculated as a
means of dehumanising the detainee and giving the captors a cloak of invisibility,
and therefore depriving Mr Al Wahid of vision and hearing for longer periods and for improper reasons was a form of degrading treatment.
He also made some findings in relation of harsh hushing, which was alleged Mr Alloway.
He'd alleged that he had been subjected to harsh tactical questioning, which was an approved interrogation technique at the time by the Hamoody,
which involved shouting and deliberately insulting and abusing the detainee.
It was abolished in 2012 and replaced with direct challenge,
but the judge held that it confirmed that harsh their harsh approach when conducting tactical questioning amounting to.
Degrading treatment. And finally, as an example,
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.
But just in relation to Mr. Serrano, he, the judge, recognised that when assessing violations of Article three in the context of war,
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.
But this doesn't mean that, you know, any violence is excusable.
So assault involving gratuitous infliction of pain and humiliation, such as deliberately running over the backs of detainees is,
you know, clearly crossed a level of severity for Article three and constitutes inhuman and degrading treatment.
So in conclusion, I just wanted to kind of reiterate that Mr. Justice League, its judgement is very, very reasoned ruling,
and it's a very welcome response to the endless accusations that allegations of
mistreatment by British troops are motivated by dishonest Iraqis and self-serving lawyers.
These findings are really important in the context of these claims and the very hostile environment in which they were litigated.
The claimant's evidence was tested in court and was found by the judge to be credible and is very important.
Also, I should also note that the judge found that the emoji was in breach not only of its obligations under the HRA,
but also under the Geneva Conventions. And so what this case shows,
really is that the emoji's own policies and procedures about the treatment of the
detainees and prisoners of war violated the Geneva Conventions during the Iraqi conflict.
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
breach of these breaches of Geneva Convention to obtain redress in court and compensation.
But it's also highlighted the institutional failures at the Ministry of Defence to prepare for the Iraq War and
to ensure ensure that soldiers went to war with proper training that was compliant with the Geneva Conventions.
That's why our cases are against the Ministry of Defence, not the individual soldiers.
And finally, I should also note that the judge made breach of findings of breaches of Iraqi law.
So in the case of assault and unlawful detention,
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.
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.
He would have used his discretion and allowed the claims in court and Iraqi law as a matter of public policy.
So even if the HRA is scrapped, we here are currently in.
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.
And these types of cases, which quite often would represent so could be claim, could be brought into tort law.
And so it wouldn't bring them to total a halt.
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.
I. Sorry, I don't know to put this.
They just. Well, thank you very, very much for that overview of.
And also for an insight into the for those of you who are here from the BCCL and other students for an insight
into the the very real political climate that leaders have been working under in pursuing these claims,
I think that's a very important part of this story.
And of course, this particular question has broader implications for the politics of human rights in this country,
and I think it's worth exploring some of these questions in in discussion.
I'm going to call upon Dapo to give us some reflections after seeing two perspectives from two
sides of the practise based conflicts around the imposition of human rights and battlefield.
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.
So the traditional thing when one is speaking at a conference is to start by
thanking the organisers for inviting the speaker to take part in the conference.
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.
Can you? Can you fill in it? You know, one should always try to learn lessons from whatever happens in life.
And the lesson that I have learnt is don't come too early to a conference.
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.
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.
First of all, in the actual operations themselves and then in the in the litigation, as Laura says,
what I'll try to do is to provide a sort of academic perspective in relation to these issues.
And I want to try to answer the question of where are we now?
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
in armed conflict and in particular in relation to two specific questions relating to the application of human rights law in armed conflict?
So this litigation that you've been hearing about has thrown up two questions in relation to the application of human rights law.
Question number one, a question which pre-dated the the Iraq War but has been intensified by this litigation
is the question of the extraterritorial application of of human rights law.
So to what extent does the convention and the Human Rights Act in this country?
To what extent do those legal instruments apply extra territorially?
So that's question number one. And where are we now on that following this litigation?
Question number two is the question of.
To what is the relationship between human rights law and the law of armed conflict or international humanitarian law,
how exactly do we conceptualise this relationship?
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,
he talks about breaches of the European Convention on Human Rights, and he talked about serious breaches of the Geneva Conventions.
So what's the relationship between these two bodies of law and where are we now in
terms of what answers have been provided by these cases that we've been talking about?
So first question extraterritorial application of the Human Rights Act and the convention?
And Reverend Mercer talked about how from the very beginning, he raised this issue.
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.
And in part, that was because of the Bank of its judgement of the European Court of Justice of the
Grand Chamber and the decision that the European Court of Human Rights had reached.
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?
To what extent are these persons within the jurisdiction of the U.K. for the purposes of the application of the convention?
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,
and the first point which had been already acknowledged before even this round of cases is that in cases
where a state exercises overall control of a territory not its own but outside of its own territory,
then persons within that territory would be within the jurisdiction of of that country.
So in this case, the UK and that has been well, well accepted.
The difficult question was whether there was another conception of jurisdiction, one which was not a sort of spatial conception of jurisdiction,
but one which can be regarded as a personal conception of jurisdiction if you exercise authority or control over an individual.
Does that automatically mean that that individual is within your jurisdiction for the purposes of the application of the convention?
And that's the question that these cases have thrown up.
First thing that I suppose the first sort of clear lesson that these cases have thrown up is the one
that comes from our scare me and the one that comes particularly from the Baha Moussa incident,
which is that whenever a person is detained by a state,
then that person is within the jurisdiction of that state and therefore the Convention and Human Rights Act will apply to that person.
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?
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?
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,
but you have overall control of that small space and therefore this person is within your jurisdiction.
Or is it because you have control over that individual?
Now, if it's because you have control over that individual, then why would the convention not apply if, for example,
you were to stop a person at a checkpoint and you were to commit certain acts in relation to the checkpoint?
What about if you didn't stop the person at the checkpoint, but rather what you did was you frogmarched them for three miles,
walking and abusing them as you went along, but never actually exercising control over any little bit of territory at any point in time?
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?
Is that our skinny in the European Court of Human Rights,
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.
So if you control, if you exercise authority or control over the person, you have jurisdiction.
In fact, in one place, they talk about control and thus jurisdiction.
And in fact, they specifically say,
If you look at our cases whereby we have held that a person that is detained is within the jurisdiction of the state.
The reason for jurisdiction is not because of the control of the ship, the plane, the room in which they are held.
So that's not the reason. It's not because you have control over that small territory.
And that seems to suggest that jurisdiction is about personal or the exercise of personal authority or control.
And that seems to suggest that if you have enough control over the person to be able to violate their rights,
then you have enough control to say that the person is within your jurisdiction.
That is the thrust of most of the judgement in the skinny case, except for the last couple of paragraphs.
You then get to the last couple of paragraphs, I think Melanie put this up.
The grand chamber says, well,
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.
Question, what does that mean, exercising public powers?
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.
So we know that it's a lower test than exercising overall control over the territory.
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,
but that the court considered that not in itself be equal to exercising overall control something that's curious.
So where we left with, I think we're left. In the European Court of Human Rights, almost essentially on the knife edge,
where the logic of the decision, the logic of the decision in our skinny seems to suggest that.
Jurisdiction equals personal control or authority.
But the actual decision doesn't say this now transferring this back to cases in the UK.
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.
Enter stage left Mr Justice Leggett again says If I read Alleghany the principles in our skating,
he suggests to me that if you have enough control over the person's affairs to violate their rights,
then that will give you enough control to say that they are within your jurisdiction.
That was the decision of the High Court and of Mr Justice Leggett to do so.
You have this. If you like jurisdiction equals authority or control, full stop.
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.
But the European Court of Human Rights has not gone that far yet.
And therefore, we're not going to go that far yet.
So we stick to what the court said in terms of the UK was exercising public powers.
So we're still in that first question. We're still essentially at a place where the jurisprudence can go either way.
It can go either way. You can follow the logic of the decision in our scanning all the way through to the end.
And you say jurisdiction equals authority and control and therefore what that would mean if you take a right to life case.
The fact that you kill the person means that they are under your control because you
have enough control to take their life and therefore the right to life is engaged.
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,
but that case will, I don't know if it's one of the cases to come.
But that case will come and that case will be tested.
And my view is that actually Mr Justice Leggett will ultimately be proven to be correct on that question.
Probably not in the courts in this country, I suspect. But I think in Strasbourg,
it will be very difficult for the Strasbourg court to ignore the logic of the entire decision in Strasbourg
and also because any other basis really would be an arbitrary it would be arbitrary line drawn.
So that's that first question. The second question, I probably don't have enough time,
but the second question the relationship between human rights law and an H.L international humanitarian law, where are we now?
So one of the questions that has arisen there is to what extent should we say that international
humanitarian law is the spécialisée and therefore it essentially prevails over human rights law?
That's one of the questions that has been raised, and that line of reasoning arguably find some support.
In a statement that the International Court of Justice made in the nuclear weapons advisory opinion,
where they referred to international humanitarian law as leg specialists.
And so this terminology gets bandied around a lot and in a lot of this litigation that
we've been talking about the first line of defence of the government in the early days,
as I understood it was essentially the same thing that was said to the Reverend Mussa.
You know, the idea that human rights law has nothing to do with with armed conflict,
it's all about the law of it's all about the law of armed conflict.
It's all about HL.
But it all depends on what Lex Spécialisé means, and I would suggest that there are at least three different ways of conceptualising specialists.
OK, so one way of looking at it is to say. If.
HL is the Lex specialist, is it totally displaces human rights law, so human rights law has no role at all.
It is just HL, so this is the idea of total displacement.
Well, that has been rejected by every single court, in every single case where this argument has been made,
whether in the UK or internationally, the idea that a child displaces totally human rights law has been rejected.
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.
But if it comes into conflict with the law of armed conflict, the law of armed conflict will prevail.
So in that sense, like specialist is doing the work of being an arbiter of of conflict.
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,
the third conception is one that you can call the principle of coordinated interpretation.
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,
and even though it's describing something that other people have talked about, I think that's a good thing.
So it's like people talking about the principle of complementarity,
but this is better principle of coordinated interpretation because it's more legally sound.
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.
Right. So you use one body of law to interpret another body of law and its coordinated interpretation
because you achieve the same result in the sense that the two obligations are the same.
So they are coordinated the same, but you using one body to interpret the other.
And it's this third conception of like specialists that has essentially been adopted.
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,
said that Mohammed and in this litigation that we've been talking about.
So what does this principle say?
It says that there are cases where we can interpret human rights law, having determined that human rights law applies.
There are cases where we can use H.L to interpret human rights law.
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.
OK. So in this specific context, what do we mean in the context of detention?
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,
Article five allow for detention on grounds of imperative reasons of security.
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.
I think in principle, the I think the principle of coordinating interpretation is correct.
But my view, actually is that the European Court of Human Rights went too far in Hazan,
and this is actually where the coordinated interpretation versus complementarity view makes a difference because.
It's a principle of interpretation, and the question is,
how far does interpretation go when you have a treaty that says there are only certain specified grounds for detention?
Can you read in another ground which is not specified?
And does that remain interpretation?
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.
Note this only applies in the context of an international armed conflict.
So this is significant significant because in the context of this litigation, as you talk about the different cases.
Some of it will be an international armed conflict, but at some point it will become a non-international armed conflict,
and therefore at some point questions will arise as to whether HL action even HL does, even on its own, authorise this detention.
So that's and that was explored in the southern Mohammad case.
So that's the first point where we are. We can use HL to interpret human rights law and in the context of detention,
we can read in two Article five grounds for detention that exist under HL.
So that's. And then the second issue is the issue of procedures.
Can we use HL to interpret the procedures?
And this is where the point to sort of link the two presentations, the points, the points, which I thought were very compelling.
I have to say that Reverend Mercer was making about the difficulties of engaging in procedural review in the context of an armed conflict.
This is where it becomes relevant. Because, yes, a child does provide for certain grounds of review,
but the standards that a child provides for and the mechanisms that it provides for are much more
relaxed than what the the European Convention on Human Rights Law would ordinarily require.
So the effect of Hassan, the effect of Saddam Mohammed,
is that actually the right standard to use in the context again of an international armed conflict,
I stress, is you read in two Article five five for the standards of the Geneva Conventions, the standards of international humanitarian law.
But this is where the kind of feedback loop comes up,
because it may well be that in thinking about what international humanitarian law itself provides for,
even that might need to be infused with some notions of what human rights law provides for,
at least in terms of basic notions of independence of the body, impartiality opportunity to make representations, that sort of thing.
So you may end up going in in a sort of circular movement.
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.
And I don't, you know, I'm not expecting to see whether I agree or I don't disagree.
But the important point is that actually he tries to reach it by reference to whether or not
these are breaches of the Geneva Conventions through this mechanism that I've been talking about.
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?
The big question or. Well, I think the big question that's left in the in the particular context of
detention is the question of what happens in a non-international armed conflict.
All well and good to say yes. You can make reference to how to interpret human rights law.
HL has quite a bit to say about detention in an international armed conflict.
We have all of the Third Geneva Conventions, all of the Fourth Geneva Conventions.
What if it's a non-international armed conflict? Afghanistan for most of the time, Iraq for much of the time?
What do we do there? Because they're arguably HL has very little to say.
Either on the question, in my view of whether the detention is even authorised at all.
That was the big issue litigation. One of the cases does H0 provide an authority to detain?
And I think the supreme, well, the Supreme Court didn't really give an answer,
but the majority lean towards the view that I think correctly that it does not.
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.
And the same is true of the questions of procedural guarantees review, you turned to H.R., would you say yes?
We can interpret the convention in the light of HL, but it has nothing to say.
Does that then mean that we are, shall we say, stuck with what the European Convention provides for?
And I say stuck because of the points that were made earlier that?
How do you apply those standards in the type of context that has just been described?
How could you possibly apply those standards there or if I child provides no authority to detain at all?
Does it mean every detention is ipso facto going to be a breach of the convention?
Those are questions that are still. Unresolved, I think, in this question of the relationship between human rights and H.L.
Yeah, yeah. So you've just proven me right up so that I can call upon you in 15 minutes before the event.
Now we've run a bit over time.
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.
I think that's probably. Is that right? Or should we suspend?
At least in theory. No. Yes. Yes, a brief comments, no questions, please.
And if you could keep them as succinct as possible, I'm going to choose to.
One. Two.
All right. All right, so there's there's a microphone coming down.
I'm going to ask you just to wait for the microphone so we can. Thank you.
Firstly, just a question for Dafoe, which is probably a bit unfair given that you've just done this impromptu presentation,
but I'd be really interested to get your view on the principle of coordinated interpretation
then applied by the Supreme Court instead of Mohammad and Al Wahid in respect of UNSCR,
and potentially then filling the gap where it doesn't allow during a NYAG, give the authority for detention.
And your view as to. Yeah, just on the way they dealt with that in terms of UNHCR,
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.
And again, having been a lawyer who's been representing the claimants, it's been.
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.
And it sounds that if you think that he didn't apply the military context to his
findings on Article five in the way that he did when looking at Article three,
and I just wondered if you have any observations on why the Ministry of Defence
might have chosen not to apply for permission to appeal those findings.
And you know, that may have just been a litigation strategy as opposed to a military strategy.
And again, as you've moved on from your previous role,
whether you're aware whether it has actually changed its military doctrine as a result of that judgement or is doing what you say,
and he thinks he also got it wrong and is just going to plough on with with the previous approach.
Can we have the second question now and then we'll have the answers so we can.
This is over here. I confess to being an anthropologist, not a lawyer or in law and what it seems.
Also, I do research on gender, so I'm sorry.
Reverend Mercer, but I'm going to ask and of course,
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,
or have they in the past? Then would the duty of care or the duty of care to the military?
The duty of care to the prisoner would have been different.
Could it possibly be different in terms of what gender brings and what women bring to the battlefield in light of Christine Lagarde?
She will know and she an economist, I think, and she said when she became head of whatever.
Well, what was it, IMF if women had been CEOs at the time of the banking crisis?
Would would the more women in post would we had of less of a disaster?
And I'm not saying that what you presented is a disaster, but the whole idea of duty.
Duty of care, of course, is two way Three-Way Four-Way whatever.
Thank you. So we'll have to. Um. Next, Mercer, would you like to respond first and then I'll respond.
Sorry. I think it's a question of why the energy is not talking about it.
No, I suspect they didn't want prisoner abuse particularly visited in any court proceeding.
I mean, I find it by the lack of press coverage,
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,
particularly that there were no reporting restrictions and what I have to say, I find that very odd.
And I think the fact that Justice David found that on the balance of probabilities that abuse did take place,
that's the narrative that it wanted to hear. And this applied not only to the warfighting faith, but also to overheat in 2007.
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.
And also, that's something the press. A lot.
Well, I want to report because it doesn't fit the public narrative, we all know what civilised markets can do politically.
And I think they didn't want to go there because of that.
I think that's sad because I do think there's some compelling, compelling arguments on the article,
five points on detention and review, and I think that raises difficulties.
I'm delighted, however, with the Article three findings.
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.
So that that's my hunch that if women around the world.
My wife would believe so what can I say? I think it's very difficult.
I mean, my view is, well, I'm I'm a bit old fashioned.
I feel hand-to-hand fighting. I must confess that infuriates my very radical daughter over dinner.
So I don't believe that women can fight it. But if you're applying it very strictly, then you captured.
It's a competitive advantage. I think once reduced to capture, then that's still Department of Equality Rights.
But there are difficulties in terms of personal dignity and other things that might fit with that.
For instance, we were very careful about stopping and searching and having a female policeman present.
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.
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.
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.
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.
Lack of trust less testosterone in the military headquarters now.
So there's an awful lot of testosterone.
There's an awful lot of testosterone in a war of you've seeing Paris men of war, but excellent series on the television.
You know, these people trained to fight and to kill.
And you know, we need them to do the last hundred metres of foreign policy.
So I still have great support for the military and all that. It's almost to do so.
Yeah, I'll leave it there. Do you want to just quickly respond?
We're probably pushing time before you start with the women running running.
I just a factual observation, actually.
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,
his two most senior officers would have been women to the top two.
Women in the British Army were actually lawyers, said the most senior.
I think she's still the most senior woman who really is the director of Army Legal Services.
And at the time, three years ago, the next most senior was actually the director of operational.
The head of operational law was also a woman at the time was retired.
I think so. Just on that one that that's happening to some degree, at least in this corner of the world,
the kind of legal question about coordinated interpretation and using UN Security
Council resolutions as a way of providing authority to detain under human rights law.
So my view is that that is my view is that there's no problem with with doing that.
And actually, this is again where the language of interpretation essentially comes in.
So let's think about what it is that we're talking about.
Article five of the convention essentially requires that you must have a legal basis for detention, and that's what it requires.
And what both the European Court of Human Rights have said and also the courts in this country said,
is that that legal basis need not come from domestic law.
That legal basis can come from international law.
And so if the legal basis can be provided for by the Geneva Conventions,
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.
Ultimately, of course, the UN Security Council resolutions legal basis finds its basis in the UN charter.
So if the Geneva Conventions can provide it, there's no reason why the UN Charter can't provide.
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
legal basis for detention is that so that people know that there is a legal basis to be detained?
How would they know? But you would get that problem, actually.
Whether you find it in the Geneva Convention, the Security Council is.
I'm going to bring this to a close and thank the speakers very, very much for a really very fascinating family.
Very excited for after lunch and I will ask lunch before I go.
I would say that the basic principles and guidelines on the steps arbitrary detention have been issued by the Working Group on Arbitrary Detention.
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.
Thank you. Thank you.