• Robert Spicer

Iraq War: UK case law

The Examples of UK cases connected with the Iraq War following selection of Iraq-War related cases aims to show the range of issues connected with the War which have impacted on the English legal system.

R v Jones and Others (2006) The issue in the appeals in these cases was the extent to which the international determination to prevent war was transposed into English law. There were 20 appellants. They all committed acts in 2003 which were criminal offences unless there was a defence of legal justification. All the appeals raised the issue of whether the crime of aggression formed part of English criminal law. The appellants acted as they did because they wished to prevent the commission of that crime against Iraq. Their actions included breaking into RAF Fairford and damaging equipment and trespass on Marchwood Military Port. The House of Lords decided the following: • Customary international law is part of the law of England and Wales. • Customary international law has recognised a crime of aggression. • Crimes recognised in customary international law are not automatically recognised and enforced by English law without the need for any domestic statute or judicial decision. • The crime of aggression is not a crime in the domestic law of England and Wales. • Even if aggression had been a crime in English law, the apprehension that such a crime was about to be committed could not have made it reasonable for the appellants to use force of any kind to obstruct military activities at Marchwood or Fairford. • The International Criminal Court does not have jurisdiction over crimes of aggression.

R (on the application of Gentle and another) v The Prime Minister (2008) The mothers of two young soldiers who were killed in Iraq tried to use the European Convention on Human Rights to make the government hold a public inquiry into the circumstances in which Iraq was invaded. Their application failed. The House of Lords ruled that Article 2 of the Convention (the right to life) could not be used to question the legality of going to war. Lord Bingham stated that, despite the numerous occasions on which states had gone to war in the last fifty years, and the fact that such wars inevitably caused deaths in the armed forces, Article 2 had never been applied to the process of deciding on the legality of wars. The states of Europe could never have contemplated binding themselves to set up independent public inquiries into the process by which a decision to go to war had been taken. Lord Hoffman commented that it was desirable that the government should not act in breach of international law but this did not mean that Article 2 applied. Lord Hope stated that it was a hard thing for a court to say to the mothers of two young soldiers who lost their lives that it could do nothing for them in the campaign to have the circumstances that led up to these tragedies investigated. Baroness Hale is reported to have made the following comments: • If the use of force had been lawful, it would be of some comfort to the mothers to know that their sons had died in a just cause. • If it was not, there might at least be some public acknowledgment and attribution of responsibility and lessons learned for the future. If her child had died in that way, that was exactly what she would want. • She wished that Article 2 did impose a duty on a state not to send its soldiers to fight in an unlawful war.

Kendall-Smith In April 2006 Malcolm Kendall-Smith, an RAF doctor, was sentenced to eight months imprisonment for failing to comply with lawful orders after he had refused to serve in the Iraq War. Kendall-Smith had refused to go to Iraq because he believed that the War was illegal. He did not want to be complicit with an act of aggression which was contrary to international law. He stated that he had evidence that the Americans were on a par with Nazi Germany with their actions in Iraq. The ongoing acts of aggression in Iraq and systematically applied war crimes provided a moral equivalent between the US and Nazi Germany. He also refused to take part in training and equipment fitting before deployment to Iraq because they were preparatory acts which were as criminal as the act itself. In sentencing, Judge Advocate Bayliss is reported to have made the following comments: • The offences were so serious that only a custodial sentence was appropriate. • Kendall-Smith would be ordered to pay £20,000 defence costs. • Obedience to orders was at the heart of any disciplined force. Disobedience to orders meant that it was not a disciplined force but a disorganised rabble. • Those who wore the Queen’s uniform could not pick and choose which orders they obeyed and those who did so must face the consequences. • Kendall-Smith had sought to make a martyr of himself. He had shown a degree of arrogance which was amazing. • He might have acted out of his moral viewpoint but his interpretation of the presence of British forces in Iraq as illegal was incorrect. The reported statement by Bayliss that members of the military cannot pick and choose which orders they obeyed, and those who do so must face the consequences, appears to show a breathtaking disregard for the principles laid down during the Nuremburg trials, in particular the clear statement that the plea of superior orders cannot be considered as an absolute defence, but merely as a mitigating factor.

Hopps v Mott MacDonald Ltd and Ministry of Defence (2009) H was a civilian engineer employed by MM to work in Iraq in the emergency reconstruction programme after the Iraq War in 2003. His work included the assessment of Iraqi power stations and advising on the work needed to restore electric power to Southern Iraq. Security for MM’s employees was provided by the Army. They provided ordinary, soft-skinned Land Rovers. These did not protect against sniper fire or improvised explosive devices (IEDs). H was also supplied with a helmet, body armour and an armed escort. In October 2003 H’s Land Rover was attacked by an IED. He suffered serious injuries and claimed compensation from his employer and the Ministry of Defence. The claim was dismissed. The court made the following points: 1. It was not negligent to transport civilian employees in unarmoured vehicles in southern Iraq in 2003. 2. This decision took into account the level of risk and the urgency and desirability of the emergency infrastructure projects. 3. MM and the Army were continuously reassessing the security situation. In any event, the absence of a recognisable risk assessment would only be significant if, had such an assessment been made, it would have resulted in a decision to provide armoured vehicles. 4. H had failed to prove that an armoured vehicle would have prevented or reduced his injuries in the context of this particular attack. 5. The emergency reconstruction of Iraq was a “desirable activity” for the purposes of section 1 of the Compensation Act 2006. The court’s decision took into account the possible deterrent effect of a finding of liability on future activities of this type. This was thought to be the first decision of an English court in a case involving a claim by a civilian for personal injury suffered in an attack in Iraq while working after the war. It also appears to be the first case in which a judge has applied section 1 of the Act of 2006. Section 1 of the Compensation Act 2006 states, in summary, that a court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care, have regard to whether a requirement to take those steps might prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or may discourage persons from undertaking functions in connection with a desirable activity. The expressed aim of the Act of 2006 was the protection of volunteer sports organisers from legal action by participants injured in recreational activities. It was accepted that such organisers had a disproportionate fear of litigation and this had resulted in risk-averse behaviour. The Act was not intended to provide a yardstick for the desirability of the Iraq War.

Davies v Global Strategies Group (2009) D’s husband was shot and killed in Iraq. He was employed by G, which was a company supplying defence and security services. G had been contracted by the United States after the Iraq War to provide convoy escort services for commercial vehicles. D’s husband was driving to meet a convoy in northern Iraq. His vehicle came under fire. The vehicle was soft-skinned. All doors except the driver’s door had been removed from the vehicle. G’s personnel were equipped with weapons, helmets and body armour, but no collar for neck protection. G’s tactics involved vehicles being highly manoeuvrable, personnel and weapons being highly visible, and personnel being able to leave their vehicles quickly. D’s husband was shot through the windscreen of the vehicle in which he was travelling. A bulletproof windscreen would have prevented this, but it was stated that collar protection would have made no difference because the bullet struck the deceased just below his left ear. D claimed compensation from G for the death of her husband. The claim failed. The court stated that G’s tactics had been reasonable. The deterioration in the security situation between the time when the contract with G was signed, and the death of G, had not been such as to call for the wholesale change of tactics in favour of armoured vehicles. Also, at the time of the operation when D’s husband was killed, armoured vehicles were not available. The wearing of a collar would have made no difference. The stage had not been reached when the operation should have been called off. On the evidence, it had not been reasonably practicable to have fitted a bulletproof windscreen to the vehicle. There was no causative breach of duty on G’s part.

B-52 Two In May 2007 Phil Pritchard & Toby Olditch, known as the B-52 Two, were acquitted of conspiracy to cause criminal damage. They had broken into RAF Fairford shortly before the invasion of Iraq with the aim of immobilising B-52 bombers to prevent them from bombing Iraq. The two men were arrested inside the perimeter fences at RAF Fairford in the early morning of 18 March 2003, two days before the bombing of Iraq started. They carried with them tools to damage the planes, nuts and bolts to jam the aircrafts’ engines, pictures of ordinary Iraqi civilians and paint symbolizing blood and oil. They also carried warning signs for attaching to any damaged planes which would help alert aircrew to their action. The two men acted nonviolently in a way which would not result in harm to anyone, including the military personnel at Fairford. They intended to stay with the aircraft and tell the operators what they had done. The jury at Bristol Crown Court accepted their defence that they were acting to prevent the US Airforce committing war crimes and causing damage to life and property in Iraq. The two argued that their action was reasonable because other means of protest had failed. They were acting to prevent a crime: potential war crimes against Iraqi civilians and to prevent criminal damage to Iraqi property. The B-52 Two stated that they were nonviolent and accountable, attempting to prevent the deaths of innocent Iraqis in an illegal war. They were careful to ensure that no harm would come to anyone from their action. They maintained that war crimes were committed in the bombing as cluster bombs, which spread unexploded bomblets that kill and maim civilians (like mines) were used, as were ‘bunker busting’ bombs tipped with depleted uranium which broke into fragments, spreading radioactive toxins which are harmful to civilians. During the trial the prosecution accepted that even delaying the bombers would have prevented civilian casualties, as it would have allowed those fleeing cities more time to escape. In his summing up the judge explained the legal tests that must be met for the prosecution to succeed. A document ‘steps to verdict’ had been provided to assist the jury. Toby Olditch commented after the case that he and Pritchard were overjoyed, and thankful for the good sense of the jurors, for the wonderful support they had received, and for the commitment and expertise of their legal representatives. But hundreds of thousands of Iraqi people had still suffered as a result of the Government’s actions. It shouldn’t have come to the point that people had to take direct action to try to check the abuse of executive power. Phil Pritchard stated that he was delighted that the jury had returned a unanimous not-guilty verdict. Their action in trying to prevent illegal attacks on the people of Iraq in 2003 had been vindicated. He hoped that war of this kind never happened again.

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