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Queen's Bench Division (Divisional Court) Queen's Bench Division (Divisional Court) Lord Justice Rix, Justice Forbes First Instance application for judicial review 14 December 2004 JUDGMENT Lord Justice Rix: 1 This is the judgment of the court to which both members have contributed. Introduction 2 The claimants in these proceedings are all relatives of deceased Iraqi civilians ("the deceased"), who have been killed by or in the course of action taken by British soldiers in the period following completion of major combat operations in Iraq and prior to the assumption of authority by the Iraqi Interim Government (i.e. the period 1 May 2003 to 28 June 2004). The defendant is the Secretary of State for Defence ("the Secretary of State"). 3 This judgment is concerned with the determination of two preliminary issues (as to which, see paragraphs 5 and 6 below) arising out of the claimants' application for judicial review of the Secretary of State's alleged failure and/or refusal: (i) to conduct independent inquiries into the deaths of the deceased, (ii) to accept liability for those deaths and (iii) to pay just satisfaction. 4 Stated in general terms, the claimants' application for judicial review concerns the legal responsibilities of the Secretary of State under section 6 of the Human Rights Act 1998 ("the HRA") in relation to the civilian deaths in question. It is the claimants' case (as originally pleaded) that the Secretary of State acted in breach of section 6 of the HRA, in particular by his violation of the procedural obligations under article 2 (the right to life) of the European Convention on Human Rights ("the Convention"), in failing and/or refusing to conduct independent inquiries into the deaths of the various deceased. 5 On 11 May 2004, at the hearing of the claimants' application for permission to apply for judicial review, Collins J granted the claimants permission to apply in relation to the two preliminary issues to be determined in these proceedings and (inter alia) ordered that the remainder of the application for permission be stayed until the determination of those preliminary issues: see paragraph 1 of the order of Collins J, made by consent on 11 May 2004 ("the 11 May Order"). 6 Accordingly, these proceedings are concerned with the determination of the following two preliminary issues, as modified later by agreement between the parties (as to which, see paragraph 8 below): see the terms of paragraph 2 of the 11 May Order: “2 There shall be a hearing to determine the following preliminary issues: 2.1 Whether the European Convention of [Human] Rights and the Human Rights Act 1998 apply to the circumstances of this case; and 2.2 Whether the procedural duty under Article 2 of the European Convention of Human Rights has been violated by the Defendant.” 7 By the same Order, Collins J also granted permission to amend the original claim form as follows: (i) to include Daoud Mousa (the father of Baha Mousa: as to whom, see below) as a new claimant and (ii) to amend the original grounds of the application to include (where relevant) a complaint that the Secretary of State has violated the equivalent procedural obligation under article 3 of the Convention (prohibition of torture), for the same reasons as those alleged in respect of article 2 (see paragraph 5 of the 11 May Order). 8 By agreement between the parties, the claims considered by the court for the purpose of determining the two preliminary issues have been limited to six illustrative cases, namely the claims brought by the first five original claimants, plus the claim brought by Daoud Mousa. As is apparent from the relevant factual circumstances (as to which, see below), Daoud Mousa's claim differs from those of the first five claimants in that his son's death occurred as a result of the treatment he received after he had been arrested by and whilst he was in the custody of British soldiers. Accordingly, if the HRA and the Convention do apply to the circumstances of this case, Daoud Mousa's claim is one that raises issues under both articles 2 and 3. The parties therefore have sensibly agreed that, when determining the second preliminary issue (see paragraph 2.2 of the 11 May Order, quoted in paragraph 6 above), this Court should also consider whether the Secretary of State has violated the procedural obligation under article 3. General background 9 The current military operations by the United Kingdom in Iraq have been and are being conducted under the codename "Operation Telic" and are operations in which British troops form part of a USA–led Coalition ("the Coalition"). Operation Telic was divided into three phases: (i) phase 1, planning and deployment, (ii) phase 2, major combat operations and (iii) phase 3, stabilisation and reconstruction. The deaths with which this case is concerned all occurred during phase 3. 10 Phase 2 of Operation Telic (major combat operations) began on 20 March 2003. By 5 April 2003, the British had captured Basra and by 9 April 2003, US troops had gained control of Baghdad. Major combat operations in Iraq were declared complete on 1 May 2003. In the post–conflict period that followed, British forces have remained in Iraq, together with other Coalition Forces, operating under a joint command, headed by a US General. 11 It is accepted by the Secretary of State that, between 1 May 2003 and 28 June 2004 ("the relevant period"), in those areas of southern Iraq where British troops exercised sufficient authority, the United Kingdom became an occupying power under the relevant provisions of the Regulations annexed to the 1907 Hague Convention ("the Hague Regulations") and the 1949 Fourth Geneva Convention ("the Fourth Geneva Convention"). As will be explained in greater detail later in this judgment, the Iraqi Interim Government assumed full responsibility and authority for governing Iraq on 28 June 2004. Thereafter, the United Kingdom ceased to be an occupying power and the Hague Regulations and the Fourth Geneva Convention ceased to apply. 12 As already stated, the six deaths with which these proceedings are concerned all occurred in Iraq during the relevant period. It is accepted by the Secretary of State that each of the deaths in question occurred in areas of Iraq (namely the Al Basrah and Maysan provinces) in which British forces were stationed and in respect of which it is also accepted that the United Kingdom was an occupying power at all material times under the relevant provisions of the Hague Regulations and the Fourth Geneva Convention. 13 It is also accepted by the Secretary of State that in the first, second, fourth and fifth cases with which these proceedings are concerned, the deceased were shot and killed by British troops. In the third case, the Secretary of State accepts that the deceased (a bystander) was shot and killed in the course of an exchange of fire between British troops and Iraqi gunmen. However, it is the Secretary of State's position that it is not clear whether the deceased was killed by a shot fired by a British soldier or by an Iraqi gunman. So far as concerns the sixth case (Daoud Mousa), it is accepted by the Secretary of State that the deceased died whilst in the custody of British troops. The post–conflict government and administration of Iraq 14 On 16 April 2003, US General Tommy Franks issued a "Freedom Message", in which he announced the creation of the Coalition Provisional Authority ("the CPA"), a civilian administration that would exercise powers of government temporarily in Iraq. 15 It is not necessary for the purposes of this judgment to give a detailed account of the post–conflict administration of Iraq. However, in the paragraphs that follow, we have sought to summarise the main relevant events during the period from the creation of the CPA until its dissolution on 28 June 2004 and the transfer of authority from the CPA to the sovereign Iraqi Interim Government on the same date. 16 On 8 May 2003, the US and UK permanent representatives to the United Nations in New York (the "UN") wrote to the then president of the Security Council. Their letter stated (inter alia) that, in order to meet the Coalition's objectives and obligations in the post–conflict period in Iraq: "…the United States, United Kingdom and Coalition partners, acting under existing command and control arrangements through the Commander of Coalition Forces, have created the Coalition Provisional Authority (CPA), which includes the Office of Reconstruction and Humanitarian Assistance (ORHA), to exercise powers of government temporarily, and as necessary, especially to provide security, to allow the delivery of humanitarian aid, and to eliminate weapons of mass destruction." The permanent representatives' letter to the Security Council went on to state: "The United States, United Kingdom, and Coalition partners are facilitating the establishment of representative institutions of government, and providing for the responsible administration of the Iraqi financial sector, for the transparent operation and repair of Iraq's infrastructure and natural resources, and for the progressive transfer of administrative responsibilities to such representative institutions of government, as appropriate. Our goal is to transfer responsibility for administration to representative Iraqi authorities as early as possible." 17 On 13 May 2003, the US Secretary for Defence, Donald Rumsfeld, issued a memorandum formally appointing Ambassador Paul Bremer as Administrator of the CPA with responsibility for the temporary governance of Iraq. To that end, the CPA acted as the administrative
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