The Alseran case one year on: International human rights law, international humanitarian law, and future military operations

I recently had the pleasure to organise, and take part in, a fascinating seminar to mark the first anniversary of the judgment in Alseran and Others v. Ministry of Defence. The event was co-organised by Leigh Day and the Bonavero Institute for Human Rights, at Oxford University, and was held at Mansfield College, Oxford, on Friday 25 January 2019.

The entire conference is now available as a podcast on iTunes and on the Oxford University podcast webpage.

The day-long seminar brought together scholars and practitioners in international human rights law and international humanitarian law to discuss the implications of recent case law on British military detention in Iraq. 

The first panel, which aimed to place the Alseran case in context and was chaired by Dr Liora Lazarus (Head of Research, Bonavero Institute for Human Rights), opened with a fascinating contribution from the Reverend Nicholas Mercer (formerly of Army Legal Services), who shared his experience as a ‘battlefield lawyer’ in Iraq at the outset of the war and his thoughts on the judgment in Alseran and Ors v MoD. As Command Legal Adviser for HQ 1st (UK) Armoured Division in Iraq, Revd Mercer recounted the immeasurable difficulties faced by the British Army as an Army of Occupation engaged in an asymmetrical warfare, with very little preparation for it, and the resistance he encountered from MoD lawyers at Permanent Joint Headquarters (PJHQ) over the applicability of the European Convention on Human Rights (ECHR) during the occupation of southern Iraq and the establishment of a legally-compliant system of detention reviews for all Iraqi detainees captured by UK armed forces. 

As the lawyer who fought, and was responsible, for the creation of Article 5 tribunals in Iraq, Revd Mercer expressed strong reservations about Leggatt J’s findings that the MoD operated a flawed system of detention review based on wrong understanding of Geneva Conventions. On the other hand, Revd Mercer, who witnessed prisoner abuse first-hand, applauded Leggatt J’s strong findings on mistreatment.

My own contribution to the panel was a detailed overview and procedural history of the private law litigation pursued by Leigh Day against the MoD, from the early cases in 2006 onwards, when Leigh Day was instructed to bring civil claims on behalf of the family of Baha Mousa and the victims of the ‘Camp Breadbasket’ incident, to the wider Iraqi Civilian Litigation (ICL), which culminated in December 2017 with the hand-down of the judgment in Alseran and Ors v MoD. 

With reference to the changes in the political climate and the hostile environment in which these claims have been litigated, this presentation welcomed Mr Justice Leggatt’s carefully reasoned ruling, which not only found that each of the four test claimants had suffered inhumane and degrading treatment and unlawful detention in breach of Articles 3 and 5 ECHR, while in British military custody in Iraq in 2003 and 2007, but that the MOD’s own policies and procedures about the treatment of detainees and POWs violated the Geneva Conventions during the Iraq conflict.

These two practice-focussed presentations were rounded-off by a captivating presentation by Professor Dapo Akande (Oxford Institute for Ethics, Law and Armed Conflict), who stood in at the last minute for Dr Lawrence Hill-Cawthorne, and pondered upon the extra-territorial application of human rights law in armed conflict, and the relationship between Human Rights Law (‘HRL’) and International Humanitarian Law (IHL), in light of the recent case-law (in particular Hassan v UK, in the European Court, and Al-Waheed/Mohammed (No.2) v MoD in the Supreme Court). 

The second panel, which was chaired by Professor Dapo Akande, comprised of two thought-provoking studies into recent investigations into abuse allegation and prevention efforts. Dr Thomas Obel Hansen (University of Ulster) spoke about his recent co-authored discussion paper (with Dr Carla Ferstman and Dr Noora Arajarvi) ‘The UK in Iraq: Efforts and Prospects for Accountability for International Crimes Allegations: A Discussion Paper’ , which focussed on the adequacy (or lack thereof) of the official response to allegations of abuse perpetrated by the UK military in Iraq, while Dr Elizabeth Stubbins Bates (Merton College, Oxford), who co-organised this seminar, presented her research findings on the British Army’s training in international humanitarian law. 

Through a meticulous archival and documentary analysis of British army training materials in operational law, Dr Stubbins Bates noted recurring patterns of violations and sought to answer a number of questions related to the chronology, content and  context of the British Army’s training in IHL, including how the history of British Army training (or its absence/perceived inadequacy) correlated with the patterns of violations she had identified.

Finally, panellists from the first panel were invited back to join the panel for a concluding 20-minute discussion about the legacy of the Alseran case, and predictions about what the future might hold for the UK’s implementation of IHL and HRL in future operations.