Soldiers of fortunes

What kind of madness is this?” demanded one suitably enraged columnist in The Sun this month, following the recent success of two Kosovan Albanians in suing the Ministry of Defence (MoD).

Certainly, the story had all the required ingredients to make for tabloid indignation. It featured two asylum seekers availing themselves of medical attention from the NHS, then suing our brave lads keeping the peace back in their home country – and all at the taxpayers’ expense.

The case of the two cousins, Mohamet and Skender Bici, is believed to be the first successful action arising from injuries caused by UK peacekeeping forces in a war zone. Given the situation in Iraq, which appears to be getting ever worse, this “lunatic judgment”, as The Sun put it, might have a significant impact for UK forces in the Gulf. “If this is the way ahead, we’re all going to be going to war with a solicitor at our side,” one paratroop regiment source told the Daily Mail. “Britain either wants soldiers to do their job or it doesn’t.”

Unsurprisingly, it was a measured judgment from Mr Justice Elias this month that paid tribute to a British Army that could “justifiably be proud of the operation it carried out in Kosovo”. But soldiers are human, the judge continued, and from time to time mistakes are inevitable. “The Queen’s uniform is not a licence to commit wrong-doing, and it has never been suggested that it should be,” he said. “The Army should be held accountable for such shortcomings, even where the victims are from the very community which has benefited so much from the Army’s assistance. A proper system of justice requires no less.” He has granted the MoD permission to appeal.

Exceptional circumstances

The action concerned the two cousins of a Kosovo Liberation Army soldier, Fahri Bici, who was shot dead by three UK soldiers from the 1st Battalion Parachute Regiment (part of the UN-mandated multinational force), after he had fired a celebratory round on his AK-47 during a demonstration in Pristina. Fahri and Mohamet were travelling on the roof of a car and Skender was in the back seat when the paras ordered the car to stop. They opened fire when it failed to do so. Fahri was killed, Mohamet was shot in the jaw, leaving him with long-term problems eating and drinking, as well as continuing pain. Skender suffered severe psychological trauma.

Mr Justice Elias rejected claims by three paras that they were firing in self-defence. Instead, he reached the “clear conclusion” that they were not under threat and “there were no reasonable grounds for them to believe they were”. He dismissed suggestions by the claimants that the paratroopers had been reckless in firing at the car in which the plaintiffs were travelling, but concluded that they were in breach of their duty of care. The judge also concluded that the soldiers were not being threatened with being shot when they fired their guns. “They failed to take reasonable care in that they deliberately fired when there was no justification in law for so doing,” he added. Crucially, the judge argued that if the soldiers were on peacekeeping duties, and not acting in self-defence, then the defence of ‘combat immunity’ could not succeed.

Jane Horton, a partner at Irwin Mitchell who represented the two Kosovans, was keen to play down the impact of the ruling. “This does not set a precedent for further claims against the MoD, as these claims arise in exceptional circumstances,” she told the press.

However, Phil Shiner, founder of the Birmingham-based Public Interest Lawyers and campaigning group PeaceRights, believes this is a “rather conservative” analysis of her case. “I don’t really understand that view, because it’s manifestly obvious to me why it’s going to appeal.” Shiner, who was also CND’s lawyer for its high-profile challenge as to the legality of the war on Iraq, has “at least” 12 Iraqi clients that he is hoping to represent in similar claims.

Horton says: “My view is that is certainly isn’t ‘a floodgates case’, simply because the ability to make a claim in these circumstances has already existed.” One of the unique features of the case is that her clients ended up in the UK because their injuries were so severe.

“I don’t anticipate that I’m going to have my door beaten down by foreign nationals in similar circumstances,” she adds.

Shiner has been in contact with his prospective Iraqi clients through an agent he has employed in Iraq. He is hoping to set up a more formal relationship with a lawyer at the Basra bar. All the cases concern civilians injured in post-war Iraq by coalition forces. “Many of them were in their homes; for example, one was having dinner with his family when soldiers burst in through the door and shot him dead; another was driving a car away from a checkpoint and the bullet holes were found in the back of the car,” he says. “All of them were just going about their lawful business. The best you can say is that there have been some terrible mistakes, but you couldn’t argue that these people were in any way a threat. There’s no question of self-defence.”

Public Interest Lawyers is adopting what Shiner describes as a twin-track approach. First of all, his team is seeking a challenge to establish whether the European Convention on Human Rights (ECHR) applies to armed forces in occupation. Rabinder Singh QC of Matrix Chambers and Michael Fordham and Shaheed Fatimer, both of Blackstone Chambers, are looking at that issue. Shiner flags up the controversial Bankovic case in the European Court of Human Rights, which concerned Vlastimir and Borka Bankovic, who had lost their daughter during NATO’s bombing of Serbian Radio-Television in April 1999; in total, 16 people were killed. Their case was against the 17 member states of NATO, claiming that the bombing had violated the ECHR, in particular their rights to life and freedom of expression. The court dismissed the case on the grounds of lack of jurisdiction. “We ought to distinguish the situation in the Bankovic case and the situation on the ground in Iraq,” argues Shiner. “It’s not clear whether the Human Rights Act applies to UK armed forces or the troops of any other member states.”

The second aspect of Public Interest Lawyers’ approach is pursuing individual personal injury claims against the MoD. John Hendy QC and Philip Mead, both of Old Square Chambers, are looking at the possibility of bringing compensation claims similar to the Kosovan case.

A definition stretched

Lawyers who specialise in claims against the MoD are split over the merits and potential impact of this month’s ruling. Sole practitioner Hilary Meredith welcomes the ruling as an opportunity for the appeal judges to revisit the doctrine of combat immunity. When she was managing partner of Manchester firm Donns, she advised the first six soldiers to return from the first Gulf War claiming Gulf War Syndrome.

Last May the potential claims of some 2,000 former veterans for psychiatric injuries resulting from the stress and trauma of combat were brought to an abrupt end on the grounds of combat immunity.

Mr Justice Owen, in Bell & Ors v Ministry of Defence (2003), ruled that the immunity extended to all active operations against the enemy in which personnel were exposed to attack or a threat of attack. Controversially, that cover went so far as to include planning and preparation as well as peacekeeping operations.

“That decision needs to be challenged and challenged sensibly,” Meredith argues. “The definition of combat immunity has been stretched too wide now. I don’t think that it’s what the Government had in mind when it decided to repeal Section 10 of the Crown Proceedings Act 1947 in 1987 [which lifted the Army’s total immunity against such claims].”

Certainly, this month’s ruling breaks with the thrust of the Owen judgment. The ‘labelling of the soldiers’ role on the night in question, as a ‘peacekeeping’ operation, did not of itself determine matters, Mr Justice Elias pointed out. “But any such threat must in my view be imminent and serious,” he continued. “Indeed, even where they are under some sort of attack, such as where there is a civilian riot, that would not mean that the doctrine of combat immunity would necessarily apply.”

Meredith also points to the landmark Court of Appeal ruling in Mulcahy v Ministry of Defence (1996), which concerned a serving soldier in Saudi Arabia during the Gulf War. He was injured when he was part of a team managing a Howitzer, which was firing live rounds into Iraq, and was standing in front of the gun when it was negligently fired by the gun commander. “Quite rightly, the court held that in battle conditions you can’t pursue your captain for telling soldiers to fire,” Meredith reckons. “That has to be common sense.” In that case, the appeal judges talked of ‘battle immunity’; however, last year’s ruling was concerned with ‘combat immunity’, a change in terminology that seemed to reflect a broadening of the protection afforded to the MoD. “At the end of the day, the whole idea behind the repeal of Section 10 was to put members of the armed forces in the same position as civilians; and so if civilians have an accident at work they can sue their employers and if a military person has an accident they can sue their bosses,” she says.

The Clegg case

Sole practitioner John MacKenzie mainly acts on behalf of soldiers pursuing claims against the MoD. “If the claim is upheld by the Court of Appeal and damages are paid out, it would be a major nail in the coffin of peacekeeping operations altogether,” he reckons. However, MacKenzie believes it would be “inconceivable” that the ruling would be left standing by the appeal judges. “The army would have to have a large legal staff on the ground trying to work out what happened in each incident, because they’re never going to know what action would lead to a claim some time down the line,” he adds.

Some commentators have been quick to draw parallels with the infamous case of another para, Lee Clegg, who was convicted in 1993 of murdering Karen Reilly and wounding Martin Peake, who had driven through an army checkpoint in West Belfast. He was cleared of shooting the two teenage joyriders in 2000 after spending two years in jail.

According to his legal adviser Simon McKay, the comparison does not bear much analysis. In any event, the doctrine of combat immunity was not relevant. Since that case, the solicitor has been advising the Army on its use of lethal weapons in Northern Ireland and the law of self-defence and the rules of engagement. He is wary about the benefit of hindsight afforded by bringing compensation claims against soldiers many years down the line. “The problem with the Clegg case was that the standards against which his conduct were tested were standards that existed eight to 10 years after the incident and when there was a peace deal,” he says. “What’s pernicious about this kind of case is that, if you’re going to require these individuals to do something, they really need to do that in an informed sense. You have to ensure that you give them protection against the course of history.”

As for the advice that soldiers receive on interpreting the rules of engagement in volatile situations, McKay believes that the MoD “really needs to do a lot more work than present conditions allow”.

He adds: “Soldiers receive cursory training and it just doesn’t properly inform them about the risks.”

Rules of engagement

So where does this month’s ruling leave the doctrine of combat immunity? “‘Combat immunity’ generally applies when there’s a clear conflict and then, under the terms of the rules of engagement, if innocent bystanders are caught up in an exchange, the army is protected from any legal suit. That has to be right. Unfortunately bad things happen in war,” says Horton. “But the situation here was different, as there had been a conflict but it was over, despite tensions and pockets of ongoing violence.”

Would post-war Iraq represent a similar situation? On a “technical basis” there is no war at present, she replies. “But there are serious acts of aggression and tensions that are ongoing, and you’d have to look at the particular facts of each case that arose,” she says. “But also, the terms of engagement that soldiers operate under in any peacekeeping or war time change according to what soldiers are expected to face.”

Does she feel that the success of her clients and other foreign civilians undermine the work of our forces abroad? No, she replies. She says her clients have “always maintained that work that the British did was exemplary and, in fact, they were perceived by them as heroes.

“But if we have a situation where a peacekeeping force has the right to shoot in any circumstances, that undermines the trust and professionalism we have in our soldiers,” she continues. “You can’t have carte blanche to shoot innocent bystanders.”

What next for ‘combat immunity’?
From the ruling of Mr Justice Elias in Mohamet Bici and Skender Bici v MoD:
“I confess that I have considerable difficulty in seeing how the doctrine has any application at all in this case. It is relied upon when a person is injured or their property is damaged or destroyed in circumstances where they are the ‘innocent’ victims of action which is taken out of pressing necessity in the wider public interest arising out of combat. …It has never been suggested by the soldiers or anyone else that they fired at him because of wider concerns which necessitated such draconian measures in the public interest, nor even that any such interest arose in the course of combat, however widely that concept is construed. …Moreover, we are in my judgement very far from the kind of situation where the courts would permit the executive by reason of state necessity to act free from any legal fetters for negligent or intentional acts.”