This comment sets out to discuss the judgment of the Danish High Court (Eastern Division) in what is known as the Iraq or Green Desert Case (B344808J – HBJ). The judgment, delivered in June 2018 and available in Danish only, has received limited attention outside Denmark. It is significant in that it establishes liability for Danish forces for ill-treatment of Iraqi detainees by Iraqi security forces, in circumstances in which Danish forces were found not to have taken part in the arrests and subsequent abuse of detainees, nor to have exercised command over Iraqi forces. Danish forces had only ‘coordinating authority’ which did not permit the issuing of orders to Iraqi forces. Liability was nonetheless established on the basis that, at the time of the decision to take part in this joint military operation (‘Operation Green Desert’) in November 2004, the Ministry of Defence (MoD), the Defence Command or the Danish Battalion should have known that there was ‘a real risk that persons detained during the operation would be subject to inhuman treatment in Iraqi custody during the further investigation’ (810-11). The MoD has appealed the decision, but at the time of writing the Supreme Court was yet to schedule a hearing date.
The claimants had submitted that, in light of Article 3 ECHR, the MoD was obliged to conduct a new independent investigation, but the Court rejected the applicant’s request, arguing that such an investigation was not likely to bring about relevant new information.
Taking into account the nature of the abuses and the fact that these were not perpetrated by Danish forces, the Court found that the compensation should be set at 30,000 DKK (appr. 4,000 EUR) each for 18 of the 23 claimants (5 claimants were not awarded compensation).
Having set out key aspects of the judgment, we examine if the judgment is likely to have ramifications for how Denmark will approach joint military operations in Iraq and elsewhere in the future. We also highlight some parallels with civil proceedings in the UK arising from the Iraq War.
Denmark should have foreseen risk of ill-treatment, but not torture
Operation Green Desert was a military operation planned and undertaken jointly by British, Danish and Iraqi forces in November 2004 near Basra in Southern Iraq. During the operation, Iraqi forces arrested around 30 Iraqis who were later transferred to a military base managed by British forces (‘Shaiba Log Base’) and subsequently to detention facilitates managed by Iraqi authorities (‘Al-Shu’oon prison’). The military operation involved around 1,000 military and security forces, including about 350 Danish soldiers. Despite some evidence pointing to a more active role of Danish forces, the Court found that no Danish soldiers directly assisted with the arrests, though some Danish forces followed the Iraqi security forces into the target area and took part in the evacuation of some houses.
In its extensive 818-page judgment, the High Court assessed testimonies of Iraqi claimants detained during the operation along with medical reports, British detention records and evidence from Danish military officers and soldiers, and others. The Court concluded that 18 of the claimants had been subjected by Iraqi forces to torture by means of electrical shocks and falanga as well as inhuman treatment in the form of beatings while in detention at – and during transport to – Al-Shu’oon prison.
While the claimants had submitted that they were entitled to compensation for torture and inhuman and degrading treatment, the Court established liability only for inhuman treatment in the form of beatings. It is a curious aspect of the judgment that the MoD was held liable for the inhuman treatment of detainees by Iraqi security forces following the operation (when Danish forces were no longer present), but not for the inhuman treatment (beating, kicking, stepping on a detainee) by Iraqi forces which took place during Operation Green Desert, given that evidence presented before the Court – including video recordings and testimonies of some military soldiers and officers – seemed to clearly demonstrate that Danish forces witnessed abuse during the operation and that some reported this up the chain of command.
Relying on Art. 26 of the Danish Law on Liability for Damage (“Erstatningsansvarsloven”) and having regard also to Article 3 of the European Convention on Human Rights (ECHR), the Court found that the MoD, the Defence Command or the Danish Battalion should have known that there was a real risk that those detained during the joint operation would subsequently be subjected to inhuman treatment in Iraqi custody and that there was a causal link between the Danish decision to take part in the joint operation and the inhuman treatment. The Court’s award was limited to compensation for the acts of inhuman treatment since it found that the torture suffered by the 18 successful claimants was not foreseeable by Danish authorities. This was despite some evidence pointing to knowledge among Danish forces about the likelihood of torture, including one military lawyer explaining “sure, we, knew that detainees were tortured” (766-67). The High Court emphasised that the MoD, the Defence Command and the Army’s Operational Command were familiar with reports pointing to detainee abuse in Iraqi facilities, including one specific report covering a detainee inspection on 23 June 2004 which entailed a description of complaints by 11 detainees in the Al Makil prison and which gave rise to further consideration by the MoD. The Court also took note that ‘rough treatment’ of detainees by Iraqi police was discussed at a legal conference prior to Operation Green Desert, involving Danish, British and Italian forces, during which it was observed that abuse of detainees in Iraqi detention facilities was a matter of ‘general concern’ (766-67).
The application of the European Convention on Human Rights
The question of the extra-territorial application of human rights law is touched upon only briefly in the High Court’s judgment. The Danish MoD had argued that Denmark did not exercise jurisdiction over the claimants during Operation Green Desert, or that if it did, this was limited to the period of the Operation itself, when Danish forces were present, and does not extend to any subsequent mistreatment of detainees by Iraqi forces. However, the High Court did not find reasons to consider whether the jurisdictional requirements in Article 1 ECHR were satisfied, as it held that the claim for compensation should be decided according to ordinary provisions in Danish law concerning liability of government authorities, but having regard to Article 3 ECHR and general Danish liability law. It seems likely that this question will be examined in more depth, and in light of ECtHR jurisprudence, when the case comes before the Danish Supreme Court on appeal.
Potential significance for future joint military operations
In the High Court’s view, under Danish law the question of liability should be determined on the basis of a holistic assessment of whether, in the context of the planning and execution of Operation Green Desert, the MoD, subordinate authorities or the battalion can be considered to bear blame, in particular whether they knew or should have known that the execution of the operation entailed a real risk that the detainees would be subject to torture or other forms of ill treatment while in Iraqi custody following the completion of the operation (761-65). The Court highlights in this regard the causal link between Denmark’s decision to take part in – and actual participation in – Operation Green Desert and the subsequent inhuman treatment of persons detained during that operation while subsequently in Iraqi custody, but did not find causality with respect to incidents of torture.
The Court strongly suggested that the lack of concern from the relevant Danish authorities regarding the risk of inhuman treatment was a result of a legal framework which established that detentions undertaken by Iraqi security forces as part of missions carried out in cooperation with Danish forces ‘were seen as beyond Danish responsibility and monitoring’ (810-13). This criticism of the arrangements for handling detainees presents a significant blow to Danish authorities who, following previous incidents of abuse in the context of detention involving Danish forces, appear to have been working on the assumption that the creation of this legal and policy framework would shield them from liability.
The Danish MoD, which as noted above has stated it will appeal the decision, says that this decision will ‘put Denmark in a very difficult situation when sending soldiers abroad’. The Minister argues that ‘when Denmark deploys armed forces abroad, this involves countries characterized by war and conflict, such as Iraq, Afghanistan and Mali. Such countries almost always have a poor human rights record. In some ways, the judgment establishes standards that it is not practically possible to adhere to. This could mean that Denmark cannot contribute to improving security – and hence human rights – in conflict affected countries, which will not benefit anyone’.
Should the Supreme Court confirm that the Danish authorities are liable for the abuse of Iraqi detainees in Iraqi custody, this will surely necessitate reconsidering how Danish forces contribute to joint ‘search and arrest’ operations. In the operation in question, Denmark had sought to avoid responsibility for how detainees are treated by ensuring that Danish forces did not directly take part in arrests, transfer, detention or interrogation. If the decision is upheld, Danish authorities will be forced to more carefully consider how collaborating forces treat detainees, and – if planning to contribute to military operations where arrests will be made – take more active steps to ensure that collaborating forces meet the requisite human rights standards.
Parallels with other ongoing efforts to address mistreatment and torture in Iraq
The Danish High Court is only one of the forums addressing cases of torture and mistreatment of detainees during the Iraq War and its aftermath. The ICC’s Office of the Prosecutor continues its preliminary examination into the conduct of British forces in Iraq, having established a ‘reasonable basis to believe’ that war crimes (including wilful killing/murder and torture and inhuman/cruel treatment) have been committed. In the UK, hundreds of civil claims have been brought, some settled out of court, some already decided, and some still being processed in connection with the mistreatment and in some cases unlawful killing of Iraqis by British forces. Indeed the Danish High Court noted that many of the Iraqi claimants in the case before it had also sued the British MoD for compensation in connection with Operation Green Desert.
The Danish High Court decision has some interesting parallels with the December 2017 UK High Court judgment in Alseran v. MOD. That judgment addressed four lead cases brought forward from over 600 civil claims filed by Iraqis seeking compensation under the Human Rights Act for ill-treatment and unlawful detention at the hands of UK armed forces in Iraq between 2003 and 2009. In that case the British High Court awarded damages to all four claimants for unlawful detention and abuse suffered which included hooding, beating, and being assaulted by means of soldiers running over a detainee’s back.
In both the UK and the Danish proceedings, difficulties were encountered securing visas for Iraqis to testify in court. In the UK visas were eventually issued while in the Danish proceedings 11 of the claimants testified via videolink as the Danish authorities would not grant them entry to Denmark. Both courts ultimately issued lengthy judgments which go through the available evidence in great detail. In both cases the respective MoD raised questions about the credibility of the witnesses; in both instances the judges approached the question in a nuanced way, methodically assessing the credibility of individual claimants as well as the various claims made by each claimant along with expert evidence of doctors and psychologists/psychiatrists. One major difference is apparent in the level of analysis of applicable international legal frameworks, which are extensively examined by the UK High Court and almost entirely absent in the Danish judgment, though as mentioned above this may change on appeal.
Broader significance of the High Court decision
The decision by the Danish High Court underlines that foreign forces assisting or operating in collaboration with local security forces cannot necessarily shield themselves from liability for detainee abuse which is foreseeable by pointing to formal arrangements under which the foreign forces do not directly take part in arrests, transfers or interrogations. From the perspective of preventing ill-treatment of detainees, this is a laudable development, particularly in a situation as in Denmark where efforts to assess detainee treatment – and other aspects of the Iraq War – through public inquiries have been repeatedly stymied at a political level.