United Kingdom of Great Britain and Northern Ireland
Practice Relating to Rule 150. Reparation
The UK Military Manual (1958), in a chapter dealing with “Means of securing legitimate warfare”, quotes Article 3 of the 1907 Hague Convention (IV). In addition to other means of securing legitimate warfare, the manual lists “compensation” and refers to Article 3 of the 1907 Hague Convention (IV).
The UK LOAC Manual (2004) states:
Enforcement of the law of armed conflict can involve a wide variety of measures. “Enforcement” is taken here to mean action to ensure observance of the law and also action that may be taken following alleged or actual violations. Action aimed at effective enforcement of the law can include, but is not limited to:
j. Demands for compensation in respect of violations.
The manual further states:
It is a principle of international law that a state responsible for an internationally wrongful act is obliged to make full reparation for the injury caused by that act. This principle extends to the law of armed conflict in that a state is responsible for violations of the law committed by persons forming part of its armed forces and, if the case demands, is liable to pay compensation.
In 2004, in the Bici case, the England and Wales High Court of Justice stated:
1. At about midnight on July 2nd 1999, three British soldiers involved in a United Nations peacekeeping operation in Kosovo shot and killed two men, Fahri Bici and Avni Dundi, and injured another two. The men, all Kosovar Albanians, were travelling together in a car in the city of Pristina. The shooting took place near a building known as Building 42. The first claimant in this action, Mohamet Bici, was injured by a bullet which struck him in the face. It entered his mouth and exited the lower left side of his jaw. Apart from the not inconsiderable pain, it has also caused longer term problems with eating and speaking. The second claimant, his cousin Skender Bici, did not suffer any direct physical injury but alleges that he has suffered psychiatric illness as a consequence of being in the car, both as a result of being put in personal fear, and from witnessing the incident. Both claimants sue for damages both in negligence and trespass. The soldiers say that they were acting in self-defence being in fear of their own lives.
The rules of engagement.
6. Each of the British soldiers stationed in Kosovo was issued with a document setting out individual guidance on the use of force. It permits the minimum force necessary to be used in self-defence. It provides that if the situation permits a challenge should be issued, such as “NATO! STOP OR I WILL FIRE”, and that if there is a failure to stop a warning shot may be fired. Paragraph 11 provides, so far as is material:
“You may use necessary minimum force, including opening fire, against any individual whom you believe is about to commit or is committing an act which endangers life, and there is no other way to prevent such an act. For example, you may open fire against an individual who:
a. Fires or aims a weapon at you or any person in your presence.
Paragraph 13 states that “if you have to open fire, you must fire only aimed shots, and fire no more rounds than are necessary, and stop firing as soon as the situation permits.”
The background to the incident.
14. The background to the events in question is uncontroversial. On 2nd July 1999, crowds gathered in the centre of Pristina to celebrate the city’s liberation …
24. The claimants were two of a group of men who were travelling in a white Opel estate. They say they were simply participating in the celebrations … The car was driven by Nasser Bici. In the front passenger seat was Driton Bici; Avni Dudi, was a rear seat passenger as initially at least was second claimant Skender Bici. There were two persons who were on the roof of the car; one was Mohamet Bici who was at the front and behind him was Fahri Bici. As virtually all the evidence indicates, Fahri Bici had an AK47, (a Kalashnikov) which is an automatic rifle …
26. At some time … Fahri Bici fired his AK47 into the air …
27. The bare bones of the matter can be described as follows. As the car was being driven away from building 42, three soldiers emerged from the undergrowth outside building 42 and fired shots towards the vehicle. The effect was devastating. Fahri Bici was killed by a single bullet. It entered his back 8 centimetres to the right of the mid line and exited from his chest. Avni Dundi, was also killed. Isak Berisha, who had so recently joined the car, and Mohamet Bici, the first claimant, were wounded. The uncontroverted evidence was that the car began to accelerate away from the soldiers as the firing was taking place, before it came to a halt at a distance of some metres from its position when the first gun was fired.
Were the soldiers acting in self-defence?
42. One of the defences advanced by the soldiers in this case is that they were acting in self-defence. As far as the criminal law is concerned, it is a defence if they had an honest belief that they were going to be attacked and reacted with proportionate force: see R v Palmer (1971) 55 Cr App R 223 (P.C.). In civil law, however, the belief must be both honest and reasonable. The defence is available both to meet a claim in negligence and in trespass (whether assault or battery), but the manner in which it does so is slightly different in each case. In negligence, the claim asserts that the defendant owed a duty of care and breached that duty by unreasonable conduct causing foreseeable loss to the claimant. Accordingly, if the defendant’s conduct is reasonable, there is no breach. In trespass, any unlawful interference with the bodily integrity of the claimant will not be unlawful if it is justified, and it will be justified if the defendant can establish that the claimant’s conduct was such that the defendant reasonably apprehended that he would be imminently attacked and used reasonable force to protect himself. In this case the claimants properly concede that if the soldiers did reasonably believe that Fahri Bici was about to shoot at them, then they were entitled to shoot first; such a response would be reasonable and proportionate.
44. In determining this question of whether the soldiers had a reasonable apprehension that they might be shot, I bear in mind two matters. First, as Mr Rose [appearing as counsel for the claimants] accepts, in circumstances where the failure to establish self-defence suggests that the soldiers may well have committed serious criminal offences, the evidence of wrongdoing must be strong. The well-known observations of Lord Nicholls in re H (Minors)  A.C. 563 at 586 are pertinent:
“When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is less likely than negligence. Deliberate physical injury is less likely than accidental physical injury … Built into the preponderance of the probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.”
45. That principle is applicable here, albeit that it has to be applied where the burden is on the defence. It is not readily to be assumed that these soldiers would without reasonable cause have fired their guns at Fahri Bici.
46. Second, I also bear in mind certain observations of Lord Diplock in Attorney General for Northern Ireland’s’ Reference no 1 of 1975  A.C.105 at 138, when he observed that often a soldier has to act intuitively, and that in assessing his conduct and judging the action of the reasonable soldier, it is important to recognise that his action “is not undertaken in the calm analytical atmosphere of the court room after counsel with the benefit of hindsight have expounded at length the reasons for and against the kind and degree of force that was used by the accused, but in the brief second or two which the accused had to decide whether to shoot or not and under all the stresses to which he was exposed.”. These observations were made in the context of a criminal case, but in my view they apply no less forcefully when considering liability in civil law.
47. Even bearing these matters very fully in mind, I have reached the clear conclusion on the evidence before me that the soldiers were not being threatened with being shot by Fahri Bici when they fired their guns, and there were no reasonable grounds for them to believe that they were …
48. It is not necessary for me to assess whether in the heat of the moment the soldiers could conceivably for some reason have been acting under the honest but mistaken impression that Fahri Bici was threatening to shoot them. It is enough for the purposes of civil liability that I reach the clear conclusion that any such belief was not reasonable. Indeed, the alternative view is unsupported by any reliable evidence.
Were the soldiers reckless?
49. Mr Rose asked the court to go further. He submitted that not only were the soldiers not acting in self-defence, but that the evidence supported the inference that they were deliberately firing to disable the car, and were thereby acting in a wholly reckless manner. They must have been aware that there were persons in the car, and they were acting with no thought for their safety. He suggests that they may have been irritated by the fact that Fahri Bici refused, as they saw it, to hand over his weapon, and that they lost control in the face of this provocative act …
58. Bearing in mind the gravity of these allegations, and the matters I have referred to above, I have concluded, not without hesitation, that the claimants have not shown that the soldiers were reckless in the manner alleged. I have regard to the fact that it would be surprising if they lost their discipline in such a fundamental way, and there is no obvious reason why they should have done so.
The legal issues.
59. The claimants allege both negligence and trespass. The arguments based on trespass are raised in unusual circumstances since the claimants accept that the soldiers did not intend to interfere with their personal security. In response to these claims, the defendants raise two broad defences, in addition to the issue of self-defence, which I have already analysed. The first is what is termed “combat immunity”. The defendants submit not only that this defence is applicable, but also that it is a complete answer to any tortuous claim which is advanced, however formulated. The second defence relates solely to the claim in negligence. It is that in the circumstances the soldiers did not owe the claimants a duty of care at all, and accordingly cannot be liable in negligence …
83. As I have indicated, apart from self-defence these are combat immunity and the lack of any duty of care.
84. The defence of combat immunity is not strictly a defence at all, in the sense of rendering lawful what is alleged to be unlawful. Rather, where the doctrine applies its effect is to remove the jurisdiction of the court to decide certain kinds of dispute; they are non-justiciable. Where the doctrine applies the court is being deprived of its historic and jealously guarded role of determining a dispute where a citizen claims that his rights have been unlawfully infringed by an act of the executive.
85. Before considering the scope of this doctrine, it helpful to bear in mind certain fundamental principles of constitutional law. The starting point is the famous case of Entick v Carrington (1765) 19 ST.TR.1030. The King’s messengers were sued in trespass for breaking into the plaintiff’s house and seizing his papers. They pleaded that they were acting under a warrant of the Secretary of State, but the defence failed. Lord Camden C. J. observed:
“ …with respect to the argument of State necessity, or a distinction that has been aimed at between state offences and others, the common law does not understand that kind of reasoning, nor do our books take notice of any such distinctions.”
86. This is a ringing endorsement of the rule of law and of the system of democratic government. The executive cannot simply assert interests of state or the public interest and rely upon that as a justification for the commission of wrongs.
87. However, whilst that is the general position, there are certain circumstances where the courts will decline to determine the claims brought before them.
88. One such situation may arise where the interests of foreign nationals are concerned. In a claim for compensation against the state, the state can in an appropriate case rely on the doctrine of Act of State. The concept is a highly ambiguous one and the term is used in a number of quite discrete ways. However, in the context where claims are brought by foreign nationals alleging infringement of their legal rights, the effect of a successful claim of Act of State is to remove the jurisdiction of the court to hear the dispute. The way in which the government exercises its prerogatives in relation to foreign affairs and in its relations with foreign states does not give rise to rights which are cognisable by the domestic courts. As Lord Wilberforce commented in Nissan v The Attorney General  AC 179 at 231(f):
“As regard such acts it is certainly the law that the injured person if an alien cannot sue in an British Court and can only have resort to diplomatic protest. How far this rule goes and how far it prevents resort to the courts by British subjects is not a matter on which clear authority exists.”
89. In this case the defendants have expressly disavowed any reliance upon this doctrine. It has not been contended that the acts of the soldiers were either authorised or ratified by the Crown.
90. The concept of combat immunity, which is relied upon, serves a quite different purpose. Unlike Act of State, it can be relied upon even against citizens of the United Kingdom and even where torts are committed in the United Kingdom. It is closely and imprecisely related to (and in some cases perhaps identical with) a separate concept of necessity. This is exceptionally a defence to the Government and indeed individuals, who take action in the course of actual or imminent armed conflict and cause damage to property or injury (including possibly death) to fellow soldiers or civilians. Unlike Act of State, the doctrine has nothing to do with a concern about undermining the acts of the executive in relation to foreign affairs. It is essentially an exception to the Entick v Carrington principle and as such should be narrowly construed. The courts recognise that very exceptionally the basic liberties of the citizen may have to give way to vital interests of state. When arms clash or attack is imminent, the citizen may be an unfortunate victim of the conflict, whether as a result of enemy action or sometimes friendly fire or precautionary actions. In relying upon the doctrine in this case, the defendants have to demonstrate that the defence would be available in similar circumstances if the events had taken place on British soil in relation to a British citizen. Save where Act of State is applicable, no special principles apply because the injured claimant is a citizen of a foreign state.
91. There are a few cases which testify to this principle of combat immunity. It seems that the concept was first described in those terms in Shaw Savill and Albion Company Ltd v The Commonwealth  HCA40; (1940) 66 CLR 344, a decision of the High Court of Australia. The plaintiffs brought a claim in damages for negligence. They owned a ship “The Coptic” which was in a collision with His Majesties Australian Ship “Adelaide”. The plaintiff alleged that the collision resulted from the negligence of the defendant’s officers … The defence was that, at the relevant time; the Adelaide was part of the naval forces of Australia and was engaged in active naval operations against the enemy.
92. The High Court of Australia accepted that in principle such a defence was open to the state. Dixon J, in the course of his judgment, said this:
“It could hardly be maintained that during an actual engagement with the enemy or a pursuit of any of his ships the navigating officer of a King’s ship of war was under a common-law duty of care to avoid harm to such non-combatant ships as might appear in the theatre of operations. It cannot be enough to say that the conflict or pursuit is a circumstance affecting the reasonableness of the officer’s conduct as a discharge of the duty of care, though the duty itself persists. To adopt such a view would mean that whether the combat be by sea, land or air our men go into action accompanied by the law of civil negligence, warning them to be mindful of the person and property of civilians. It would mean that the Courts could be called upon to day whether the soldier on the field of battle or the sailor fighting on his ship might reasonably have been more careful to avoid causing civil loss or damage. No one can imagine a court undertaking the trial of such an issue, either during or after a war. To concede that any civil liability can rest upon a member of the armed forces for supposedly negligent acts or omissions in the course of an actual engagement with the enemy is opposed alike to reason and to policy. But the principle cannot be limited to the presence of the enemy or to occasions when contact with the enemy has been established. Warfare perhaps never did admit of such a distinction, but now it would be quite absurd. The development of the speed of ships and the range of guns were enough to show it to be an impracticable refinement, but it has been put out of question by the bomber, the submarine and the floating mine. The principle must extend to all active operations against the enemy. It must cover attack and resistance, advance and retreat, pursuit and avoidance, reconnaissance and engagement. But the real distinction does exist between active operations against the enemy and other activities of the combatant services in time of war.”
93. But he made it plain that the basis of the immunity is wider than simply relieving soldiers from any duty of care that might otherwise exist. The judge said this:
“There is no authority dealing with civil liability for negligence on the part of the King’s forces when in action, but the law has always recognised the rights of property and of person must give way to the necessities of the defence of the realm …
The uniform tendency of the law has been to concede to the armed forces complete legal freedom of action in the field, that is to say in the course of active operations against the enemy, so that the application of private law by the ordinary courts may end where the active use of arms begins. Consistently with this tendency the civil law of negligence cannot attach to active naval operations against the enemy.”
94. A similar principle but relating to damage to property and not in terms described as combat immunity was adopted by the House of Lords in Burma Oil Company Ltd v Lord Advocate  AC 75. In that case the General Officer Commanding in Burma during the war of 1939 to 1945 ordered certain oil installations of the appellant companies near Rangoon to be destroyed. The reason was that the Japanese Army was advancing and the Government wished to deny resources to the enemy. The destruction was carried out on the day before the Japanese occupied Rangoon. The question was, whether compensation was payable for this destruction. Their Lordships, by majority of three to two (Lords Reid, Pearce and Upjohn, Viscount Radcliffe and Lord Hodson dissenting), held that the Government were exercising a prerogative power which required them to pay compensation. However, their Lordships distinguished this situation from one where property was damaged or destroyed during the course of battle. Lord Reid after quoting many cases and the views of learned jurists, concluded as follows (p. 110):
“In my judgment, those authorities and others quoted in their opinions afford ample justification for the decision of the First Division with regard to the general rule, and no contrary Scots authority has been cited. This case therefore turns, in my view, on the extent of the exception of what has been called battle damage.
Such damage must include both accidental and deliberate damage done in the course of fighting operations. It cannot matter whether the damage was unintentional or done by our artillery or aircraft to dislodge the enemy or by the enemy to dislodge our troops. And the same must apply to destruction of a building or a bridge before the enemy actually capture it. Moreover, it would be absurd if the right to compensation for such a building or bridge depended on how near the enemy were when it was destroyed. But I would think that Vattel is right in contrasting acts done deliberately (librement et par precaution) with damage caused by inevitable necessity (par une necessite inevitable). His examples show that he means something dictated by the disposition of the opposing forces. It may become necessary during the war to have new airfields or training grounds and the necessity may be inevitable, but that kind of thing would not come within the exception as stated by any of the commentators, inevitably necessary because there is really no choice: for example, there may be only one factory in the country or one site available for a particular purpose.”
100. In my judgment, these authorities suggest that the exclusion of liability for the intentional infliction of damage to property or person will, as one might expect, be narrower than the exclusion of liability for negligence. As Burma Oil makes plain, there can be no deliberate interference with property rights without payment of damages or compensation save where it is the result of inevitable necessity or what Lord Reid termed “something dictated by the disposition of the opposing forces.” That of course was in the context of interfering with property rights but the right to interfere with personal integrity can hardly be any less rigorous. Indeed, one might expect that the courts would require a high degree of necessity even in war time for the Government to be able to claim combat immunity in relation to the deliberate infliction of harm on one of its citizens.
101. 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 is not the conduct of the victim which justifies immunity from suit but rather a very pressing public interest. It is curious to pray the concept in aid where the claimants themselves have been acting unlawfully. The justification for the defendant in those circumstances, if there be any justification, is that steps are required to restrain or prevent the wrongful conduct. That is precisely the situation here. The justification advanced for firing at Fahri Bici was the soldiers’ self-protection, namely that they were about to be shot by him, or at least that this was their reasonable belief. 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 out in the course of combat, however widely that concept is construed. For example, it has not been suggested that there was a real fear that the men in the car were part of a wider group intent on attacking building 42 or anything of that nature. Whatever initial concerns there may have been on that score, they no longer figured in the minds of the soldiers when the car was being driven away at increasing speed from that building. If self-defence fails, as I have held that it does, then I do not see how combat immunity is engaged.
102. Moreover, we are in my judgment 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. Even focussing on the soldier’s activities on the night in question, it is plain that they were carrying out essentially a policing and peacekeeping function. I accept that this labelling of their role does not of itself determine matters since even when carrying out those activities they could still be engaged in an attack or threat of attack, as Mr Justice Owen recognised in Bell. But any such threat must in my view be imminent and serious. 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. There are numerous cases of riot where the authorities have been held liable in tort, the Livingstone case itself being but one example. In my view it requires a significant degree of necessity before the doctrine can trump the fundamental protection afforded by Entick v Carrington, and I do not consider that the situation comes near to being such a case. It was at most an incident of disorder in the streets. The soldiers did not claim that they were in a combat situation, and in my judgment they plainly were not.
Was there a duty of care?
103. I turn to consider whether the circumstances were such as to negate the duty of care …
104. … Troops frequently have to carry out difficult and sensitive peace keeping functions, such as in Northern Ireland, whilst still being subject to common law duties of care. The difficulties of their task are reflected in the standard of the duty rather than by denying its applicability. In Attorney General for Northern Ireland’s Reference no 1  A.C.105, 137 a British soldier had shot and killed an unarmed man who had run away when challenged, in the honest and reasonable, although mistaken, belief that he was a terrorist. The soldier was searching for terrorists at the time. The judge held that he had no intention to kill or seriously injure and that the killing was justifiable homicide. The reference from the Attorney General raised two questions, first whether the Crown had established in the circumstances that the act of the constituted unreasonable force; and second, if so, whether this constituted the crime of murder. The House of Lords held that these were matters of fact rather than law. In the course of giving his judgment, Lord Diplock said this (p.137):
“There is little authority in English law concerning the rights and duties of a member of the armed forces of the Crown when acting in aid of the civil power, and what little authority there is relates almost entirely to the duties of soldiers when troops are called upon to assist in controlling a riotous assembly. Where used for such temporary purposes, it may not be inaccurate to describe the legal rights and duties of a soldier as being no more than those of an ordinary citizen in uniform.”
The basic position therefore is that soldiers owe the same duties as ordinary citizens, and the latter clearly owe a duty of care in the circumstances.
105. I am confirmed in my view that the duty of care is in principle applicable to peace keeping and policing functions of this kind by the fact that soldiers peace keeping in Northern Ireland have from time to time faced negligence claims arising from incidents when they have been required to take aggressive action to preserve the peace in the face of a disorderly and hostile crowd. Again Livingstone is but one example, although the action in negligence failed in that case. A fortiori in my view these soldiers were subject to a duty when, as I have found, there was no relevant aggressive action directed against the authorities at all.
106. It follows that in my view the defences on which the defendant seeks to rely are not available to them.
107. Finally I turn to consider the issue of contributory fault. Mr Miller contends that the claimants are contributorily negligent. He submits that by agreeing to travel in a vehicle with someone who, to their knowledge, was firing a gun in a potentially provocative manner, they were acting recklessly and contributing to their own injury. Moreover, he submits, and I accept, that they must have known that there was an embargo on the use of guns.
108. It is well established that in assessing whether or not to apportion liability under the Law Reform (Contributory Negligence) Act 1945 it is necessary to have regard both to causation and to blameworthiness.
109. In my judgment it cannot sensibly be said that the claimants by their conduct shared in the responsibility for their injuries. Any imprudence on their part was dwarfed by the acts of the soldiers. The latter deliberately and without justification caused these injuries, and in my view it would not be just or equitable to reduce the damages on grounds of contributory fault.
112. In my judgment the claimants succeed in establishing that the defendant is liable to them in negligence and also, in the case of Mohamet Bici, in trespass to the person. The amount of damages will have to be assessed at a separate hearing.
113. It would, however, be wrong to leave this judgment without putting this incident in context. The British Army can justifiably be proud of the operation it carried out in Kosovo. It helped to bring peace to a scarred and deeply divided community, and will have saved countless lives. It displayed professionalism and discipline of the highest quality. The soldiers on the ground had to carry out difficult and highly responsible tasks which required a combination of courage and sensitivity. In general, they discharged their duties with considerable credit. But soldiers are human; from time to time mistakes are inevitable, and even the most rigorous discipline will crack. In this case the fall from the Army’s usual high standards led to tragic consequences for the victims and their families. The Queen’s uniform is not a licence to commit wrongdoing, and it has never been suggested that it should be. 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.
In 1991, during a debate in the House of Commons on the subject of compensation for Allied prisoners of war in the hands of Japan during the Second World War, the UK Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs, referring to Articles 14 and 16 of the 1951 Peace Treaty for Japan, stated:
The [1951 Peace Treaty for Japan] contained a specific provision for compensation for prisoners of war. We had insisted on that provision, which had not been included in the original treaty, because we thought it important that the treaty should recognise the cruel and barbaric treatment to which allied service men in the far east had been subjected … No one could dispute that the issue of compensation was crucial … From the disposal of Japanese property within its jurisdiction, the United Kingdom received just over £3 million. The United Kingdom’s share of the £4.5 million that the Japanese Government placed at the disposal of the International Red Cross in accordance with article 16 of the treaty was just over £1.6 million.
It was agreed in a minute between the Japanese and the allied powers that the payment of the £4.5 million would be recognised as a full discharge by the Japanese Government of their obligations under article 16 of the peace treaty … I sympathise with my right hon. friend’s contention that the settlement was unsatisfactory but … the provisions of the treaty remove any possibility of the British Government claiming further compensation or reparations from the Japanese Government.
In 2003, in a written reply to a question in the House of Commons asking “what compensation will be paid to the estates of Iraqi civilians who died as a result of British military action in Iraq”, the UK Minister of State for the Armed Forces, Ministry of Defence, stated:
There are no plans to pay compensation to Iraqi civilians killed during combat operations in Iraq.
The handling of claims made by Iraqis for losses which do not arise in connection with combat operations are governed by section 6 of the Coalition Provisional Authority Order Number 17. This provides that any such claims shall be submitted to and dealt with by the parent state of the person whose activities are alleged to have caused the loss. The claims will then be dealt with in a manner consistent with the national laws of that parent state.
Where a claim against British troops arises from activity which would not give rise to a legal liability to pay compensation under English law, there may nevertheless be an ex gratia payment made to the injured person or to the family of the deceased where this would be in accordance with local custom or directed to meet a particular urgent humanitarian need.
In 2003, in a written reply to a question in the House of Lords, the UK Minister of State, Foreign and Commonwealth Office, stated:
The Government deplore the war crimes committed during the Balkans conflict in the early 1990s, including the rape of women and girls in Bosnia.
We are sympathetic to any proposal to improve the situation of the victims of these crimes, but it is not clear that awarding civilian war victim status would be the most effective means of ensuring support for these women. What is required is recognition of their suffering as victims of rape, conviction of the perpetrators and provision of appropriate support for these women and their children.
Through the work of the Department for International Development, and support for UNICEF and local NGOs, the Government support projects to raise awareness of rape as a war crime. We strongly support the work of the International Criminal Tribunal for former Yugoslavia, which is tasked with bringing to trial those suspected of war crimes and crimes against humanity during the Balkans conflict, including rape. It has convicted a number of individuals of this crime. With our partners in the EU, we apply concerted pressure to all governments in the region for greater co-operation with ICTY, particularly in the handover and prosecution of indictees.
The best way to secure financial support for these women and their children is through successful convictions in the Bosnian courts, which can award compensation to the victims of rape. Together with our EU partners, we are working hard to strengthen the capacity of the Bosnian judicial system, so that it can prosecute the perpetrators of these crimes more effectively and efficiently, and provide sustainable support to the victims.
In 2003, during a debate in the House of Lords, the UK Parliamentary Under-Secretary of State for Defence stated:
My Lords, every effort is made to minimise the impact of military operations on the Iraqi civilian population, and we deeply regret all civilian casualties. Since 1st May 2003, we have investigated every civilian fatality allegedly caused by UK military personnel, sometimes resulting in a formal investigation by the Special Investigation Branch.
We treat claims for compensation in respect of civilians who have allegedly been killed or injured by UK forces since 1st May on their merits, in accordance with English law. We have no liability to pay compensation in respect of Iraqis killed or injured during combat operations.
In 2004, in a written answer to a question concerning, inter alia, economic assistance to Iraqi families for loss or long-term disablement of a main income earner, the UK Secretary of State for Defence stated:
Iraqi civilians alleging negligence against the Ministry of Defence may submit a compensation claim to the Department’s Area Claims Officer based at Basra. When such claims are submitted, they are considered on the basis of whether or not the Ministry of Defence has a legal liability to pay compensation. Where there is a legal liability to pay compensation, we do so. Any amount payable is determined case by case, taking into account the specific circumstances of the injured party.
In 2006, in a written answer to a question in the House of Commons concerning “what provisions are in place for compensation for Afghan civilians (a) killed, (b) wounded and (c) otherwise harmed during International Security Assistance Force operations”, the UK Minister of State for Armed Forces, Ministry of Defence, stated:
When compensation claims are received they are considered on the basis of whether or not the UK Ministry of Defence has a legal liability to pay compensation. Where there is a proven legal liability, compensation is paid.
From the outset of operations in Afghanistan we have recognised our duty to provide compensation to Afghan civilians where this is required by the law. The procedures for handling compensation claims are straightforward and have been tested in other operational theatres. An area claims officer based in Helmand Province handles routine claims, but to ensure a consistent approach those cases involving death or serious injury of Afghan civilians are handled by claims staff in UK.
In 2007, in the information provided to the Human Rights Committee on the implementation of the Committee’s concluding observations concerning the UK’s sixth periodic report, the United Kingdom stated:
26. The Armed Forces are fully aware of their obligations under international law. …
27. Reparation will be paid to victims or their families where there is a legal liability to do so resulting from the unlawful activities of any member of the UK armed forces. Claims for death and personal injury can be brought under UK common law and compensation may be payable for human right breaches under the Human Rights Act where that applies. Compensation may also be payable under UK criminal injuries compensation provisions where applicable.