A Danish High Court (‘Østre Landsret’) decided this month that the Danish government should compensate a group of Iraqi nationals who sued the Ministry of Defense over ill treatment during their detention in Iraq in 2004. The decision, issued on June 15, lays out why the court determined that Danish troops should have known about the risks of inhumane treatment at the hands of partner forces and outlines the court’s finding regarding the basis of the claim.

The case originated from a November 2004 joint Danish/British/Iraqi operation called “Green Desert” conducted in an area around the city of Basra in southern Iraq. At the time, Denmark had deployed an army battalion in the south as a contribution to the US-led military campaign. In Operation Green Desert, around 350 Danish forces assisted primarily Iraqi security forces in operations aimed at suspected Iraqi insurgents. In the course of the operation, more than 30 Iraqis were apprehended and detained in, first, an Iraqi military base and, thereafter, a detention facility operated by a Special Crimes Unit under the Iraqi police.

In 2011, 23 of the Iraqi nationals filed a complaint against the Danish Ministry of Defense and asked for compensation for the alleged mistreatment they suffered during the military operation and ensuing detention. According to the plaintiffs, they were subjected to inhumane treatment and torture.

They argued that the Danish forces had either detained them themselves or assisted the Iraqis; that the Danish forces had either physically struck the plaintiffs themselves or witnessed such acts by the Iraqi forces; and that the Danish forces had participated in or witnessed humiliating treatment during their initial screening at the Iraqi military base.

The court did not dispute that 18 of the 23 plaintiffs had indeed been subjected to inhumane treatment and torture during their detention in the Iraqi Special Crimes Unit. The court did not find, however, that there was sufficient evidence to conclude that the Danish forces, or other forces under Danish control, had themselves subjected any of the plaintiffs to inhumane treatment or torture during or after the operation.

The court nevertheless found that the plaintiffs were entitled to compensation, because the relevant Danish authorities should have known that there was a real risk that individuals captured in the operation would be subjected to inhumane treatment in Iraqi custody. Interestingly, the court did not find that the authorities also could have foreseen a risk of torture. The court concluded that the Danish contribution to the operation was quite substantial and that the Iraqi forces likely would not have proceeded with the operation without the assistance offered by the Danes (p. 26).

A General and Specific Risk of Inhuman Treatment

In determining that the Danes ought to have known about the risk of inhumane treatment, the court relies on both a general and a specific risk. On the general risk, the court notes that the relevant Danish authorities were aware that civilian Iraqis detained by Iraqi forces in the Basra region after the transfer of power in June 2004 were at risk of inhumane treatment. As for the risk in the specific operation, the court found that the Danes ought to have been particularly concerned because, among other things, the individuals in question were deemed to be hardened opponents of the coalition.

For the legal basis of the claim, the court relied on Coalition Provisional Authority (CPA) Order No. 17 (revised), issued by the head of the CPA, Paul Bremer, on June 27, 2004. The order concerns the status of the CPA itself; Multinational Forces in Iraq (MNF), such as the Danish forces; and “certain missions and personnel in Iraq” (including private contractors), in particular in relation to activities following the June 30, 2004, transfer of power to the incoming Interim Iraqi Government.

The court referred to Art. 18 of the order that stipulates:

Third-party claims including those for property loss or damage and for personal injury, illness or death or in respect of any other matter arising from or attributed to acts or omissions of … MNF … and that do not arise in connection with military operations shall be submitted and dealt with by the Sending State whose personnel … are alleged to have caused the claimed damage, in a manner consistent with the Sending State’s laws, regulations and procedures.

According to the court, Art. 18 provided a legal avenue for bringing a civil claim against the Danish authorities in accordance with the ordinary principles in Danish law of torts, including the principles that govern the responsibilities of public authorities, with due regard to Article 3 of the European Convention on Human Rights (ECHR) (p. 6). Thus, the court made an overall assessment of whether the conduct of the Danish authorities in assisting the Iraqi forces was in any way blameworthy, more specifically, whether the Danish authorities knew or should have known that there was a risk that individuals detained in the course of the Operation would be subjected to, among other things, torture in Iraqi custody.

But the court’s reliance on CPA order No. 17 is dubious. Even if one were to assume that it is a sufficient basis under domestic Danish law, Art. 18 explicitly excludes claims that have arisen “in connection to military operations.” Here, the court seems to have reached one of two conclusions: 1) the operation in question is not a military operation but rather an instance of “policing,” or 2) the ill-treatment and torture occurred at a time when the detainees had been transferred from the Iraqi military to the Iraqi police and thus after the military operation had been brought to an end.

Policing or Armed Conflict or Both?

With regard to the potential classification of the operation as one of (mere) “policing,” it should be noted that the operation took place in November 2004, at a time when there is no longer an international armed conflict/occupation in Iraq. One could argue, however, that the situation at the time in and around at least parts of Iraq qualified as a non-international armed conflict governed by Common Article 3 to the 1949 Geneva Conventions, and that the operation was sufficiently linked to that armed conflict for it to be rightly considered a “military operation.” This, it seems, was also the position adopted by the Danish Ministry of Defence.

With regard to the second possible conclusion by the High Court (the determination that the claim did not arise in relation to military operations because the ill-treatment and torture occurred after the operation had been concluded), it is hard to see why a subsequent transfer of the detainees from the Iraqi military to the Iraqi police would alter the military character of the operation that secured their detention.

The decision by the court to base the claim on an (alleged) authority in CPA order No. 17 and decide the case on the basis of the principles that govern the responsibilities of public authorities in national Danish law of torts (was the conduct of the Danish authorities in any way blameworthy?) means that the court, unfortunately, does not engage with many of the tricky international law issues that are frequently dealt with in cases concerning acts by military forces deployed abroad. For one thing, although the issue featured prominently in the proceedings before the court, it did not find that it needed to deal with the question of jurisdiction in Article 1 of the European Convention on Human Rights. The court shied away from determining if the plaintiffs had, at any time during the operation and/or their subsequent detention, been under the jurisdiction of the Danish Forces and thus protected by the convention. It therefore did not cast any new light on the thorny question of when, exactly, a state triggers the application of the convention when it acts abroad through its military forces.

The court also avoided a discussion of state responsibility, including the (so far rarely used) principles governing joint responsibility. According to Article 16 of the 2001 International Law Commission Guidelines on State Responsibility, a state may be responsible for an internationally wrongful act of another state, if it aids or assists the latter state in the commission of the act.

What now?

The Danish Ministry of Defense has reacted with frustration to the decision by the court. The Minister of Defense stated that the decision “means that we can no longer contribute to improving security – and therefore guaranteeing human rights – in countries engaged in armed conflict.” While the decision has undoubtedly created unwelcomed uncertainty about the legal framework governing the deployment of Danish troops, it may not be as far-reaching as the Minister indicates. For one thing, as noted earlier, the court attaches particular importance to the substantial role that Denmark played in the operation and to the fact that the operation would not have been initiated had it not been for the Danish assistance. The decision does not, therefore, appear to be relevant to the more generic and overall assistance, such as training and educational activities, that Danish forces provide local forces.

However, one of the important issues that is unclear after the decision is whether there is a minimum threshold in relation to the treatment detainees can expect to be subjected to when being detained by a partner state. It is a well-known fact that prison conditions in places like Iraq and Afghanistan often do not live up to human right standards. Does this mean that Danish forces will now be categorically barred from offering their substantial assistance to operations with Iraqi or Afghan partners that are expected to result in the apprehension and subsequent detention in facilities in Iraq and Afghanistan? If the answer to that question is affirmative, it would indeed limit Denmark’s ability to continue its decade-long policy of sending troops to participate in capacity-building in places like Iraq and Afghanistan.

The decision by the High Court has been appealed to the Danish Supreme Court.