The Danish Supreme Court held in a judgment of 31 May 2022 (case 134/2018), that Danish law should be applied for tort liability for assaults committed during the military operation Green Desert in Iraq in 2004.
In the aftermath of the war in Iraq in 2003, Iraq was controlled and administrated by international coalition forces. Danish troops took part in the coalition between 2003 and 2007. In 2004, Danish and British troops collaborated with Iraqi military in a search and arrest operation called “Green Desert”. During the operation, several Iraqis claimed that they were subject to torture. For this maltreatment, 18 Iraqis filed a civil lawsuit against the Danish Defence Authority for tort compensation in Denmark.
In its judgment, the Danish Supreme Court found that it was proven that Iraqis had been subject to assault during operation Green Desert. Whether the Danish Defence Authority could be held liable for the assaults should be decided according to Danish law and the European Convention on Human Rights.
The conclusion to apply Danish law was not elaborated in the judgment. However, the Danish Supreme Court notes that pursuant to section 18 in the Coalition Provisional Authority’s Order 17, third party claims shall be dealt with “in a manner consistent with the Sending State’s laws, regulations and procedures”. Regardless of whether the order could be seen as having status of Iraqi law or not, the Supreme Court held that its status does not matter as it points out Danish law to be applicable. Perhaps, this statement by the Supreme Court can be interpreted as an allowing attitude to the doctrine of renvoi as it seems that a remission to Danish law would be accepted if Iraqi law would have been pointed out by Danish choice of law rules. As the judgment is not at all framed as a private international law matter, such conclusions shall probably be cautiously made.
In substance, the Danish Supreme Court held that the Iraqi plaintiffs were not entitled to compensation according to the Danish Damages Act’s Section 26 on liability for torts as it was not proven that assault was conducted by Danish troops. Nor was it proven that the Danish troops should have known or understood that collaborating Iraqi military personnel would conduct assault to the civilians. Eventually, the Supreme Court held that nor did the European Convention on Human Rights (ECHR) lead to a different result. In this part, the Supreme Court concluded that the alleged assaults were conducted on territory controlled by Iraq. Hence, Denmark lacked public international law jurisdiction, which is a prerequisite for application of the ECHR according to Article 1.
Interesting case… I wonder (a) Which is the “State” where the facts have been commited? Is it Iraq or not since the territory where the facts took place was a zone-war where soverignty is in doubt? and (b) Might the Danish order might be regarded as a part of the law of the State where the facts took place, specialy if one considerse that the torts havee been commited in Iraq?
In the part where the Danish Supreme Court disregarded the application of the ECHR, it found that the alleged assaults took place in Iraq. At the time of the operation power hade been transferred from the coalition to an interim government. So at least in the assessment under the ECHR, the alleged assaults took place in Iraq.
Your question on whether Danish law could be considered to be part of the law of the state where the facts took place is really interesting. The conclusion for why Danish law was applied is, as I wrote in the post, not explicitly elaborated by the Danish Supreme Court. Hence, it is unclear if the underlying choice-of-law rule was the law where the facts took place or something else. Regardless of that, I think that your question touches upon the issue of how foreign law shall be applied when the applicable law is in a disputed territory. Is it the law in action or the law in books that shall be applied? An idea I have is that the answer to that question depends on the public international law relations of the forum state. Should, for example, Russian or Ukrainian law be applied in an EU member state if a choice of law rule points out the law in Crimea as applicable?
Thanks for this report, Erik.
I trust that the issue of the applicability of Order 17 in Danish courts was obvious and did not need.to be addressed.
On the general issue of the applicable law, it seems to me that the dispute relates to the action of Denmark as a sovereign. In such a case, there is no debate that any action against Danish authorities relates to public law, and it seems to me equally clear that the actions of Danish troops abroad are necessarily governed by Danish law, including whichever international/European principles that Danish law would deem applicable under the circumstances. In contrast, the law of the place of the tort should be irrelevant. And if the Rome II Regulation were in force in Denmark, it should not apply, as the action would not be a commercial or civil matter.
In a US case, an action for wrongful death was initiated by the family of a US marine who died in Irak while showering due to an (electric) issue with the construction of the shower by an American contractor to the US Army. The court referred to Order 17, but this was a private case, I would argue, which, in the EU, would fall within the scope of civil and commercial matters.
Interesting! Have you got a link or a case number to the US case?
Harris v. Kellogg, Brown & Root Services, Inc. 796 F.Supp.2d 642
Parents, on behalf of themselves and as administrators of soldier’s estate, brought action against government contractor, alleging contractor’s negligent performance or non-performance of electrical maintenance at military base caused injuries to soldier and his death in Iraq, resulting in damages. Held that Iraqi law did not apply.