MoD faces hefty compensation claims after Kosovo ruling

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The Independent Online

British soldiers on peace-keeping duties in Iraq could be liable for massive compensation payouts after the High Court upheld the claims yesterday of two Kosovan civilians. The case is believed to be the first successful legal action against the Ministry of Defence arising from injuries caused by British peace-keepers in a war zone. It has won the right to appeal.

Mohamet Bici, 27, was shot in the jaw and his cousin Skender Bici, 28, left with severe psychological trauma after British soldiers broke up a demonstration in Pristina in July 1999. A third cousin, Fahri Mohamet, was killed by the Parachute Regiment when he fired an AK-47 assault rifle in the air during the same incident.

Mohamet Bici and Fahri Mohamet were on the roof of a car and Skender was in the back seat when the soldiers ordered the car to stop, and opened fire when it did not. Mohamet Bici was airlifted to Leeds for medical treatment and both men, who were not in court, are settled with their families in the UK.

Mr Justice Elias rejected the MoD's argument that the soldiers were acting in self-defence. But more significantly he ruled that "combat immunity" or "battlefield immunity" did not bar claims against the armed forces on peace-keeping duties in a war zone. The judge concluded "not without hesitation", that it had not been shown the soldiers acted in a wholly reckless manner.

Damages are to be assessed later but the case is expected to have far-reaching implications for civilians injured or killed by British peace-keepers. British lawyers for Iraqi families pursuing claims against the MoD in similar circumstances said they were "delighted" by the ruling. Phil Shiner, from Public Interest Law, said: "We hope the Kosovo case will boost the claims of the Iraqi families. I know the Government is very worried about these cases and I hope it will put further pressure on them to set up a fair compensation scheme for the Iraqi claimants."

Mr Justice Elias said if the soldiers were on peace-keeping duties and not acting in self-defence then "combat immunity" could not succeed. On duty of care, the judge said the basic position was that soldiers owed the same duties as ordinary citizens, and the latter clearly owed a duty of care.

He compared the cases to soldiers in Northern Ireland who had faced negligence claims from incidents when they had to take aggressive action to keep the peace in the face of a disorderly and hostile crowd. He dismissed the argument that the men were partly responsible for their own injuries by travelling in a vehicle with someone who was firing a gun in a "potentially provocative" manner.

"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."

An investigation by the Royal Military Police has cleared the soldiers involved because of the situation they were operating in. Nicholas Soames, the shadow Defence Secretary, said: "While recognising that this case is going to appeal, many fair-minded people will consider this a bad judgment and one that will make life extremely difficult for our troops who have to work in some of the most dangerous of situations."

The judge said of the soldiers: "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."