Original version by Stefanie Schmahl December 2006; reviewed by Stefanie Schmahl November 2024.

A.  Background

1  Early in 1918, a British military expedition under the command of General Dunsterville was sent from Baghdad to the northwest of Persia. The Persian government, although neutral (Neutrality, Concept and General Rules), had permitted the establishment of British forces on its territory in order to oppose German and Turkish armies in case they attempted to occupy the oil fields of Baku. The progress of the expedition was hampered by hostile activities of armed bands and enemy spies. On 8 August 1918, the British military authorities arrested the French national Julien Chevreau near the port of Enzeli on suspicion of being a German agent. In September 1918, Chevreau was sent to Baghdad where he was first admitted to a hospital to undergo a medical operation and, one month later, interned in a camp for Turkish prisoners of war (Internment). Having made a request to communicate with French authorities, Chevreau was brought before the French military attaché, to whom he expressed his wish to be repatriated (Repatriation). After some correspondence between the French and British ambassadors at Tehran in January 1919 (Diplomatic Communications, Forms of), Chevreau was sent to Port Said via Basra and Bombay, and on 7 March 1919 he was handed over to the officials of the French base there (Extradition).

2  After Chevreau’s death in 1925, the French government, on behalf of Chevreau’s widow, sought to obtain compensation from the British government for the injury suffered by Chevreau because of his arrest, detention, and deportation (Detention, Arbitrary; Diplomatic Protection). Attempts to achieve an amicable settlement having failed, both governments agreed to submit the case to arbitration. By the Compromis d’arbitrage signé a Londres le 4 mars 1930 entre la France et le Royaume-Uni de Grande-Bretagne et d’Irlande du Nord relativement à la réclamation Chevreau (‘Compromis’; Compromis), the following questions were submitted to the arbitrator: did the arrest and detention in Persia of Chevreau by British forces or authorities, and his subsequent deportation to India and Egypt, take place under such circumstances as to give rise to a claim in international law; and if so, did the acts cause moral or material damage to Chevreau; and if so, what would be the appropriate amount of compensation? Frederic VN Beichmann, a member of the Permanent Court of Arbitration (PCA), was appointed as arbitrator (International Courts and Tribunals, Judges and Arbitrators). He issued his award at the Hague on 9 June 1931 (Affaire Chevreau (France v United Kingdom)).

B.  The Arbitral Award

3  The arbitrator formulated three principles. First, the arbitrary arrest, detention, or deportation of a foreigner may give rise to a claim in international law, but the claim is not justified if these measures have been taken in good faith (bona fide) and upon reasonable suspicion, especially if they are taken within a zone of military operations (Region of War). Second, in cases of arrest, suspicions must be verified by serious inquiry, and the arrested person must be given an opportunity to defend himself as well as to communicate with the consul of his country if he so requests; failing such inquiry, or if it is unduly delayed or if the detention is unnecessarily prolonged, a claim is justified. Third, the detained person must be given treatment appropriate to his situation conforming to the standards habitually practiced among civilized nations; if this rule is not observed, there is ground for a claim.

4  A significant point in the decision concerned the question of the burden of proof, which preceded the examination of various grievances. As to whether Article 3 Compromis altered the rules of proof by imposing upon each party the duty of determining ‘to the satisfaction of the Arbitrator the authenticity of all points of fact offered to establish or disprove responsibility’ (translation by the author), it was held that this provision was not intended to exclude the application of the ordinary burden of proof rules (International Courts and Tribunals, Evidence). It only meant that there might also be a duty to prove the existence of the facts alleged in order to deny responsibility.

5  On the facts, the arbitrator found that the arrest of Chevreau had not been arbitrary. Under the special circumstances by which the British forces were in Persia, they had the right to protect themselves against acts harmful to their operations or favourable to the enemy, a right which in general belongs to belligerent forces occupying enemy territory (Belligerency). But as the British government had failed to produce evidence that a proper inquiry had taken place, Chevreau’s deportation and subsequent detention were held to justify a claim in international law. On the other hand, the complaint that Chevreau had been refused permission to communicate with the French consul was considered to be without foundation, since the French government did not prove this allegation. Similarly, it was held that not all the charges concerning Chevreau’s ill-treatment during his deportation and detention had been adequately proven, although the arbitrator took into account the suffering caused by the rigorous conditions of the internment with Turkish prisoners of war. Lastly, the arbitrator found that the deportation and detention had caused material and moral injury. He fixed the indemnity which the British government was to pay to France on behalf of the claimant at £2,100. In arriving at this global sum, the arbitrator took into account the whole period of detention, and the sufficiently proven loss of a violin which belonged to the prisoner’s effects and had been seized from his house in Persia after his arrest.

C.  Contemporary Relevance of the Award

6  This arbitration is of continuing relevance, especially regarding the fight against terrorism in which, since 2001, suspected international terrorists of foreign nationality have been arrested, deported to and detained at, inter alia, the United States naval base at Guantánamo Bay as ‘unlawful combatants’ without the right to counsel and without access to the judicial system (Combatants, Unlawful; Guantanamo Naval Base; Guantanamo, Detainees; Remedies). By 2004, the US Supreme Court had already clarified that national law allowed the federal courts jurisdiction to hear habeas corpus challenges to the legality of such detentions (Rasul v Bush (2004)). Nevertheless, international law also requires that aliens detained in war zones, including in the struggle against terrorism, must be given rights to counsel and to judicial review at least concerning their prisoner of war status, not to mention the right to be treated humanely during deportation and detention pursuant to common Article 3 Geneva Conventions I–IV (1949). It is thus to be welcomed that the US Supreme Court, by a decision of 29 June 2006, stated that the military commissions and procedures established to prosecute suspected terrorists violate the principles of the Geneva Conventions (Hamdan v Rumsfeld (2006)). The award is of further relevance in view of intelligence activities such as unlawful detention, forced disappearance, or targeted killing. In such cases, support rendered by other states may also give rise to state responsibility (cf. El-Masri v the former Yugoslav Republic of Macedonia (2012); Husayn (Abu Zubaydah) v Poland (2014); Nasr and Ghali v Italy (2016)).