Chevreau Claims

Facts

In early 1918, British military forces were sent from Baghdad to the shores of the Caspian Sea, in order, inter alia, to prevent German and Turkish forces from advancing into Mesopotamia and Persia. The progress of the British troops was frustrated by the hostility of bands of armed brigands. In July 1918, the British expedition suffered a series of attacks at the hand of these brigands, whom it was finally able to rebuff. Nevertheless, enemy agents continued for some time to pose a threat to the safety of the expedition. Several of these agents were arrested, including a French citizen, Julien Chevreau, who had settled in Persia as a language teacher. After his arrest, Mr. Chevreau was imprisoned and sent to Baghdad, where he was placed in a camp for Turkish prisoners of war. Correspondence concerning his arrest began between the French and British ambassadors at Teheran, as a result of which Mr. Chevreau was returned to France by way of Bassorah, Bombay, and Port Said where, on March 7, 1919, the British authorities released him to the French authorities. Following his return to France, Mr. Chevreau complained of his arrest before the Minister of Foreign Affairs, alleging that he still knew of no reason for it, that despite his request, he was not permitted to communicate with the French Consul, and that he had been subjected to maltreatment during his imprisonment. He also complained that during his imprisonment, various objects had disappeared from his place of residence. Through the intervention of the French Government, Mr. Chevreau attempted to obtain damages for the pecuniary and non-pecuniary losses he had suffered. Following his death in 1925, his widow continued to pursue the matter. Attempts by the French Government to reach an amicable settlement failed, and the two Governments ultimately decided to submit the matter for settlement by arbitration.

Questions Submitted to Arbitration

1. Whether the arrest and detention of Mr. Chevreau by British troops or authorities in Persia in 1918, and his subsequent deportation by way of India and Egypt, took place under such circumstances that they give rise to a claim under international law.

2. If so, whether they caused Mr. Chevreau to suffer pecuniary or non-pecuniary loss, and in that case, what is the measure of damages to be paid by the Government of the United Kingdom to the Government of France for the benefit of Mrs. Chevreau?

Decision of the Arbitrator

The Arbitrator began by reviewing the background of the case. He then determined the legal status of the British forces in Persia, at the time of the events underlying the arbitration. He found that, despite the fact that Persia was a neutral State that was not engaged in war, the circumstances in which the allied forces found themselves, with the approval of the local government, were such that one could not deny the British forces operating in Persia the right to take necessary measures to protect themselves against acts of the civilian population that defeated their operations or aided the enemy, which right generally, according to international law, belonged to hostile forces occupying enemy territory.

The Arbitrator then summarized the basic rules applicable in the present matter, which, it should be noted, had also been applied by various international commissions, i.e.:

1. The arbitrary arrest, detention, or deportation of a foreign national may give rise to a claim under international law. But such a claim will not be justified if the measures were undertaken in good faith and on the basis of reasonable suspicions, particularly in the case of a zone of military operations.

2. In the event of an arrest, the suspicions must be verified by a thorough investigation, which gives the person arrested the opportunity to defend himself against the suspicions concerning him and, in particular, to communicate with the Consul of his country, if he so requests. If no such investigation takes place, or if it takes place too late, or finally, in general, if the length of the detention exceeds that which is necessary, a claim is justified.

3. The person being detained must be treated in a manner that is appropriate to his circumstances, and that corresponds to that which is customarily accepted by civilized nations. If this rule is not observed, a claim is justified.

The Arbitrator observed that there was no serious difference of opinion between the Parties concerning these rules.

Before examining the claims raised by Mr. Chevreau, the Arbitrator gave an explanation of the burden of proof. The British Government had taken the position that this burden fell on the French Government as claimant, whereas the latter asserted that, in the present case, there was neither a claimant nor a respondent. In support of this, the French Government cited an order of the Permanent Court of International Justice, issued on 15 August 1929, stating that since the case concerned had been initiated by a submission agreement, there was no claimant or respondent. In the opinion of the Arbitrator, however, the order merely referred to a question of procedure, and did not touch upon any questions concerning the burden of proof After all, although Article 3 of the submission agreement imposed on both parties the obligation to `establish to the satisfaction of the arbitrator the authenticity of all issues of fact asserted for the purpose of establishing or denying liability,' this provision was not . . . intended to exclude application of the normal rules of evidence. It was merely intended to provide an additional obligation to prove the existence of facts alleged for the purpose of denying liability.

The Arbitrator then found that the charges against Mr. Chevreau were sufficient to justify his arrest, i.e., he had been caught observing British petroleum warehouses and the Russian wireless telegraph installation; he had in his possession a portrait of the German Kaiser and Empress, as well as a letter indicating that he had had contacts with the Islam Alliance Committee; during questioning, he had given conflicting responses concerning his previous whereabouts; and he was considered by the commanding general of the British forces to be a German sympathizer and perhaps an enemy agent. Other more serious charges had been raised in the British Government's reply brief. The arbitrator found that it was not necessary to consider these other charges raised against him in the course of the proceedings several years after his death, and which apparently had not been considered significant enough to include at the time of the investigation undertaken in December 1918 in response to a request for information concerning Mr. Chevreau.

Nevertheless, even if the facts raised against Mr. Chevreau were sufficient to justify his arrest, this was only as a provisional measure, and the British authorities were obligated to proceed without delay to conduct an investigation in which Mr. Chevreau was informed of the charges against him, and given the opportunity to offer explanations and defend himself, as he did in 1919. They should also have permitted him to communicate with the Consul of his country, if he so requested. The Arbitrator found, however, that the French Government (which had the burden of proof) had produced no evidence for its allegation that Mr. Chevreau had expressed a desire to communicate with the French Consul. As to the question of whether the British authorities had conducted an investigation, the Arbitrator found that on the basis of the evidence presented, one could not find that an investigation offering the required safeguards had taken place. According to the Arbitrator, such investigation would have demonstrated that the charges against Mr. Chevreau did not provide sufficient grounds for prolonging his detention, nor for deporting him. The Arbitrator therefore held that Mr. Chevreau's deportation to Baghdad, and his detention there for several months, could give rise to a claim under international law. As to whether this was also the case with respect to Mr. Chevreau's ultimate transfer to Port Said by way of Bassorah and Bombay, the Arbitrator found that, because the repatriation of Mr. Chevreau was not undertaken as a measure that was solely dependent on his own will; he was released only in Port Said. . . . There were no indications that he would have been permitted to remain in Mesopotamia or to return to France by another route. . . . But this did not mean that the fact that Mr. Chevreau himself had requested repatriation to France was irrelevant to the question of damages. . . .

As to Mr. Chevreau's allegations concerning the manner in which he had been treated during his detention and deportation, the Arbitrator specified that the burden of proof rested with the French Government, and that, following the rule established in analogous cases, Mr. Chevreau's allegations could not be considered as sufficient proof, absent other supporting evidence. No such evidence had been presented, whereas the British Government had produced a number of affidavits that contradicted Mr. Chevreau's allegations on a number of points. The Arbitrator added that, in this part of the award, he felt it necessary to consider not only Mr. Chevreau's arrest in Persia in 1918, as set forth in the submission agreement, but also his detention in Baghdad from September 1918 to January 1919. The Arbitrator found that it followed from the conduct of the Parties during the course of the proceedings that they did not intend to exclude from review this latter potion of Mr. Chevreau's detention, and that it was a result of a substantive error that, in the submission agreement, the Parties had expressed themselves in terms that, when taken literally, appeared to limit the scope of the Arbitrator's mandate to the period during which Mr. Chevreau was detained in Persia.

The Arbitrator then reviewed the question of the loss suffered by Mr. Chevreau as a result of his unjustified detention. The French Government had claimed damages in the amount of £20 per day, from the date of detention until the date of release to the French authorities, or a total of £4,240. In support of this position, the Government cited the decisions taken by Mr. Plumley, umpire in a case involving claims against Venezuela pursuant to a 1903 agreement with Great Britain. That arbitrator had held that the sum of 100 dollars per day did not amount to excessive damages. The same rate had also been applied in America, in other cases.

The Arbitrator pointed out that the calculation of damages according to a certain daily rate was nothing more than a practical means of ensuring that the award was not arbitrary. It was, in principle, a question of fixing an aggregate sum that, taking into consideration the individual circumstances of each case, would equitably compensate the pecuniary and non-pecuniary losses suffered.

The rate that might be considered fair having regard to prevailing conditions in America was excessive in the light of the conditions prevailing in Europe and Persia at the time of the events in question.

Having regard to all of the circumstances involved, the Arbitrator fixed at £2,000 the amount of damages due to Mr. Chevreau as a result of his detention.

The Arbitrator then proceeded to examine the question of awarding damages for the alleged loss of personal property in Persia. Several items alleged to be present at Mr. Chevreau's domicile at the time of his arrest allegedly were stolen. The Arbitrator took the position that it was questionable whether the mere fact of Mr. Chevreau's arrest was adequate to impose on the British authorities a duty to undertake an immediate inventory of the property in question and to ensure its preservation. It was in the first instance up to the person arrested and to whom the property belonged to take care of its preservation. And the means of doing so depended upon the circumstances. But the Arbitrator held that, since the British Government had not denied that it had been under a duty to take appropriate measures aimed at preserving the property found in Mr. Chevreau's room, there was no reason to examine the question of liability any further.

The Arbitrator found that there was no proof that the British authorities had taken such measures. The British Government had, however, denied that Mr. Chevreau had possessed the property referred to. The burden of proof rested with the French Government, and Mr. Chevreau's allegations alone could not be considered sufficient evidence. The Arbitrator held that sufficient proof had been given for only one item: a violin valued at £100.

The French Government had, in addition, claimed damages for losses suffered by Mr. Chevreau as a result of the auctioning of property found in his domicile at the time of the inventory. This auction had taken place with the authorization of Mr. Chevreau, but the French Government alleged that the actual value of this property was greatly in excess of the revenue obtained from its sale. The Arbitrator rejected this claim, holding that in principle, it is the sales price that is relevant, rather than the actual value.

Finally, the arbitrator observed that, since the French Government had not demanded interest, he did not feel obliged to order its payment. However, in fixing the amount of damages at £2,000, the Arbitrator had taken into consideration the fact that twelve years had passed since the events in question.

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