Over the past decade, the direction of travel of jurisprudence by English courts has significantly departed from an earlier position that considered the acts of the UK government in the exercise of foreign relations to be a non-justiciable area, and shifted towards scrutiny of the impact of UK foreign policy decisions on individuals (see Al Rawi v Secretary of State for Foreign and Commonwealth Affairs  QB 289; the Binyam Mohamed case, and more recently the discussion of crown act of state doctrine in Serdar Mohammed v Secretary of State for Defence). After all, as stated by Lord Sumption back in an address at the London School of Economics in 2012, “the acts of the executive are by definition justiciable in its own courts”. The most significant factor for such a shift, as Lord Sumption noted, was the enactment into English Law of the European Convention on Human Rights (“ECHR”).
Despite this shift in the judicial attitude with regard to review of acts of the executive in foreign affairs, jurisdictional issues (ratione temporis) and time bars are proving to be hurdles in the path of claimants bringing claims with regard to acts engaged in by the UK government extraterritorially. The recent Supreme Court decision in Keyu and others v Secretary of State for Foreign and Commonwealth Affairs  UKSC 69 (“the Batang Kali massacre case” on which see this previous post) dealt with a temporal jurisdictional obstacle. The Supreme Court’s 12 May 2016 decision in Ministry of Defence (Respondent) v Iraqi Civilians (Appellant)  UKSC 25 (“The Iraqi civilians case”) is another example of a hurdle faced by claimants, this time in the guise of a time bar.
While the Batang Kali massacre case was concerned with the Supreme Court’s interpretation of public international law rules, (quite centrally, with the duties Article 2 ECHR imposes on the UK in the context of inquiries), the decision in the Iraqi civilians case concerned English private international law, and turned on a point of interpretation of The Foreign Limitation Periods Act 1984.
In the Iraqi civilians case, the Supreme Court gave judgment in relation to 14 lead claimants (in claims by over 600 Iraqi citizens), who had alleged unlawful detention and/or physical maltreatment at the hands of British armed forces in Iraq between 2003 and 2009.
The Supreme Court held, applying Iraqi limitation law, that the claims of the Iraqi civilians in England were time-barred. It dismissed the appeal. This post addresses the central holding of this case.
The Iraqi Civilians case
The claims in the Iraqi civilians case were brought in tort in England against the Ministry of Defence. The substantive law (torts) was governed by Iraqi law, the lex causae in the case. Under article 232 of the Civil Code of Iraq, the standard limitation period applicable to claims of the kind made by the claimants is three years from the day on which the claimant became aware of the injury and of the person who caused it. The action by the Iraqi claimants had begun more than three years after most of them must have been aware of such. The claimants argued, however, that time had been suspended for limitation purposes under article 435 (1) of the Iraqi Civil Code which suspends the time limit “if there is [an] impediment rendering it impossible for the plaintiff to claim his right”. They argued that Coalition Provisional Authority (“CPA”) Order 17, constituted such an impediment because it made it impossible for them to sue the British government in Iraq. Section 2(1) of this Order provides that coalition forces in Iraq (including British forces) are “immune from Iraqi legal process”. It was agreed between the parties that CPA Order 17 did in fact make it impossible for the claimants to sue the British government in Iraq throughout the relevant period.
In the first instance in the case, Leggatt J issued a decision in favour of the claimants, holding that the limitation period had been suspended under article 435(1). The Court of Appeal disagreed. It held that an English court was bound to disregard any impediment arising from CPA Order 17, because that order was merely a procedural bar to proceedings in Iraq and had no relevance in an English court.
The Supreme Court’s Decision
Lord Sumption gave the only judgment with which the other Justices agreed.
The Supreme Court first noted that English private international law distinguishes between matters of substance which are governed by the proper law of the relevant issues (lex causae), and matters of procedure which are for the law of the forum. The relevant law in English proceedings concerning how to treat limitation matters was the Foreign Limitation Periods Act 1984. Under the Foreign Limitation Period Act, English courts are required to apply the limitation rules of the lex causae to English proceedings. In this case, the Court noted, this was the Iraqi law of limitation.
The question for the Supreme Court was whether it was legally relevant, when the claimants had brought proceedings in England, what impediments might have prevented similar proceedings in Iraq.
The answer was no. The Court observed that because the foreign law of limitation would have been designed for foreign proceedings, in order to apply Iraqi law of limitation to English proceedings, a process of transposition would be involved. It observed that: “There may be facts which the foreign law of limitation would treat as relevant to foreign proceedings but which are irrelevant to proceedings in England.”
In that process of transposition, the Supreme Court found that CPA Order 17 was not a rule of limitation but rather a fact devoid of legal effect outside Iraq. The Court held that where the Iraqi law of limitation depends for its operation on some fact about the proceedings, the relevant fact is that applicable to the actual proceedings (e.g. those brought in England) and not some hypothetical proceedings that the claimants have not brought in Iraq, and in this case could not have brought in Iraq.
Concerned with impediment and impossibility affecting the bringing of legal proceedings, the Court held that this depends on the personal situation of the claimants in relation to the relevant proceedings, which were those brought in England. CPA Order 17 was an irrelevant fact for the proceedings in England because it had never impeded resort to the English courts.
The claimants had argued that an English court applying the Act of 1984 must give effect to the whole of the relevant Iraqi law of limitation and not just part of it. Iraqi law would treat certain facts as relevant to Iraqi proceedings; to treat those facts as irrelevant to English proceedings would involve displacing part of Iraqi law. The Supreme Court held that this was not so. It was rather a matter of applying the same principles of Iraqi law to different facts. It dismissed the claim of the Iraqi civilians and affirmed the Court of Appeal’s conclusion that the limitation period was not suspended under article 435 (1) of the Iraqi Civil Code.
The judgment is brief (seven pages), and contains no reference to authorities. It is a sweeping decision but it does not, however, end the claims arising out of the Iraqi intervention. A number of test cases brought against the UK government over their role in southern Iraq are going to trial this summer. The courts will be hearing these cases around the time the Chilcot report into the Iraq war, which is set for July, becomes available. There is also the case of Al-Waheed v. Ministry of Defence (arising from detention in Iraq), which is pending for judgment by the Supreme Court (together with the Serdar Mohammed case arising out of detention in Afghanistan).
But the Iraqi civilians case is instructive in another regard; that of a fascinating interplay between private international law and public international law in extra-territorial cases. In particular, it illustrates the complexity of the practice of international law and the inter-relation between private international law, which acts as a gatekeeper in deciding what goes on to be adjudicated by the courts, and public international law, which is relevant to the facts that are adjudicated once through that gate.
Lord Sumption’s observation in his address at LSE back in 2012 has never been more relevant: the courts will continue to scrutinise the impact of foreign policy decisions upon individuals in a way that would not long ago have been unthinkable. Whether “the law’s web [would] be spun more finely”, and actions that in the past may have escaped it, may be dealt with by English courts, remains to be seen.