by Rishi Gulati and Matthew Nelson*
The decision of the United Kingdom Supreme Court in Iraqi Civilians v. Ministry of Defence (No. 2)  UKSC 25 (“Iraqi Civilians”) demonstrates how public and private international law concepts interact and affect the rights of individuals allegedly subjected to grave breaches of rights to access a remedy before courts of law.
Iraqi Civilians: Background
The claimants, hundreds of Iraqi civilians represented by 14 lead claimants, brought claims under the Human Rights Act 1998 and in tort against the UK Ministry of Defence, for damages arising out of alleged unlawful detention and/or physical maltreatment by British soldiers between 2003 to 2008 in Iraq. After the cessation of the major combat operations in May 2003, the UK became an occupying power and began exercising the powers of the Iraqi Government on a temporary basis.
The Supreme Court’s brief decision, delivered by Justice Sumption, concerned the application of limitations to the claimants’ suits that operated as a matter of Iraqi law. Accepting, as the parties did, that Iraqi law applied in relation to questions of the Ministry’s liability in tort, the claimants were, by operation of Article 232 of the Civil Code of Iraq (the “Civil Code”), barred from commencing their applications (though their rights were not extinguished) by virtue of the operation of limitation periods to claims of this kind. Consequently, the claimants sought to invoke an order of the Coalition authorities, Coalition Provisional Authority Order 17 (the “Order”), that operated to suspend the taking of proceedings in Iraqi courts against the UK Government, such that it conferred state immunity on the UK Government from legal process in Iraqi courts. It is this order, the claimants’ argued, that had the effect of suspending the limitation periods, as envisaged in Article 435 of the Civil Code.
At first instance, Mr Justice Leggatt found for the claimants, concluding that the limitation period was suspended indefinitely because the Order constituted an impediment to the claimants bringing their claims against the UK Government in Iraqi courts. On appeal, Tomlinson LJ, delivered the Court’s decision, finding that the Order was simply a procedural bar to proceedings in Iraqi courts, with no relevance to English courts.
The Supreme Court noted that the English courts must ascertain the relevant foreign law of limitation, and apply it to the English proceedings. However, despite the basis for the purported suspension of the limitation period under Iraqi law, the Order was an instrument that has no operation outside Iraq, and did not operate to bar English proceedings at any time.
It is necessary to unpack the concepts in some detail.
Why was this claim brought in UK courts?
The answer lies in the law of State Immunity. Due to the application of State Immunity principles, the claimants were procedurally barred from bringing a claim against the UK in Iraq. It is worth citing the relevant arrangements between the UK and Iraq providing for such immunity.
Section 2 of The Order, still in force, states that “coalition forces in Iraq (including British forces) are immune from Iraqi legal process.” Section 2(4) provides that “coalition personnel are to be subject to the exclusive jurisdiction of their parent states, and immune from local criminal, civil and administrative jurisdiction other than by persons acting on behalf of their parent states.” Section 2(5) provides that “parent states may waive the immunity in respect of criminal liability at the request of the Coalition Provisional Authority if there are no relevant criminal sanctions in the parent state.”
The parties agreed that the Order made it impossible for the claimants to sue the British Government in Iraq throughout the relevant period” (at para. 8). It is questionable whether States can enjoy immunities with respect to the commission of a territorial tort. While yet not in force, Article 12 of the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property (the Convention), provides :
Personal injuries and damage to property
Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to pecuniary compensation for death or injury to the person, or damage to or loss of tangible property, caused by an act or omission which is alleged to be attributable to the State, if the act or omission occurred in whole or in part in the territory of that other State and if the author of the act or omission was present in that territory at the time of the act or omission.
Article 12 of the UN Convention is entirely consistent with the rules on private international law, and only time will tell whether State Immunity for torts would be confined to the realms of history. However, what is important to note here is that the public international law norms on State Immunity conflicted with the well-accepted principle of private international law, whereby the courts of the territory on which the alleged tort occurred possess the jurisdiction to decide that claim.
However, on the facts of Iraqi Civilians, as both parties agreed that the bar presented by State Immunity was unbeatable, and that no waiver appears to have been forthcoming, the only recourse for the claimants was before English courts. Paradoxically, it was accepted that Iraq would have been the obvious and natural forum for the claimants to raise this claim.
A double whammy
Before English courts, where the UK enjoyed no immunity, it was the application of choice of law rules that ultimately prevented the claimants from making their claims. Thus, the claimants were subjected to two sets of procedural bars resulting in a manifest denial of justice.
More specifically, as the alleged injury occurred in Iraq, it was uncontentious that the law of Iraq would determine the substantive question whether the tort was indeed committed. The key question on appeal was whether procedural Iraqi laws providing for restrictive limitation periods of three years should have been applied in English courts as well. Notably, under article 232 of the Civil Code, the standard limitation period applicable to claims of this kind in Iraqi law is “three years from the day on which the claimant became aware of the injury and of the person who caused it” (at para. 6).
Here, the claim was brought after the limitation period expired. Thus, in the words of the Supreme Court: “The question which arises on this appeal is how the Act is to be applied in a case where the foreign limitation law depends for its operation on facts which are not germane to litigation in England” (at para. 8).
The Supreme Court commenced its short analysis by stating that (at para. 1):
English private international law distinguishes between matters of substance which are governed by the proper law of the relevant issue (lex causae), and matters of procedure which are for the law of the forum. The distinction was preserved when the English principles relating to the choice of law were amended and partly codified by the Private International Law (Miscellaneous Provisions) Act 1995… Limitation, which deprives the litigant of a forensic remedy but does not extinguish his right, is for that reason classified by the English courts as procedural. The result was that until the position was altered by statute in 1984, the English courts disregarded foreign limitation law and applied the English statutes of limitation irrespective of the lex causae. This was widely regarded as unsatisfactory, mainly because of the rather technical character of the distinction on which it was based between barring the remedy and extinguishing the right.
At para. 2 of the judgment, the Supreme Court went on to point to section 1 of the Foreign Limitation Periods Act 1984 (the “1984 Act”) which provided for the English courts, with limited exceptions, to apply the limitation rules of the lex causae or the place where the cause arose. As the cause arose in Iraq, the court decided that procedural legal questions, including that of limitation periods were to be determined according to Iraqi law. Interestingly, Iraqi law did indeed provide exceptions or excuses for non-compliance with limitation periods in cases where there was an impediment “rendering it impossible for the plaintiff to claim his right” (at para. 7, where the court cites Article 435 of the Civil Code). The claimants argued that The Order, providing for State Immunity was just such an impediment (at para. 8).
While the court at first instance decided in the claimants’ favour given the absence of the jurisdiction of Iraqi courts, accepting evidence that “an Iraqi court would construe article 435 of the Civil Code as referring to impediments making it impossible for the claimant to assert his claim in Iraq” (at para. 9), the Court of Appeal decided against the applicants; encapsulating the Court of Appeal’s views at para 10), the Supreme Court stated:
[A]n English court was bound to disregard any impediment arising from CPA Order 17. This was because that order was not a law with respect to limitation which the English courts were bound to apply by sections 1(1) and 4 of the 1984 Act. Nor was it a substantive rule of Iraqi law which applied by virtue of the ordinary principles of English private international law. It was a mere procedural bar to proceedings in Iraq which had no relevance in an English court.
In endorsing the decision of the Court of Appeal, albeit on a somewhat different basis, the Supreme Court went on to say at para. 11:
The Court of Appeal was of course right to say that CPA Order 17 had no legal effect in an English court. It expressly confers immunity only in respect of Iraqi legal process. It is not a rule of limitation, but a particular form of state immunity, which serves as a limitation on the jurisdiction of the courts. It is therefore necessarily procedural and local in nature. It is inherent in the whole concept of state immunity that it does not confer immunity on a state in its own courts. However, although CPA Order 17 is devoid of legal effect outside Iraq its consequences may nonetheless be relevant as fact. It is as fact that those consequences affect the operation of article 435 of the Civil Code. The question posed by that article is whether CPA Order 17 was as a matter of fact an “impediment rendering it impossible for the plaintiff to claim his right. “Impediment” and “impossibility” are questions of fact. This is no less true because the impediment is the consequence of a rule of Iraqi law.
In reasoning that is somewhat difficult to grasp, the Supreme Court stated that the “impediment” referred to in Article 435 of the Civil Code was not of a character that encompassed circumstances where there was an absence of jurisdiction, but “something that prevents the litigant from asserting some right that he has or from invoking some jurisdiction that the court has” (at para. 12). There is no discussion of expert evidence in relation to the scope of Article 435, so the basis on which the Supreme Court reached its conclusions is unclear. In any event, the Supreme Court gave a narrow definition to the word “impediment”. Arguably, the procedural bar of immunities could very well fall within the scope of Article 435. As there is very limited discussion of the scope of Article 435 in the Supreme Court’s judgment, one cannot convincingly determine whether the court’s’ understanding of Iraqi law reflects what the law actually is or should be in a factual sense. It would have been useful for the court to expand on the basis on which it transposed Iraqi law in such a narrow manner. Indeed, such an analysis, if comprehensively undertaken, could have led to a different outcome.
This is a case where the claimants were denied justice because of the operation of two procedural bars, one belonging to the public international law sphere, and the other to private international law. This is a classic example of the confluence of public and private international law concepts, raising difficult analytical questions. Overall, the Supreme Court’s decision may be questioned for a lack of rigour concerning its evaluation of questions of foreign law, i.e., the scope of Article 435 of the Iraqi Civil Code, but also because of the lack of discussion of State Immunity principles. The point of State Immunity is that one sovereign may not be sued before the courts of a foreign court. Leaving aside whether immunity should exist for the commission of a tort, on the facts, English courts were arguably the only forum available to the claimants.
Aside from the conceptual issues at play, the lessons to be drawn are that consideration must be given to better reflecting the law of State Immunity in international instruments and implementing legislation, as well as considering how access to justice should impact issues of private and public international law in such cases.
*Rishi Gulati is an Australian Barrister, a Dickson Poon Scholar of Law at King’s College London and an Academic Expert at Bretton Woods Law. Matthew Nelson is an Australian Lawyer and Masters Candidate, University College London.