Theresa May recently warned against what she described as an “industry of vexatious allegations” against British troops, arising out of their conduct in the Iraq war. As well as the wide range of claims arising out of operations in Iraq, the UK Government is also engaged in hard-fought litigation arising out operations in Afghanistan: the case of Serdar Mohammed was heard by the Supreme Court in February, May and October 2016, alongside Al-Waheed v Ministry of Defence.
Allegations about an “industry of vexatious allegations” make it sound as though such cases are easy to bring. But Serdar Mohammed and Al-Waheed – arising out of detention by British forces in Afghanistan and Iraq respectively – demonstrate the complexity of the issues which litigants face when seeking redress for British military action abroad. Together, the cases raise the question of the application of the ECHR to the conduct of British troops abroad (also recently examined by the English courts in the case of Kosovo), and the relationship between the ECHR and international humanitarian law.
Framing the issue in private law terms
These are the complex questions of human rights and public international law which one would expect to arise in such cases. These issues arise where the claim is framed in public law terms, as a breach of the ECHR. But what if the claimant frames his or her claim for loss of liberty or physical mistreatment as a tort claim instead? Then private international law becomes the focus of inquiry, and the basis of the English court’s jurisdiction must be established in those terms.
Framing such claims in purely private law terms brings its own challenges.
This might seem to be a straightforward way of avoiding some complex public international law debates, putting a claimant in a military case in the same position as any other person seeking to found a tort claim on acts carried out abroad.
However, the latest Supreme Court development in this area, in the case of Ministry of Defence (Respondent) v Iraqi Civilians (Appellant)  UKSC 25, shows that framing such claims in purely private law terms brings its own challenges.
The Iraqi Civilians case
The case was brought by 14 lead claimants out of a group of 600, all Iraqi citizens with claims against the Ministry of Defence for loss of liberty or physical mistreatment by British forces during the Iraq conflict. But what law applied: the law of Iraq or the law of England?
As Lord Sumption explained, in a short judgment with which the rest of the Court agreed, this of course depends on the nature of the issue in question:
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: see section 14(3)(b). Limitation, which deprives the litigant of a forensic remedy but does not distinguish 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. The Foreign Limitation Periods Act 1984 provided for the English courts, with limited exceptions, to apply the limitation rules of the lex causae.
The parties agreed that the substance of the tort claims was governed by Iraqi law. Under the Foreign Limitation Periods Act 1984, the question of limitation was also governed by Iraqi law – which provides, by article 232 of the Civil Code, a three year limitation period for such claims, running from the date of knowledge of the injury and of who caused it. If that were to apply, the vast majority of the claims were out of time. The complication arose from the fact that article 435 of the Civil Code provides for the suspension of the three-year time limit in a range of circumstances, including where there is an “impediment rendering it impossible for the plaintiff to claim his right.”
This is where the military context becomes relevant. Under Coalition Provisional Authority Order 17 (CPAO 17), which remains in force in Iraq, coalition forces including British forces are “immune from local criminal, civil and administrative jurisdiction” other than in respect of claims brought by persons acting on behalf of their States.
The parties agreed that CPAO 17 made it impossible for the claimants to bring their tort claims against the British forces in the courts of Iraq. Were the order to be rescinded then they would, presumably, have a good argument that the order had made it impossible for them to claim their right, thus suspending the limitation period by reason of article 435. But the claimants were not claiming in Iraq: they were claiming in England, to which CPAO 17 did not apply. And the parties agreed that there had never been any “impediment” to the claimants bringing their claim in England.
The Court’s reasoning
So, as Lord Sumption put it, “The question which arises on this appeal is how the [Foreign Limitation Periods Act 1984] 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.”
Leggatt J decided the question in favour of the claimants; the Court of Appeal allowed the appeal. Lord Sumption considered that the Court of Appeal had reached the correct result. He took the view that:
Where the cause of action is governed by a foreign law, the Act requires an English court to ascertain the relevant rules of the foreign law of limitation and then to apply it to proceedings in England. Because the foreign law of limitation will have been designed for foreign proceedings, that necessarily involves a process of transposition. 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.
He considered that, applying this approach, the English court had to look at the facts “applicable to the actual proceedings, viz 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.” On this analysis, CPAO 17 was not a relevant fact because it had never been an impediment to the claimants bringing their claims in England.
The claimants had argued that such a position would amount to disapplying Iraqi law. Lord Sumption considered that the Court’s approach “simply involves applying the same principles of Iraqi law to different facts. The facts relevant to proceedings in England are not necessarily the same as those facts which would be relevant to proceedings in Iraq.”
Artificial or irrational?
As with many aspects of private international law, the process of transposing foreign limitation periods to English law can lead to results which are highly artificial. This is a case where any result would have contained an element of artificiality, given the nature of the exercise. For Leggatt J, the result reached by the Supreme Court would have gone beyond artificiality and entered the territory of the “irrational”. Not so for the Supreme Court – Lord Sumption’s seven-page judgment cites no authority and treats the difficult exercise of transposition as leading, in this case, to a self-evident result. The crucial step in the Court’s reasoning was to define the English court’s task as to decide how the Iraqi court would have applied article 435 to proceedings brought in England. This made CPAO 17 wholly irrelevant. This may be the correct result, but it is certainly not self-evident, and it would have been helpful to see a fuller analysis of the issue.
What is clear is that, contrary to the Prime Minister’s rhetoric, such cases are not easily brought, and will continue to test the boundaries of both private and public international law.