Extra-territorial claims in the “spider’s web” of the law? Supreme Court judgment on Iraqi Civilians appeal

Ministry of Defence (Respondent) v Iraqi Civilians (Appellant) [2016] UKSC 25

Ever since the case of Al Rawi v Secretary of State for Foreign and Commonwealth Affairs [2008] QB 289, and the Binyam Mohamed case, the direction of travel of jurisprudence by English Courts left behind an earlier position that considered UK foreign affairs a non-justiciable area, and shifted towards scrutiny of the impact of UK foreign policy decisions on individuals.  After all, as it was put by Lord Sumption, in an address at the LSE 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”).

Yet, in a broader spectrum of cases, jurisdictional issues (ratione temporis) and time bars are proving to be hurdles on the path of claimants bringing extra-territorial claims before the highest court of the land. It was so in the recent Supreme Court decision Kayu v Secretary of State for Foreign and Commonwealth Affairs (“Batang Kali massacre“) [2015] UKSC 69 in the form of a temporal jurisdictional obstacle. It is so again in the Supreme Court’s 12 May 2016 decision in Ministry of Defence v Iraqi Civilians [2016] UKSC 25 (“The Iraqi civilians case”) 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 of the ECHR imposes on the UK in the context of inquiries) the decision in the Iraqi civilians case concerns 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 (claims had been brought 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, were time-barred. It dismissed the appeal. This post addresses the central finding in the case.
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