Amin v Brown

An enemy national resident in an enemy state is generally unable to sue in the English courts during a technical state of war, unless licensed by the Crown. That disability derives from the traditional law of war and public policy. It does not extend automatically to modern armed conflict where no technical state of war exists. Whether a state of war exists is principally a matter for the executive, whose position is conclusive in the courts. The policy against enriching an enemy resident may be addressed by specific sanctions legislation.

The claimant, an Iraqi national resident in Iraq, claimed relief concerning English property registered in her name. The defendant argued on a preliminary issue that she lacked standing because she was an enemy alien, contending that the United Kingdom had been at war with Iraq since the 2003 military intervention. He also relied on alleged enemy-property and trading-with-the-enemy consequences.

The central question was whether the military operations in Iraq constituted a technical state of war for the purposes of the English law disability affecting enemy aliens.

1. Preliminary issue allowed. The claimant was entitled to pursue the proceedings. The court would hear argument on the form of order if it could not be agreed.
2. Under the traditional English rule, an enemy national voluntarily resident in the enemy state has no right of access to an English court as claimant or other actor during a war, unless licensed by the Crown. A British citizen or neutral voluntarily resident in the enemy country may also be treated as an alien enemy. Exceptions exist for persons living in England under the King’s licence and protection.
3. The rule is based on public policy: the courts should not assist proceedings which would enrich an enemy and thereby tend to provide resources to the enemy state. That policy rationale does not justify extending the disability beyond the circumstances for which the rule was established.
4. English law recognises no intermediate condition between peace and war. Whether a state of war involving the United Kingdom has begun or ended is essentially a matter for the executive. A certificate or authoritative position of the Crown on that issue is conclusive and binding on the court.
5. The meaning of war can vary with context. Kawasaki Kisen Kabushiki Kaisha of Kobe v Bantham Steamship Co [1939] 2 KB 544 concerned construction of a charterparty and did not define war for general purposes of English municipal law.
6. The Government’s position was that there had been no state of war between the United Kingdom and Iraq. The military operations were authorised by Security Council resolutions and the conflict had ended before these proceedings began. The disability therefore did not apply. Any public-policy concern about enrichment was addressed by the Iraq (United Nations Sanctions) Order 2000.