R (Gentle) v Prime Minister [2006] EWCA Civ 1689; [2007] QB 689

KEY POINTS

• The right to life is a basic human right, guaranteeing that every individual is protected from arbitrary death. It is essential for enjoying other rights and requires states to take measures to prevent unlawful loss of life.

• States must investigate deaths that occur under suspicious or potentially unlawful circumstances. This duty ensures transparency, accountability, and the protection of human rights, requiring thorough and impartial inquiries.

• The deaths of servicemen during the UK invasion of Iraq need careful examination to ensure they meet legal and ethical standards. This scrutiny is vital for upholding accountability and ensuring compliance with international laws.

• Independent Inquiry into Decision as to Lawfulness of Invasion of Iraq

• International conventions may require an independent inquiry into the legality of military actions, like the Iraq invasion, to ensure they comply with human rights standards and to hold states accountable for potential rights violations.

• The Human Rights Act 1998 incorporates the right to life into UK law, mandating that the state uphold human rights standards by protecting and investigating deaths under its jurisdiction.

FACTS

• Rose Gentle and Beverley Clarke (“Claimants”), mothers of two servicemen killed while serving with the British armed forces in Iraq between March 2003 and June 2004, sought judicial review following the defendants' refusal to conduct a separate independent inquiry.

  • The inquests planned would investigate the circumstances of the deaths.

  • Still, the Claimants argued for an additional inquiry into whether the UK Government had reasonably ensured the legality of the Iraq invasion under international law (the "invasion question").

  • They contended that Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms, incorporated into UK law by the Human Rights Act 1998, imposed a substantive obligation on the Government to verify the legality of military activities and, therefore, a procedural obligation to investigate deaths if the Government was potentially in breach of this obligation. 

• While the Claimants acknowledged that Article 2 did not require an investigation into the lawfulness of the invasion itself, they asserted that the Government had a duty to initiate an effective public investigation into the deaths if it was arguably in breach of its obligations under Article 2.

JUDGEMENT

• The Claimants' argument was rejected as, in the absence of the Human Rights Act 1998 and the Convention, the legality of the United Kingdom's decision to send its armed forces to Iraq was not justifiable.

  • This matter involved evaluating international instruments such as United Nations Security Council resolutions and policy decisions related to foreign affairs and defence, which were exclusively the domain of the executive government.

  • Similarly, the court could not properly order an inquiry into whether reasonable steps had been taken to assess the lawfulness of deploying troops to Iraq.

• Although principles of international law influenced the interpretation of the Convention, they were not directly incorporated into it.

  • The Convention focused on domestic rights and upheld the separation of powers, including areas of policy decisions reserved for the executive. 

• Article 2 of the Convention did not impose an obligation on the Government, justiciable in England, to ensure that military operations were lawful under international law.

  • Decisions about the legality of military actions were policy matters for the state, not the courts.

  • Consequently, Article 2 did not require the Government to establish an independent inquiry into the legality of the Iraq invasion.

  • The Claimants failed to prove that the Government was arguably in breach of Article 2 and were not entitled to the inquiry they sought.

• The claim was dismissed. 

COMMENTARY

• The case represents a significant exploration of the boundaries of Article 2 of the European Convention on Human Rights (ECHR) concerning states' obligations to investigate deaths arising from military actions and related policy decisions.

• The decision sets a precedent for the scope of Article 2 and the limits of judicial intervention in matters of international policy.

  • The potential appeal by the claimants, granted leave by the House of Lords, suggests ongoing legal debate and the possibility of further judicial clarification.

  • This case will likely influence future discussions on the interplay between human rights obligations and state sovereignty, particularly in the context of military actions and international law.

• The court's distinction between legal obligations and policy issues is important.

  • The decision shows that Article 2 does not extend to questions of policy or international legality, which fall within the executive's domain.

  • By emphasizing that the ECHR does not contemplate inquiries into broader policy decisions, the court reinforces the separation of judicial and executive functions.

  • This demarcation is significant in maintaining the balance of power within a constitutional framework, ensuring that judicial bodies stay within their role in areas traditionally governed by political processes.

• This case exemplifies the interplay between human rights law and state policy, delineating the boundaries of judicial oversight in the context of international military actions and national policy decisions.

  • The court’s decision, while firmly rooted in legal principles, also reflects a deep awareness of the broader implications for governance and the separation of powers.

ORIGINAL ANALYSIS

• Two women whose sons died in Iraq claimed that under Article 2 of HRA 1998, which states that a government should not send service personnel to their death for an unlawful reason (rough paraphrase), the investigation into their sons’ deaths ought to have considered whether the war in Iraq was lawful.

CA

• Questions of international (or any non-English) law are NOT JUSTICIABLE under judicial review.