Thursday, July 27, 2006

English Court to Hear Challenge on Legality of Iraq War

The English Court of Appeal yesterday granted permission to claim judicial review in R (Gentle & Ors) v Prime Minister & Ors [2006] EWCA Civ 1078, allowing the claimants to argue before it that the Iraq war was illegal under international law.

The claimants are all relatives of British soldiers killed in Iraq. They argue that the United Kingdom is responsible for the deaths under Article 2 ECHR (the right to life). Accordingly, they request a public inquiry into the deaths, in accordance with the procedural duty to conduct such an inquiry under said Article 2 (see e.g. McKerr v United Kingdom, at para. 111). They further request that such an inquiry should also look into the legality of the Iraq war as such, under the international jus ad bellum.

There are a number of difficulties with this argument:

First, did the fatalities fall within the jurisdiction of the United Kingdom, as required by Article 1 ECHR? The answer to this is little short of ingenious: the United Kingdom is said to be responsible for the soldiers’ deaths because it sent the young men to Iraq, thus exposing them to the risk of being killed, contrary to its Soering-type obligation to protect the men from such risks (on Soering as a case of a ‘duty to protect’, albeit a negative one, see Limbuela v Secretary of State for the Home Department [2004] EWCA Civ 540, [2004] QB 1440, at para. 64).

Of course, this kind of reasoning could spell disaster for European states, if the simple act of sending soldiers to a region in crisis could be said to involve, without more, a violation of the soldiers’ human rights (of course, as the judge at first instance rightly noted, ‘so-called floodgate arguments are not particularly persuasive in most cases’: [2005] EWHC 3119 (Admin), at para. 32, per Collins J). But perhaps we don’t have to resort to arguments such as the voluntary nature of military service as a waiver of human rights, or similar slippery slope points.

This is because, attractive though this reasoning is, it is not without its own constructive problems: thus, it is as yet unclear whether the Soering-rule, developed in an Article 3 case, applies also to Article 2 (but see the hints in Kareem v Sweden). Also, can it really be said that there is a ‘real risk’ of being killed for a soldier on embarking on a tour of duty? For one thing, the risk may be, while certainly present, not sufficiently grave; for another, the risk may be one common to everyone in the area (and therefore irrelevant to the Soering claim, at least according to Vilvarajah v United Kingdom, at para. 111).

The next difficulty for the claimants lies in the question why the legality of the Iraq war as such should be a matter for decision under the Article 2 claim.

Assuming that the Soering argument does hold water, Article 2 includes no requirement to the effect that any infringement of the right must be covered by lawful authority. Accordingly, the fact that the act of sending soldiers to fight in Iraq may itself have been in violation of international law, and thus unlawful, is nothing to the point.

The claimants therefore refer to Article 15 ECHR, which governs derogations from Article 2 in times of war, and provides in paragraph 2 that such derogations are impermissible ‘except in respect of deaths resulting from lawful acts of war’ (my emphasis). They argue that this refers back to the international rules governing the lawfulness or otherwise of the use of force (Article 2(4) of the UN Charter, and the corresponding rule of customary law).

However, the expression is not ‘resulting from lawful war’, it is ‘resulting from lawful acts of war’. This, like the fact that the ECHR deals with the rights of individuals, not of states, strongly suggests that the reference is to the rules of humanitarian international law governing the lawfulness or otherwise of killing in war (the jus in bello), not the legitimacy of waging war in the first place (the jus ad bellum).

In sum, I would agree with Julian Ku at Opinio Juris that the claim is based on a rather far-fetched argument.

But the claim also faces another very serious obstacle, in the shape of the English rules on justiciability: while there is no general political question doctrine, there are other rules occupying similar ground. Thus, Lord Bingham of Cornhill has explained in R v Jones (Margaret) [2006] UKHL 16, [2006] 2 WLR 772, at para. 30, in a passage that could have been tailored to the present case:

'Resolution of the charge would (...) call for a decision on the culpability in going to war either of Her Majesty's Government or a foreign government, or perhaps both if the states had gone to war as allies. But there are well-established rules that the courts will be very slow to review the exercise of prerogative powers in relation to the conduct of foreign affairs and the deployment of the armed services, and very slow to adjudicate upon rights arising out of transactions entered into between sovereign states on the plane of international law.' [There follow extensive citations of authority]

This rule is, of course, subject to any rule of domestic law requiring adjudication even in the face of such circumstances (see Republic of Ecuador v Occidental Exploration and Production Co [2005] EWCA Civ 1116, [2006] 2 WLR 70, at paras. 31 et seq.), but, as I have attempted to show above, the Human Rights Act in this case requires nothing of the kind.

The claim would therefore appear to be certain to fail. Indeed, the Court of Appeal was at pains yesterday to stress that it did not grant permission to pursue the case because it saw any ‘real prospect of success’ (one of the two grounds under CPR 52.3(6) for granting permission); it granted permission only because the case raised questions of general importance and there was therefore ‘some other compelling reason why the appeal should be heard’ (the other ground). The Court also said (at para. 22):

‘We stress that, although we have decided to grant permission, we see formidable hurdles in the way of the applicants and do not wish to encourage them to think that they will succeed.’

In my view, the Court was quite right to add this warning.

Still, the hearing will certainly be interesting. If anyone reading this will be in London in November, I recommend going to the Royal Courts of Justice to hear this sustained legal attack on the decision to go to war in Iraq.

P.S.: It is also an unusual feature of this case that the application for judicial review will be heard not by the High Court, but by the Court of Appeal itself. Moreover, in a pointer to the importance of the case, the Court of Appeal will sit in a rather prominent constitution, being composed of Sir Anthony Clarke, the Master of the Rolls and Head of Civil Justice, Sir Igor Judge, the President of the Queen’s Bench Division, and Lord Justice Dyson.