Tuesday, January 16, 2007

English Court Refuses Challenge to Legality of Iraq War

As I mentioned in an earlier post, the English Court of Appeal (the second highest court in England and Wales, after the House of Lords), has agreed to hear a case effectively challenging the legality (in public international law) of the last Iraq war. The hearing has been held in November, and judgment was delivered on 12 December 2006 (I apologise for reporting this only now; other duties intervened). The case is R (Gentle & Ors) v. The Prime Minister [2006] EWCA Civ 1690.

The applicants in the case were all relatives of British soldiers killed in Iraq, and requested an investigation into their sons’ deaths. This is, as such, nothing extraordinary, and certainly nothing the government would be worried about. In fact, there was no question that an ordinary coroner’s inquest would be held, to find out ‘by what means and in what circumstances’ (see R (Middleton) v. West Somerset Coroner [2004] UKHL 10, [2004] 2 AC 182, para. 35) the soldiers had lost their lives.
But the applicants’ request was rather broader than that, and much more worrisome for the government. They requested that the purview of the inquest be extended to cover also ‘the question whether the government took reasonable steps to be satisfied that the invasion of Iraq was lawful under the principles of public international law’ (para. 3 of Gentle).
The applicants’ argument was basically in two parts:
- There was a procedural obligation under Article 2 ECHR to investigate the circumstances of any death occurring in circumstances where the substantive provisions of Article 2 on the State’s negative and positive obligations with respect to the life of persons under its jurisdiction may have been violated. This much was not contentious, and is quite clearly correct (see again Middleton, supra, para. 3, citing a wealth of European jurisprudence).
- One of these positive obligations with respect to a person’s life was that the State could not send its soldiers into battle unless it had ascertained previously that the battle was in accordance with international law.

This second submission was, of course, contested by the government’s side, and was rejected by the Court of Appeal (it was also, incidentally, very much doubted by yours truly, if partly on other grounds).

The Court began by saying that any claim for judicial review challenging the lawfulness of going to war would ordinarily be bound to fail, as it would take the courts into a ‘forbidden area’, that of the most highly political, and least (domestically) legally controllable, decisions under the Royal prerogative. However, the Court also recognised that the rules of justiciability could not prevent the courts from giving effect to a Convention right.
The question was therefore only whether there was an obligation under Article 2 ECHR not to wage war unless one is sure that the war will be in accordance with international law. The Court accepted, however, that the obvious non-justiciability of the question, as apparently more or less recognised by all member States of the Council of Europe, did present an argument against the existence of the Convention obligation.

The Court held that there was no such obligation. The obligation to make sure that a war was lawful could not be divorced from the much broader question whether it was politically and militarily desirable, but the applicants had clearly disavowed any support for such a broad rule. The question, and with it the question of the legality of a war, was one of policy and within the sole discretion of the State. This was supported by European and domestic authority (with which I will burden this post), whereas the applicants’ position was not.

The Court did not address the further question whether the deaths had occurred ‘within the jurisdiction’ (Article 1 ECHR) of the UK, except in noting very briefly that there was ‘much to be said for the conclusion that the principles in Soering [i.e. the prohibition of sending someone to a place where he or she would run a real risk of subjection to treatment (grossly) contrary to Convention standards] should apply to article 2 as they do to article 3’ (para. 82 of Gentle).

The judgment in Gentle is far from adventurous, but its outcome is clearly correct. It is only a little curious that the Court does not begin to go into the fairly fundamental question why the legality of the Iraq war should have anything to do with the positive obligation of protection that a State owes all persons under its jurisdiction, including its soldiers. As I mentioned in my earlier post, there is no requirement in Article 2 ECHR that any killing be lawful; much less is there a requirement that every State action exposing individuals to a real risk of being killed be lawful. The question here is whether there exists such a real risk, not whether the law (any law) allows the State to take such a risk.
The Court is therefore quite right to say that any obligation of ascertaining the legality of a war would be bound up with the further question of the military advisability of going to war, but this is not due only to the specific circumstances of the government’s examination of the law in this case. Rather, if the Soering-type obligation under Article 2 ECHR did apply, it would surely prevent the deployment of soldiers also where a lawful military campaign created a ‘real risk’ (a relatively high standard) of being killed for the soldiers.
It may appear, as a practical matter, that this consequence will never be drawn judicially. But it may also be mistaken in principle, simply on the grounds that the standard of the ‘real risk’ is too high to ever be achieved in the context of military operations. After all, the standard would have to be met for every soldier individually, so as to prevent his or her deployment. The circumstances of military action will hardly ever be so grim as to force the conclusion that either every soldier, or every one of a given group of soldiers, or one specific soldier, will run a real risk of not returning.
And even if circumstances should be so grim, the State could always enter a derogation under Article 15 ECHR. To be sure, this is limited for Article 2 to a derogation for killings allowed under humanitarian international law (Article 15(2) ECHR; see my earlier post), but the latter body of law does not prevent the killing of soldiers fighting in an armed conflict.
Of course, all this is before we even come to the argument that a soldier necessarily consents to being put in situations of extreme danger, and that he or she therefore waives the Article 2-Soering-right. The waiver argument is rarely very attractive in human rights law, allowing for all sorts of slippery-slope arguments, but it may be acceptable in the present context. If the State was prevented from exposing anyone to a danger of death, regardless of that person’s consent, all kinds of emergency services would face a very real problem (and the consenting person’s autonomy, surely the linchpin of all human rights, would be rather ignored).


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