Judgments - R (on the application of Gentle (FC) and another (FC)) (Appellants) v The Prime Minister and others (Respondents)

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21.  The argument that the guarantee in article 2(1) was arguably breached in the cases of Trooper David Clarke and Fusilier Gordon Gentle is deceptively simple. It is accepted that in neither case was the immediate cause of death the action or failure of state agents. So the guarantee is not engaged in that sense. But Mr Singh says that a substantial and operative cause of their deaths was the respondents’ failure to take steps to ensure that the invasion was lawful before committing troops to action. Otherwise, he says, the invasion would not have taken place and the deceased would not have been exposed to the risk of death in Iraq. This is because the then Chief of the Defence Staff, Admiral Boyce, said that he would not commit British troops to the invasion unless he received unequivocal advice from the Attorney General that it would be lawful. Advice to that effect was communicated to him on 14 March 2003. But, says Mr Singh, the circumstances in which that advice was provided call out for an explanation, and an explanation has never been given. An inquiry may show that the advice was incorrect or that there was no proper basis for it. If so, the conclusion he invites is that the troops would not have been committed to the invasion at all.

22.  This argument, simple as it is, does not stand up to examination. Crucially, the issue as to the legality of the invasion in international law has nothing to do with the state’s obligation under article 2(1) of the Convention to protect the servicemen and women within its jurisdiction. When the Chief of the Defence Staff insisted on receiving unequivocal advice that the invasion would be legal he was not thinking of the physical risks that his troops would be exposed to. His concern was that, if it was not legal, they might be at risk of being prosecuted. As Lord Kingsland said in the debate I have already mentioned, the issue is essentially one of morale: Hansard (HL Debates) vol 698, col 790. An individual soldier needs to know that he will not be prosecuted for a war crime.

23.  The International Criminal Court Act 2001 gave effect in domestic law to the Rome Statue of the International Criminal Court. It has raised awareness of the need to ensure that armed conflict takes place within the established framework of international law: see also the International Criminal Court (Scotland) Act 2001, asp 13. The definition of war crimes in article 8 of the Rome Statute, which is reproduced in Schedules 8 and 1 of these Acts respectively, is very wide. Much depends on the laws and customs applicable in international armed conflict. Rules of engagement can only go so far. The umbrella of an assurance that the conflict is lawful in international law is essential if soldiers are to feel confident that it is an operation that they can properly engage in. This is so too of their commanders, who under section 65 of the 2001 Act are responsible for the acts of their subordinates.

24.  The question whether the invasion was lawful was, without doubt, of cardinal importance to the decision whether it was proper to commit British troops to the invasion. But it was no more relevant to the article 2(1) Convention right of each individual than the question whether it had the approval of the Cabinet or of Parliament. And there is a further objection. The issue of legality in this area of international law belongs to the area of relations between states. Article 2 of the Charter of the United Nations declares that the organisation and its members shall act in accordance with the principles that it sets out. The third of these principles is:

“All members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.”

Application of the guidance that this principle offers in the conduct of international relations between states is a matter of political judgment. It is a matter for the conduct of which ministers are answerable to Parliament and, ultimately, to the electorate. It is not part of domestic law reviewable here or, under the Convention, in the European Court at Strasbourg.

25.  Mr Singh submitted that international law was not irrelevant to the Convention rights of a decision by the state to expose individuals to the risk of serious harm. In modern administrative law, he said, there were no no-go areas that could never be inquired into. The principle was one of judicial restraint, not abstention: Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) [2002] UKHL 19, [2002] 2 AC 883, para 140. He referred to article 15(1) which permits a contracting party to take measures derogating from its obligations under the Convention provided, among other things, such measures are not inconsistent “with its other obligations under international law". Other references to international law are to be found in article 7, article 26 and article 1 of Protocol 1. But in Bankovic v Belgium (2001) 11 BHRC 435, para 62, the European Court said that article 15 itself was to be read subject to the “jurisdiction” limitation in article 1 of the Convention. It is concerned with the setting of minimum standards in the domestic legal order, not with the conduct of international relations between states. Furthermore, as Mr Sumption QC pointed out at the outset of his argument, one must be careful to distinguish between cases where the question is whether judicial restraint ought to be exercised and cases where the matter at issue is legally irrelevant. In this case the question of international law falls into the latter category.

26.  Mr Singh sought to overcome these difficulties by comparing this case with R v Secretary of State for the Home Department, Ex p Launder [1997] 1 WLR 839. In that case the Secretary of State said that he had taken account of the applicant’s representations that his extradition to Hong Kong would be a breach of the (then unincorporated) European Convention on Human Rights in reaching his decision that the applicant should be extradited. At p 867E-F I said that, if the applicant was to have an effective remedy against a decision which was flawed because the decision-maker had misdirected himself on the Convention which he himself said he took into account, the House should examine the substance of the argument. But the context in which I made that observation was a case where the Secretary of State was dealing with the applicant’s rights under domestic extradition law. He chose to do this by reference, among other things, to the Convention. If he misunderstood its provisions he was, according to the ordinary principles of domestic law, reviewable. Here the Attorney General was not dealing with rights or obligations in domestic law when he was considering what international law had to say about the legality of the invasion. The only question he was concerned with was whether the invasion was lawful in international law. That question as such is not, as Mr Singh accepts, reviewable in the domestic courts. Nor can it be linked to the state’s obligations under article 2(1). The Attorney General did not say, when he was considering the issue of legality, that he was addressing his mind to the Convention rights of the troops for whom the Chief of the Defence Staff was responsible.

27.  In this situation Mr Singh’s argument does not get over the first hurdle that he set for himself - that there was arguably a breach of the substantive obligation in article 2(1) to protect life. Had he done so, he would have faced further difficulties when he reached the second hurdle - whether the procedural obligation requires that there be an inquiry into the circumstances that he says ought to be inquired into. The question that he seeks to raise is one that falls well outside the matters that should be investigated if a death occurs where the substantive obligation has or may have been violated which were identified in R (Middleton) v West Somerset Coroner [2004] 2 AC 182, para 3; see also Bubbins v United Kingdom (2005) 41 EHRR 458, para 105. This is not to say that the question is unimportant. But an inquiry of that kind cannot be used for continuing the intense public and political debate that these tragedies and other similar cases have given rise to ever since the invasion took place.

28.  As I said at the outset, it is not possible to link the request for an inquiry to the Convention right on which the application is founded. There is no escape from the conclusion that the issue which these applications seek to raise is unarguable. For the reasons given by my noble and learned friends Lord Bingham of Cornhill, Lord Hoffmann and Lord Rodger of Earlsferry whose speeches I have had the opportunity of reading in draft and with which I entirely agree, and for these further reasons of my own, I would dismiss the appeal.

LORD SCOTT OF FOSCOTE

My Lords,

29.  Having had the privilege of reading in advance the opinions prepared by my noble and learned friends Lord Bingham of Cornhill and Lord Hoffmann I find myself in complete and respectful agreement with the reasons they have given for dismissing the appeal in this sad case. I would like particularly to associate myself with the comments made by Lord Bingham in the final three sentences of paragraph 9 of his opinion. There is nothing I can usefully add and I, too, would dismiss this appeal.

LORD RODGER OF EARLSFERRY

My Lords,

30.  The appellants are the mothers of two British soldiers who were killed in Iraq. Mrs Clarke’s son, Trooper David Clarke, was killed on 25 March 2003 by a shell from a British tank, while Mrs Gentle’s son, Fusilier Gordon Gentle, was killed by a roadside bomb on 28 June 2004, the very day on which the British occupation of Iraq ended and sovereignty passed to the Iraqi Interim Government. While no inquest into the death of Trooper Clarke was possible, an inquest was held into the death of another soldier who had been killed in the same incident. In July 2007, the narrative verdict of the coroner at the end of that inquest, containing criticisms of what had happened, covered the circumstances of Trooper Clarke’s death. In November 2007 the coroner in the inquest into the death of Fusilier Gentle returned a narrative verdict criticising the lack of certain equipment. These inquests clarified the circumstances surrounding the deaths of the two soldiers.

31.  The appellants want a further public inquiry, not into the immediate circumstances of their sons’ deaths, but into the legality of the decision of the Government to go to war with Iraq. They petitioned for leave to appeal to this House on the basis that an appeal would present “the best opportunity for [the] most anxious question [the legality of the war on Iraq] to be the subject of judicial consideration.” In fact, however, the issue canvassed in the appeal was quite different.

32.  At the hearing, counsel for the appellants did not suggest that the decision to invade Iraq was unlawful in domestic law terms. Nor did he ask the House to decide whether it was unlawful under international law. It would therefore be improper for your Lordships to express any view, whether expressly or by implication, on the legality of the invasion of Iraq.

33.  What Mr Singh QC submitted was this. He argued that article 2 of the European Convention on Human Rights and Fundamental Freedoms (“the Convention”) gives the appellants a right to have a public inquiry into the steps by which the Government reached the view that it would be lawful, under international law, to invade Iraq - and, so, decided to participate in the invasion in which their sons were killed. More particularly, he submitted that, in return for British soldiers risking their lives, the Government had to take all reasonable steps to satisfy itself of the legality under international law of the military action in which they would have to fight. The Government had failed to exercise “due diligence” in that regard. Had it done so, arguably, it would have concluded that an invasion would be unlawful. In that event the Government would not have participated, and Trooper Clarke and Fusilier Gentle would not have been killed. Arguably, therefore, there had been a breach of the Government’s substantive obligation under article 2 to protect the lives of Trooper Clarke and Fusilier Gentle. In these circumstances article 2 required the Government to set up an independent public inquiry into the steps by which ministers had reached the conclusion that it would be lawful to invade Iraq.

34.  In fact, an inquiry with that remit would almost certainly miss the real target of the appellants’ complaint and their real aim in prosecuting this appeal. It is idle to suppose that the Government, in general, or the Attorney General, in particular, had failed to inform themselves adequately on the relevant law relating to the invasion. As a result of Britain’s position as one of the permanent members of the Security Council, the Foreign Office Legal Advisers have recognised expertise in Security Council law and practice. This expertise was available to the Government. Doubtless, additional advice could have been obtained, if necessary. When Ms Wilmshurst resigned as a Legal Adviser, on 18 March 2003, she did not suggest that she or anyone else had lacked for information on the legal question. On the contrary, she clearly felt that she had all the information she needed to reach her view that the invasion would be unlawful without a second Security Council resolution.

35.  Equally, Ms Wilmshurst did not criticise the Attorney General for failing to inform himself on the question. Her criticism was that, despite having the requisite information and having initially considered that an invasion would be unlawful, for no good reason he had subsequently changed his mind - once, in giving his written opinion on 7 March, and, again, in his written statement on 17 March. In her view - because of points of which he was fully aware - the Attorney General’s advice was quite simply wrong. The appellants also think that it was wrong. Therefore the inquiry which they really want is one that would investigate why - as they see it - the Attorney General changed his mind and gave the wrong advice, and how the Government came to go to war on the basis of that wrong advice.

36.  Understandably, the appellants themselves do not distinguish between Trooper Clarke and Fusilier Gentle. But, in terms of international law, the cases are different. Trooper Clarke was killed shortly after the invasion in March 2003 when the Government relied on Security Council Resolutions 678, 687 and 1441 as authority for using force against Iraq. By the time Fusilier Gentle was killed, the Security Council had adopted Resolution 1511, authorising the creation of the multinational force, and Resolution 1546, governing the position when sovereignty passed to the Iraqi Interim Government. There can be no doubt whatever that those Resolutions gave authority for the operations of the multinational force, of which Fusilier Gentle was a member, on 28 June 2004. So it is Trooper Clarke’s case which raises the issue about the legal situation at the time of the invasion.

37.  Mr Singh did not argue that article 2 of the Convention imposed a duty on the Government not to take part in an invasion that was unlawful in international law because it had not been authorised by the Security Council. In my view, he was correct not to do so. The recitals to the Convention show that, while it was conceived as a means for taking forward “certain of the rights” in the United Nations Universal Declaration of Human Rights, its focus was on achieving greater unity among the members of the Council of Europe. This was to be done by promoting effective political democracy and a common understanding and observance of the human rights in question within those states. In other words, the Convention was concerned with securing respect for certain human rights within the domestic legal systems of member states rather than with scrutinising the status of their actions under wider international law. The terms of article 2 are wholly consistent with that approach.

38.  Moreover, there is nothing to suggest that the countries which agreed article 2 intended to go further and to use it to impose on member states a fresh obligation to abide by article 2(4) of the United Nations Charter - an obligation which was already incumbent on them under the Charter. Any suggestion that this obligation was implied is particularly implausible when the Charter contains its own system of remedies for breaches of article 2(4). Not only would a further remedy under the Convention have been redundant, but, by creating the possibility of disputes being ventilated in some national courts, it would have risked undermining, rather than reinforcing, the authority of the organs of the United Nations under the Charter. That cannot have been the intention.

39.  Since article 2 did not impose an obligation on the Government not to take part in an invasion that was unlawful under international law, Mr Singh was left with his artificial pis aller of a duty to hold an inquiry into the steps taken by the Government to satisfy itself of the legality of the invasion under international law. This was apparently to be derived from three obligations under article 2. The first is the general duty to protect life. The second, stated perhaps too broadly, is a positive obligation on the authorities to take reasonable steps to protect an individual whose life is at risk from the acts of a third party. That duty applies only where there is a “real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party": Osman v United Kingdom (1998) 29 EHRR 245, para 116; Re Officer L [2007] UKHL 36; [2007] 1 WLR 2135, para 20, per Lord Carswell. The third obligation is to initiate an effective public investigation into any death occurring in circumstances where it appears that one of the substantive obligations under article 2 has been, or may have been, violated and it appears that agents of the state have been, or may have been, in some way implicated: R (Middleton) v West Somerset Coroner [2004] 2 AC 182, para 3, per Lord Bingham of Cornhill.

40.  Since the duty to hold an independent inquiry arises only when it is arguable that there has been a breach of a substantive obligation under article 2, the crucial question is whether, by virtue of article 2, the Government was under a substantive obligation to take reasonable steps to ascertain the lawfulness of the invasion under international law. Mr Singh could point to no authority for implying such an obligation into article 2. I am satisfied that there was no such obligation.

41.  In the first place, if - as I have held - article 2 did not oblige the Government not to take part in an invasion that was unlawful under international law, then an implied obligation under the same article to take reasonable steps to ascertain the lawfulness of the invasion would be futile. The Government would still have been free to invade, whatever the outcome of taking the steps.

42.  The supposed obligation would elevate procedure over substance. If the invasion were lawful, a government which got the answer to the legal question right, but had not exercised due diligence in doing so, would be in technical breach of the obligation. On the other hand, if the war were unlawful, a government which got the answer wrong, but had exercised due diligence in doing so, would not be in breach of the obligation. Being, thus, merely procedural, the obligation would not go to the heart of the matter. An inquiry into the performance of that obligation would likewise not go to the heart of the matter and would satisfy nobody.

43.  Furthermore, any implied obligation in article 2 must be necessary for achieving the overall purpose of the article - to protect the right to life. The risk to soldiers’ lives is not affected, however, by whether a military operation is lawful or unlawful under international law. Indeed, as my noble and learned friend, Lord Bingham of Cornhill, has pointed out, an unlawful attack enjoying the element of surprise may actually be safer for the invading forces. Therefore, while there may be all kinds of moral and political reasons why states should take care to ensure that their military operations are lawful under international law, reducing the risk to the lives of the troops whom they order into battle is not one of them. There is accordingly no basis for implying into article 2 an obligation on the Government to take reasonable steps to satisfy itself of the legality of the invasion under international law.

44.  Finally, on any view, the advice on the legal position was only one of many factors - most of them, presumably, in the sphere of international politics - which were in play when the Government decided to take part in the invasion of Iraq. In that situation it would be simplistic to suppose that any lack of diligence in investigating the legal position could be regarded as a relevant cause of the deaths of two specific soldiers, Trooper Clarke and, a fortiori, Fusilier Gentle, for the purposes of article 2 of the Convention. As Mr Sumption QC observed, in the type of inquiry which the appellants envisage, questions about the actions of Government ministers would crowd out the fate of these two young men, who would fade into the background. An inquiry of that kind has nothing to do with article 2.

45.  For these reasons, which are essentially the same as those of my learned friends, Lord Bingham and Lord Hoffmann, I would dismiss the appeal.

BARONESS HALE OF RICHMOND

My Lords,

46.  On 11 March 2003, the Chief of the Defence Staff asked the Prime Minister for what he later called “an unambiguous black and white statement saying that it would be legal for us to operate if we had to". The next day, the Legal Adviser to the Ministry of Defence wrote to the Legal Secretary to the Law Officers, recording that he had advised the Chief of the Defence Staff that he could properly give his order committing United Kingdom forces “if the Attorney General has advised that he is satisfied that the proposed military action . . . would be in accordance with national and international law". The Treasury Solicitor also indicated that a clear statement from the Attorney General that military action would be lawful was required, not only by the military but also by the civil service, who might be involved in giving assistance to the military effort.

47.  At that stage, the Attorney General’s written advice of 7 March 2003 was very far from clear and unambiguous. The case for military action rested solely on United Nations authorisation. This in turn depended upon whether non-compliance with UN Security Council Resolution 1441 revived the authorisation “to use all necessary means” given by resolution 678 in 1990. The revival question was controversial enough. But more controversial still was whether revival depended upon a UN Security Council decision that resolution 1441 had not been complied with, or whether it would be sufficient if there were “strong factual grounds” to conclude that Iraq was in breach. The Attorney General judged that a court might well conclude that a further resolution was required, but “equally the counter view can be reasonably maintained". The “safest legal course” would be a further resolution, establishing that the Council had concluded that Iraq had failed to comply with resolution 1441, even if it did not authorise the use of force in so many words. On 17 March 2003, however, having obtained the Prime Minister’s unequivocal view that Iraq had committed further material breaches, the Attorney General advised Parliament of his concluded view that “the authority to use force under resolution 678 has revived and so continues to this day". The order to begin the invasion was given the following day.

48.  Why were the Chief of the Defence Staff and the Treasury Solicitor so concerned? Not, we may be sure, because they thought that the risk to the lives of military and civil service personnel would be greater if the war was unlawful than if it were lawful. They were concerned about the legal consequences. Whether there was much substance in those concerns may be open to doubt. The United Kingdom is party to the Charter of the United Nations which defines when one state may lawfully use force against another. We have therefore accepted that we cannot go to war just because we see good reason to do so. We have also committed ourselves to the Rome Statute of the International Criminal Court 1998 (1999, Cm 4555). Crimes within the jurisdiction of the Court are genocide, crimes against humanity, war crimes and the crime of aggression: article 5.1. However the Court cannot exercise its jurisdiction over the crime of aggression until a definition and other conditions have been adopted, which cannot be before 2009: see article 5.2. Hence the UK’s International Criminal Court Act 2001 only provides for the arrest and surrender of people accused of genocide, crimes against humanity and war crimes, which are also made offences in domestic law. The Prosecutor of the ICC has received many communications related to concerns about the legality of the armed conflict in Iraq. In response, he has explained that the Court has only a mandate to examine conduct during the conflict and not whether the decision to engage in it was legal. He has also considered allegations of war crimes against Iraqi civilians, but even where there was a reasonable basis for believing that these had been committed, they did not reach the required threshold of gravity for the Prosecutor to take action.

 
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