|Judgments - R (on the application of Gentle (FC) and another (FC)) (Appellants) v The Prime Minister and others (Respondents)
49. However, the Attorney Generals advice of 7 March 2003 did point out that:
Two further, though probably more remote possibilities, are an attempted prosecution for murder on the grounds that the military action is unlawful and an attempted prosecution for the crime of aggression. Aggression is a crime under customary international law which automatically forms part of domestic law. It might therefore be argued that international aggression is a crime recognised by the common law which can be prosecuted in the UK courts.
That argument was later rejected by this House in R v Jones (Margaret)  UKHL 16;  1 AC 136. Crimes under customary international law are not automatically incorporated into domestic law and it is no longer open to the courts to recognise new common law crimes.
50. But even if the prospect of prosecution for engaging in an unlawful war (as opposed to conducting a war unlawfully) is remote, the Chief of the Defence Staff and Treasury Solicitor were surely right in principle to seek the assurance which they did. Flight Lieutenant Kendall-Smith was court-martialled for disobeying a lawful command when he refused to return to Iraq in June 2005. It was accepted by the Crown that for there to be an offence (then under section 34 of the Air Force Act 1955) the order in question must not have been an order to do something which was unlawful in domestic or international law. The Judge Advocate ruled that this order was not unlawful because it had been given after the United Nations Resolutions authorising the activities of the multi-national force. But he also ruled that it is no defence that the defendant believed that the order was not lawful. The individuals duty is to obey the order, as long as it is not obviously contrary to law. There is no defence of conscientious objection to the order (compare the position under the German Constitution, as indicated in the ruling of the 2nd Wehrdienstsenat of the Bundesverwaltungsgericht of 21 June 2005, BVerwG 2 WD 12.04). This places the individual British service man or woman in a very difficult position. If he or she obeys the order and it is not in fact lawful, then he or she could in theory face prosecution for the illegal act. Under the ICC Statute, the more sceptical he or she is about the legality of the order, the less possible it might be to rely on a defence of superior orders: see article 33. If he or she disobeys the order and it is in fact lawful, then he or she will probably face a court martial for disobeying it. A state which expects its soldiers to obey their orders irrespective of their own views on the lawfulness of those orders should, it seems to me, owe a correlative duty to its soldiers to ensure that those orders are lawful. Operationally it is obvious that the burden should lie on the person giving rather than the person receiving the orders.
51. Trooper David Clarke joined the army in 2000 when he was only 16. He was sent to Kuwait in February 2003, shortly after his 19th birthday, in readiness for the invasion. The actual invasion began on 20 March 2003. Trooper Clarke drove a Challenger 2 tank with the Queens Royal Lancers. Five days after the invasion he was killed. Another Challenger 2 tank, from the 2nd Royal Tank Regiment, had mistaken his tank for an enemy vehicle and opened fire, killing two and seriously injuring two others. No mortal remains of Trooper Clarke were ever found. The army conducted three separate investigations. The first was by the Special Investigation Branch of the Royal Military Police, with a view to discovering whether a person subject to military discipline had committed an offence under military law. An independent review of that investigation by the Army Prosecution Authority concluded that no charges should be laid. The second was a Land Accident Investigation team report into the procurement and other measures which might be taken to prevent any similar accidents occurring in future. The third was a Board of Inquiry under section 135 of the Army Act 1955. This is an internal Army mechanism designed to get at the facts and to identify lessons. It does not inquire into the cause of death, which is a matter for the Coroner. Coroners inquests can be heard if the mortal remains are returned to this country. In Trooper Clarkes case, there were no mortal remains. But his family were treated as interested parties in the Inquest into the death of Corporal Allbutt who died in the same incident.
52. Fusilier Gentle joined the Army in October 2003, aged 18. After 24 weeks training, he was posted to Basra in May 2004. A month later he was top cover sentry in a Land Rover escorting a convoy of civilian vehicles. This meant that he had to put his head up out of the vehicle. A roadside bomb was detonated nearby and Fusilier Gentle was killed by shrapnel. A Special Investigation Branch inquiry and the Army Prosecuting Authority decided against any prosecution, although the latter did consider whether there was a case against the Force Logistics Officer. A Board of Inquiry concluded that the bomb would have been inhibited by more up to date counter-measures had they been fitted to the vehicle and that improved body armour should be provided for those undertaking top cover duties. There has been an inquest into the cause of death.
53. Not surprisingly, the mothers of these young men wanted to know how and why their sons had died. The circumstances surrounding their deaths must have raised many questions in their minds. The Army inquiries took time and they did not feel that they had been kept fully informed. They felt, with some justification, that even in a situation of armed conflict these particular deaths might have been avoided. But on top of those inquiries they wanted to know why their sons had been sent to Iraq at all. What they really want is an inquiry into whether or not the conflict in which their sons died was lawful. The original claim form sought a declaration that as article 2 ECHR has been violated an independent inquiry must be held and that its remit is to examine all the circumstances of these deaths including whether the decision to use force against Iraq was lawful". If the use of force was lawful, it would be of some comfort to know that their sons had died in a just cause. If it was not, there might at least be some public acknowledgement and attribution of responsibility and lessons learned for the future. If my child had died in this way, that is exactly what I would want. I would want to feel that she had died fighting for a just cause, that she had not been sent to fight a battle which should never have been fought at all, and that if she had then some-one might be called to account.
54. However, the only way to compel such an inquiry is through article 2 of the European Convention on Human Rights. This requires, not only that the state itself shall not take life, and should have a system of laws in place to protect the right to life, but also that the authorities [should], do all that can reasonably be expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge": Osman v United Kingdom (1998) 29 EHRR 245, para 116. The duty to respect and protect life can only be made effective by implying an ancillary duty to hold an independent inquiry into deaths where this duty may have been broken: McCann v United Kingdom (1995) 21 EHRR 97. There is no point in banning the secret police from killing people in their custody if no-one will ever find out when they do. But there can be no duty to hold an inquiry unless what has happened is at least arguably a breach of the substantive duty to respect and protect life.
55. For the reasons explained earlier, I wish that we could spell out of article 2 a duty in a state not to send its soldiers to fight in an unlawful war. States should protect their soldiers from the consequences of having in practice to obey orders whether or not they are lawful. It might be possible to discover such a duty in the words from Osman quoted in the previous paragraph. Sending troops into battle involves a real and immediate risk to their lives, let alone to the lives of others. While it cannot reasonably be expected that states will decline to commit their troops to a lawful war, because states must be allowed to defend themselves and to assist in international efforts to restore peace and stability, it might reasonably be expected that they would decline to commit their troops to an unlawful war. If the European Court of Human Rights in Strasbourg wishes to take article 2 so far, I would be surprised but not at all unhappy.
56. But I do not think that we can go so far. It goes way beyond what member states might have thought that they were committing themselves to in 1950. Although the Convention is a living instrument, not to be interpreted only according to its original intention, we must tread very carefully before implying obligations which are not already there: Brown v Stott  1 AC 681. This is not because any decision of ours would be binding upon the other member states of the Council of Europe: it would not. It is because we are interpreting the Convention rights in the light of the jurisprudence of the Strasbourg court as it evolves over time: see R (Ullah) v Special Adjudicator  UKHL 26;  2 AC 323, para 20. Parliament is free to go further than Strasbourg if it wishes, but we are not free to foist upon Parliament or upon public authorities an interpretation of a Convention right which goes way beyond anything which we can reasonably foresee that Strasbourg might do.
57. I cannot reasonably foresee that Strasbourg would construct out of article 2 a duty not to send soldiers to fight in an unlawful war. The lawfulness of war is an issue between states, not between individuals or between individuals and the state. As already seen, the Statute of the International Criminal Court has not yet changed that. Furthermore, the lawfulness of a war has no direct link with the risk to the soldiers lives. Soldiers are just as likely to die in a just cause as in an unjust one. Fusilier Gentle died shortly after United Nations Security Council Resolution 1546 of 8 June 2004, which on any view legitimated the multi-national forces attempts to restore security and stability in Iraq: see R (Al-Jedda) v Secretary of State for Defence  UKHL 58;  2 WLR 31. A totally unjustified surprise attack may be much less risky than a properly declared war. It would not meet the real concerns in this case to decide that Trooper Clarkes death required an article 2 inquiry while Fusilier Gentles did not.
58. A further reason not to spell such a duty out of article 2 is that it would require both the domestic courts of this country, and the European Court of Human Rights in Strasbourg, to rule upon the legality of the use of force against Iraq in international law. This is beyond our competence. The state that goes to war cannot and should not be the judge of whether or not the war was lawful in international law. That question can only be authoritatively decided, not by us or by Strasbourg, but by the international institutions which police the international treaties governing the law of war. But if there were such a right, the domestic courts would have to do their best to decide if it had been broken, because the Human Rights Act 1998 requires us to decide whether or not a public authority has acted compatibly with the Convention rights.
59. In reality, all that the nation state can do is to use its best endeavours to conform its actions to international law, just as all that anyone else can do is to use their best endeavours to conform their actions to the law. That is why the appellants lawyers have fallen back on the claim that the Government should have taken reasonable care (used due diligence) to ascertain whether the war was lawful before ordering its troops into battle. Of course we all hope that Governments will take reasonable care, especially before making such momentous decisions as this. But the point of taking reasonable care is to discover what you can and cannot do. If you do not owe a duty to individual soldiers not to send them to fight in an unlawful war, it makes no difference whether or not you take reasonable care to discover whether or not it was lawful. You could have sent them anyway.
60. In my regretful view, therefore, the appeal fails at the first hurdle. It is not a breach of the substantive duty in article 2 to send the troops to fight in an unlawful war. Hence the article 2 duty to investigate does not arise. But had it been otherwise, I would have been inclined to accept the other planks in the appellants argument. As I understand it, it is now common ground that if a Convention right requires the court to examine and adjudicate upon matters which were previously regarded as non-justiciable, then adjudicate it must. The subject matter cannot preclude this (although, as is already clear, I do agree with the Court of Appeal that it is a factor tending against interpreting a right in such a way as to require the courts to do this). Nor have I much difficulty with the proposition that these soldiers were within the jurisdiction of the United Kingdom when they met their deaths. If Mr Baha Mousa, detained in a military detention facility in Basra, was within the jurisdiction, then a soldier serving under the command and control of his superiors must also be within the jurisdiction: see R (Al-Skeini) v Secretary of State for Defence  UKHL 26;  3 WLR 33. The United Kingdom is in a better position to secure to him all his Convention rights, modified as their content is by the exigencies of military service, than it is to secure those rights to its detainees.
61. For these reasons, agreeing with all your lordships in the result, and in substantial agreement with the reasoning of my noble and learned friends, Lord Bingham of Cornhill, Lord Hoffmann and Lord Hope of Craighead, I would dismiss this appeal. I do so with sorrow, but my sorrow is nothing to that of all the families and friends of soldiers who have died without knowing whether they were fighting in a just cause. History must be the judge of that.
62. This appeal is a reminder, if such were ever needed, of the weight of responsibility which rests upon those who make decisions to send members of the Services to fight a war. The appellants sons sadly lost their lives when serving with the Army in Iraq, and the appellants understandably want answers to a number of questions about the Governments decision to take part in the invasion of that country. In the opening paragraph of their printed case they state that the appeal concerned the approach taken by the Government to the legality of the invasion, and in their petition for leave to appeal they stated that an appeal would present the best opportunity for that question to be the subject of judicial consideration. Mr Singh QC did not ask the House to pronounce directly on the legality of the invasion and it would not be proper for your Lordships to attempt to do so. The question is one which has been the subject of much debate and more speculation, but it is clear that the proper place for it is in the court of public opinion and the forum of Parliament, not before this House sitting in its judicial capacity. It is equally clear, however, that the appellants quest for a public inquiry into the process by which the decision to join in the invasion was reached is an attempt to get as near as possible inquiring into that very issue.
63. The issues which have been argued in the appeal may be termed the justiciability issue, the engagement issue and the relevance issue. The Court of Appeal decided the case before them on the justiciability issue, whether such matters fall outside the category of issues on which the courts may pronounce judicial decisions, and did not pronounce on the engagement issue. Mr Singh presented cogent arguments to the effect that the area is not strictly one which is not justiciable, but falls within the class of decisions on which the courts will exercise a degree of judicial restraint, and that the present matter involves questions of law which the courts can and should decide. I would prefer, however, to reserve my opinion on the correctness of these arguments for another occasion.
64. I do so because I am persuaded, like the other members of the Committee, that the outcome of the appeal should be determined by reference to the other issues. It was common case that the procedural obligation of investigation which the European Court of Human Rights has declared to be implied from the duty arising under article 2 of the Convention is ancillary or parasitic, that is to say, it does not arise unless there is a substantive breach of article 2. The appellants argument therefore cannot be sustained unless they can establish that the decision to join in the invasion of Iraq without a further resolution from the UN Security Council was, arguably at least, a breach of article 2. For the reasons given by your Lordships I am satisfied that article 2 does not impose a duty on a state not to participate in a war which is not authorised by the Charter of the United Nations. It is not necessary for me to lengthen this opinion by repeating those reasons, with which I respectfully agree. The question of judicial restraint accordingly does not arise, for in the absence of such a duty there can be no question of a substantive breach of article 2 and the ancillary duty of investigation is not triggered.
65. Similarly, the relevance issue must be decided in the respondents favour. If, contrary to my opinion and that of your Lordships, it is arguable that the decision to invade Iraq involved a substantive breach of article 2, neither that decision nor the lack of diligence in investigating the legal position can be considered a relevant cause of the deaths of the two soldiers. There are to my mind three reasons for this conclusion, all of which have been articulated by your Lordships. First, by the nature of their profession soldiers expect to undertake risks which are not ordinarily incurred by civilians and to endure the possibility of wounds and death in the performance of their duty. Secondly, it does not necessarily follow that if a government is advised that it is doubtful whether to go to war would be a breach of international law, it would refrain from doing so. In any event, the appellants expressed desire is to investigate the degree of diligence shown by the Government in ascertaining the legality of joining in the invasion. On the facts before the House the legal position appears to have been researched in depth, and what the appellants really want to know is why the Attorney Generals advice changed. Thirdly, there is not a sustainable connection between the legality of a war and the safety of the service personnel sent to conduct it. As my noble and learned friend Lord Bingham of Cornhill has pointed out, an illegal surprise attack like that on Pearl Harbor may involve much less risk for them than one which is undertaken after all proper public consideration and international support. I am accordingly satisfied that the question of a possible breach of article 2 is not relevant to the deaths of the soldiers or, as Mr Sumption QC put it on behalf of the respondents, their deaths are too remote.
66. Having reached these conclusions, I do not need to discuss the question whether the occurrence of the fatal incidents took place within the jurisdiction of the United Kingdom for the purposes of article 1 of the Convention, although on the authority of the views expressed in R (Al-Skeini) v Secretary of State for Defence  UKHL 26;  3 WLR 33 that appears questionable. Nor will the appellants get any further by seeking to bring the matter within the jurisdiction by claiming that the decision to go to war was made in the United Kingdom. For the reasons set out in paragraph 8 of Lord Binghams opinion, I consider that the Strasbourg authorities do not support such an argument and that the presentation of such an argument highlights the remoteness of their complaints from the true purview of article 2.
67. I accordingly have come to the conclusion, in concurrence with your Lordships, that notwithstanding my very real sympathy for the appellants in their grievous personal loss, their appeal cannot be sustained and must be dismissed.
LORD BROWN OF EATON-UNDER-HEYWOOD
68. No member of the Committee could fail to be moved by the plight of these appellants and others like them, the mothers of soldiers killed on active service in Iraq. Your Lordships naturally recognise too that the appellants suffering is the greater because of their understandable concern that the invasion may not have been lawful in the first place. But however sympathetic your Lordships may be to the appellants plea for a public inquiry to address and resolve the questions that so trouble themmost notably perhaps, whether the invasion was lawful under international law, how the Attorney-General came to his opinion that it was, and whether perhaps the Government was not in any event intent upon hostilitiesyour Lordships could only order such an inquiry if article 2 of the European Convention on Human Rights requires it.
69. Each of your Lordships has reached the clear conclusion that the appellants argument for an inquiry under article 2 must fail. That too was the conclusion reached by Collins J at first instance (who cannot be criticised for refusing permission to claim judicial review on the ground that it was unarguable) and by the Court of Appeal (who expressly granted the necessary permission not on the basis that the claim had any real prospect of success but rather because it thought there was compelling reason to hear it).
70. It is impossible to argue that article 2 of the Convention was ever intended or is now apt to guarantee or police compliance by member states with article 2(4) of the Charter of the UN and, unsurprisingly, Mr Rabinder Singh QC shrinks from doing so. But realistically, once that is recognised, his whole case unravels. Obviously all armed conflict, whether lawful or not, is likely to result in deaths. But article 2 is not violated merely because a death occurs in war, even an unlawful war. Of course some deaths occurring during military conflict overseas do call for an inquiry (whether required under article 2 your Lordships need not decide) into whether sufficient precautions have been taken by the state to safeguard their service personnel. The March 2006 inquest held at Oxford into the deaths of six Royal Military policemen on 24 June 2003, killed whilst defending a police station in Iraq, provides an example of this. The coroner there examined in depth the adequacy of the transport, communications equipment and support provided to those concerned and made recommendations to the Secretary of State for improvements. But such inquests are held irrespective of the legality of the overseas operation in question and that itself could never properly be an issue in the case.
71. So many of your Lordships speeches have so amply demonstrated all of this that I propose to content myself merely with a general concurrence in everything already said. I too would dismiss the appeal.
72. The appellants contend that Article 2 contains, first, a substantive duty, owed by the Government of the United Kingdom to soldiers whose lives would be put at risk during a war, to exercise due diligence before going to war to ensure that it would be lawful to do so under international law; and, second, a procedural duty, in the event of a soldier dying in a war which may arguably have been entered into in violation of that substantive duty, to initiate an effective public and independent inquiry into whether due diligence was in fact exercised.
73. On this appeal, these two strands of the appellants case stand or fall together. The appellants submit that there is a causative link between the alleged duties and their sons sad deaths, in that, but for breach of the substantive duty of due diligence, the Government would not have gone to war, and their sons would not have died. Thus, they say, the circumstances of their sons deaths (see R (Middleton) v. West Somerset Coroner  UKHL 10,  2 AC 182, para. 3) go back to and include the decision-making process leading to the war. This is although, as my noble and learned friend, Lord Hope of Craighead has pointed out, the Governments concern about the legality of the Iraq war was unrelated to the physical risks that soldiers would incur during any war.
74. The reasoning in the opinions of my noble and learned friends, Lord Bingham of Cornhill and Lord Hoffmann, which I have had the benefit of reading in draft, demonstrates in my view why the appellants cannot succeed on either strand of their case. I agree with them that there is no basis for any inquiry into the circumstances of the sad deaths of Trooper Clarke and Fusilier Gentle beyond that which has taken place at inquests already held. I too would dismiss this appeal accordingly.
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