By Tobias Thienel

The House of Lords has yesterday decided a case that could have been quite momentous. However, the claim by the appellants was dismissed by the House, as it had been by the Court of Appeal (I have previously said a bit about that earlier judgment in the days of The Core, here and here). The case is R (Gentle) v Prime Minister [2008] UKHL 20, and was apparently felt to be important enough to be decided by nine, rather than the usual five or the somewhat rare seven, Lords of Appeal in Ordinary. The appellants, mothers of two British Army soldiers, very understandably wanted the circumstances of their sons’ deaths examined in every last detail. Given the circumstances of the British decision to go to war in Iraq, this meant also that they wanted an examination of how the Attorney General at the time (Lord Goldsmith QC) came to advise the Government and the Chief of the Defence Staff that the war would be lawful in international law. To that end, counsel for the two aggrieved mothers argued that Article 2 ECHR (‘Everyone’s right to life shall be protected by law‘) implied obligations on the State – a) to send its soldiers to war only if it has diligently checked whether the war is lawful in international law, and b) once troops have been deployed and soldiers have died in action, to conduct a full impartial inquiry into whether the legality of the war has been diligently considered. Of course, the appellants only really wanted the second obligation stated by the House of Lords, but to that end, they needed to establish the first. The reason is this: it is settled law under the Convention that there must be a full inquiry if a) someone has died, and b) there is a possibility that the death was in some manner unlawful under Article 2 ECHR. That is obviously the case if the State has killed the person, but also if the State has failed to take appropriate protective measures. In other words, Article 2 must be engaged in order to give rise to an obligation to hold an inquiry. That is where the appellants failed before the House of Lords. The House decided that there was no obligation on the State deriving from the right to life to send its soldiers into war only where the legality of the war has been diligently considered. The policy reasons for this holding are reasonably clear, I guess. The House just wasn’t going to mandate that a court or a similar board of inquiry examine the legality of the war in Iraq. Despite the appellants’ protestations that they would not demand a correct assessment of that legality, but only a reasonably careful one, any such inquiry would have entailed some form of examination on the merits of the Attorney General’s views on the matter (which may well be what the appellants really wanted: Lord Bingham, para. 2; Lord Rodger, paras. 34-35). That was felt to be undesirable (Lord Bingham, para. 8(2); Baroness Hale, para. 58). But political or semi-political points did not take centre stage. Lord Bingham has said extrajudicially that they never do: apparently, the Law Lords simply try to get the law right, without worrying too much about how the judgment will be received. (Not that there is any watertight division between law and policy; also note Lord Bingham’s comments at para. 8(2), and towards the end of para. 9, of yesterday’s judgment.) All of their Lordships therefore considered, first and foremost, the strictly legal aspects of the right claimed by the appellants to have been violated by the UK, with the consequence of an inquiry having to be set up. That obligation, as mentioned above, was to have been an obligation not to send soldiers into war unless the Government had diligently considered whether the war would be lawful. It was held that no such obligation existed under the European Convention. Article 2 was therefore not engaged, as there was no possibility that the UK might be to blame for a substantive violation of the article. Hence, the procedural obligation of holding an inquiry did not apply. A number of different reasons were advanced for holding that there was no obligation on the Government to satisfy itself of the lawfulness under the UN Charter of a proposed military engagement. I will not discuss all of them, but some stand out. First, it was held that the lawfulness of a war had no bearing whatsoever on the dangers facing the soldiers fighting in it. Checking whether the war was lawful would therefore not serve to protect any lives (Lord Bingham, para. 8(1); Lord Rodger, para. 43; Baroness Hale, para. 57). That much is clearly correct. It should be said, though, that the appellants did offer an argument on the link between the examination of international law on the legality of the Iraq war and the danger to the soldiers’ lives: the idea was that, had the Government taken more care in thinking about the UN Charter, then it would not have gone to war at all. No-one would have been in any danger of being killed, because no-one would have been sent to a war zone. However, as Lord Hoffmann has shown, that proves too much. This reasoning would establish a duty not only to consider the law of the Charter, but also all other factors that might have had a bearing on the decision to go to war, including diplomatic and financial considerations (Lord Hoffmann, para. 16). Certainly, it is more than merely desirable that the decision to go to war should be considered very carefully indeed. It is unlikely, however, that the ECHR would demand as much. It would also appear that the appellants’ argument on this point would not so much establish an obligation to diligently consider the lawfulness of a war, as an obligation not to enter into any illegal engagements, whether they are known to be illegal or not. The obligation, then, would not be one of ‘due diligence’ in the legal assessment, but one of result: do not engage in illegal military action. That, however, is not an obligation contended for by the appellants. Even so, some of the Law Lords did say that the appellants had been right not to make that particular point. It was inconceivable, they thought, that Article 2 ECHR should take the obligation of the non-use of force that States owe one another under the Charter, and render that obligation one owed also to private persons. The prohibition on the use of force was an inter-State matter, whereas human rights operated as between individuals and the State (Lord Hoffmann, para. 13; see also Lord Bingham, para. 8(2); Lord Hope, paras. 24-25; Lord Rodger, para. 37; Baroness Hale, para. 57). In their argument on this very point, the appellants had referred to Article 15(1) ECHR, by which derogations from the Convention had to be in accordance with the State’s ‘other obligations under international law’. Based on this, they said that the lawfulness of a war under the Charter fell to be considered under the ECHR. I don’t think it’s a good answer to this argument to simply say that the Convention does not transform obligations owed to other States into duties owed to private persons. But nor is the argument drawn from Article 15(1) truly a good point. I would suggest two reasons for this: – The reference to the State’s other obligations under international law has no relevance to Article 2 at all. Paragraph 2 of Article 15 provides that there can be no derogation from Article 2 anyway, except ‘in respect of deaths resulting from lawful acts of war’. This reference to ‘lawful acts of war‘, for its part, notably does not read ‘lawful wars‘. It therefore refers not to the jus ad bellum, the law of the Charter (etc) on the use of force between States, but to the jus in bello, the law relating to conduct within an existing armed conflict. The legality of the war as such does not come into it. – I believe this relatively clear language points the way for the interpretation of the ‘other obligations under international law’ language in paragraph 1 of Article 15 (in relation to derogable articles, i.e. not Article 2). It is not strictly correct to discount one of the State’s other obligations on the grounds that it applies as between States. It is conceivable, for instance, that there could be an obligation not to affect individuals in some manner, which is nonetheless owed not to them, but to their State. The Hague Regulations on the Conduct of War on Land of 1907 provide examples of such rules. I would think that Article 15(1) ECHR would mandate compliance with those rules, and render them enforceable through the mechanisms of the ECHR. However, the use of force is another matter: it is an obligation as between States, but that’s not the point. The point is that the prohibition does not catch the violation of individual interests at all. It only outlaws the violation of an attacked State’s sovereignty inherent in the use of military force. Yes, people are killed in military engagements, but they are not within the legal protection of Article 2(4) of the Charter. They may profit from the absence of war, an aspect that the preamble to the Charter takes up in its aim of ‘sav[ing] succeeding generations from the scourge of war’, but Article 2 is all about protecting States. In the end, I cannot but agree with the House that the legality of a war, or the assessment of such legality, is not relevant to Article 2 ECHR. That article notably does not contain a requirement that every killing be lawful, nor that every lack of protection of life be excused by law. It simply says that human lives must be protected by law (and by practical measures), and that no-one may be killed except under the strict conditions of Article 2(2) or Article 15(2) (killing in accordance with the jus in bello). The legality of a war is nowhere made a condition for anything – sad as it is… That being so, it does not make a great deal of sense to demand an investigation into whether the war was lawful, or whether the Government has carefully considered the point. As far as the ECHR is concerned, the UK could have gone to war in any case (Lord Hoffmann, para. 16). All the Law Lords expressed their sympathy for the appellants (see in particular Baroness Hale’s statements at paras. 53 and 61). Quite rightly, too. Nonetheless, there was nothing the courts could have done for them. Nor, I’m afraid, will the European Court of Human Rights be able to give them what they want. So, the appellants are not going to hear an English judge say that the Iraq war was illegal, nor that the Attorney General should have thought harder about this. They are going to have to be content with, well, very nearly everyone else saying as much. Which, clearly, is little consolation.