Fusilier Gentle and Trooper Clarke, both aged 19, were killed while serving in the British army in Iraq. Inquests by a coroner had clarified the immediate circumstances surrounding the deaths. The claimants, the mothers of the two young soldiers, contended that there existed an enforceable legal right to require the UK Government to hold an independent public inquiry into the circumstances leading to the invasion of Iraq in 2003. In R. (on the application of Gentle) v. The Prime Minister [2008] UKHL 20, [2008] 1 A.C. 1356 the House of Lords unanimously rejected this appeal against the refusal of permission to claim judicial review to force a public inquiry. The reasoning of the Court is important as it analyses the nature and scope of Article 2 ECHR and sheds light on the issue of judicial restraint and the extraterritorial application of human rights law.

The claimants' case turned on sections 1 and 2 of the Human Rights Act 1998 and on the duty of member states, imposed by Article 2 ECHR. Lord Bingham succinctly summarised the claimant's argument: “This duty [to protect life] extends to the lives of soldiers. Armed conflict exposes soldiers to the risk of death. Therefore a state should take timely steps to obtain reliable legal advice before committing its troops to armed conflict. Had the UK done this before invading Iraq in March 2003, it would arguably not have invaded”, at [3]. The claimants had invited the Court to give Article 2 a broad interpretation: the UK had breached its substantive obligation under Article 2 by failing “to ensure with due diligence” that participation in the invasion of Iraq complied with international law. Thus an effective and independent inquiry, as demanded by the procedural obligation under Article 2, was necessary to determine whether due diligence had in fact been exercised.

Lord Bingham, who gave the leading speech, reasoned that as the procedural obligation under Article 2 is parasitic on the substantive right, the claimants could only succeed by showing an arguable case that the substantive obligation was at issue. He identified three reasons to explain why Article 2 has never been held to apply to the decision-making process leading to the use of armed force. First, there is no direct correlation between the lawfulness of the use of military force and the risk of fatalities. Indeed an unlawful attack, such as the surprise attack by the Japanese on the US fleet at Pearl Harbour, is likely to minimise the casualties of the aggressor state. Secondly, he pointed out that the ECHR was not designed to provide a framework to resolve questions about the resort to armed force. In his view, “the restraint traditionally shown by the courts in ruling on what has been called high policy – peace and war, the making of treaties, the conduct of foreign relations – does tend to militate against the existence of the right”, at [8]. He did not address the claimant's contention that the reliance on the Attorney-General's advice was a legal issue rather than a political one.

Finally, Lord Bingham addressed the issue of jurisdiction. He found that “subject to limited exceptions and specific extensions” the application of human rights obligations is territorial. The claimants attempted to establish jurisdiction in two ways. First, jurisdiction on an extraterritorial basis can be founded upon the existence of effective control exercised by the UK authorities as decided in R. (on the application of Al-Skeini) v. Secretary of State for Defence [2007] UKHL 26, [2008] 1 A.C. 153. Lord Bingham concluded that “although [the servicemen serving in Iraq] were subject to the authority of the respondents, they were clearly not within the jurisdiction of the UK, as that expression has been interpreted”, at [8(3)]. The claimants adopted a second argument in attempting to establish jurisdiction: the courts will address the issue where an act within the UK is likely to lead to a human rights violation abroad. The claimants stressed that the decision-making process, that had exposed these soldiers to lethal danger, had taken place within the UK's jurisdiction. They relied upon extradition and deportation cases such as Soering v. United Kingdom (1989) 11 E.H.R.R. 439 and Chahal v. United Kingdom (1996) 23 E.H.R.R. 314. Lord Bingham was not persuaded by this argument and considered that there was an insufficient causal link. In contrast to the facts in the present case, he explained, the decision to send an individual to a foreign country in these expulsion cases would have “an immediate and direct impact on that individual”, at [8(3)]. In his view, the claimants' contention merely highlighted the degree of remoteness of an Article 2 violation from the use of military force. Lord Hope also distinguished Soering and the following jurisprudence for similar reasons: “Article 2(1) is not violated simply by deploying servicemen and women on active service overseas as part of an organised military force which is properly equipped and capable of defending itself”, at [19].

Lord Bingham commented that these proceedings had “an appearance of unreality” while Lord Roger described them as an “artificial pis aller”. Although the claimants were seeking a legal right in domestic law to force an inquiry, their underlying complaint questioned the legality of the war itself and the adequacy of the Attorney-General's legal advice on compatibility with international law. Thus the lawfulness of the invasion in Iraq was the ghostly but seminal issue as the claimants sought to persuade the Court that there was a right to have an inquiry conducted. Lord Hope acknowledged that the lawfulness of the invasion of Iraq was of “cardinal importance” in the decision to commit troops but it was not relevant to the right protected in Article 2 ECHR. In his view, “the issue of legality in this area of international law belongs to the area of relation between states”, at [24].

Baroness Hale reluctantly agreed with the conclusion of the court that Article 2 imposes no duty on the state not to send its troops to fight an unlawful war. She suggested, however, that it may be possible “to discover such a duty” in the decision of Osman v. United Kingdom (1998) 29 E.H.R.R. 245, at [116]. “While it cannot reasonably be expected that states will decline to commit their troops to a lawful war … 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”, at [55] Furthermore she expressed a willingness to accept the other aspects of the claimants' arguments. In her view, issues which were previously regarded as non-justiciable by the court may now require adjudication: “the subject matter cannot preclude this”, at [60]. She also drew attention to the unsatisfactory nature of the line drawing in domestic law in deciding whether a person falls within the jurisdiction of the UK [60]. The lack of a principled basis for deciding issues of jurisdiction will continue to trouble the courts for some time.