Gentle & Anor, R (on the application of) v Prime Minister & Ors

Article 2 of the European Convention on Human Rights does not impose a justiciable duty on a state to ensure, before deploying armed forces, that military operations are lawful under public international law.

The legality of military action cannot be separated from questions of foreign affairs, defence and political policy. The Convention does not import international law wholesale, and its references to international law do not create the asserted investigative duty. An Article 2 inquiry therefore does not extend to investigating the legality of an invasion or the policy decisions surrounding it.

The applicants were relatives of two service personnel killed in Iraq. They sought judicial review of the Government’s refusal to establish an independent inquiry into whether reasonable steps had been taken to ensure that the invasion was lawful under public international law. The physical circumstances of the deaths were to be examined through inquests.

Collins J refused the application: [2005] EWHC 3119 (Admin). The Court of Appeal granted permission because of the importance of the issues and considered the judicial review application. The central question was whether Article 2 required an inquiry into the legality of the invasion and the related governmental decision-making.

1. Disposition. The judgment was delivered for the court, to which all three judges contributed. The applications were dismissed.
2. Substantive obligation. Article 2 requires a framework of laws, precautions and procedures capable of protecting life. It does not, however, impose the asserted duty to take reasonable steps to ensure that servicemen and women are not deployed on operations unlawful under international law. The decision to deploy forces in a foreign conflict is not, without more, an arguable breach of Article 2.
3. Justiciability. Justiciability depends on subject matter and the suitability of the judicial process. Decisions concerning war, foreign affairs and defence policy are high-policy decisions ordinarily reserved to the executive. The Court accepted that non-justiciability cannot prevent effect being given to an established Convention right, but held that Article 2 created no right of the kind asserted.
4. Interrelationship of law and policy. An inquiry into whether the Government had taken proper steps to establish the legality of the invasion would necessarily involve interpreting international instruments, considering their negotiating history and examining political and military policy. It was impossible to isolate a purely legal or clinical question. The Convention did not contemplate an Article 2 inquiry into such matters. Its references to international law, including in Article 15 and Article 1 of Protocol 1, did not import international law wholesale or support the proposed obligation.
5. Additional observations. The Court noted that [2005] EWCA Civ 1440 had rejected the proposition that an Article 2 investigation always requires an arguable substantive breach, but said that this did not affect the result. Causation and territorial jurisdiction were left undecided, although the Court considered that causation might be arguable and that the reasoning in (1989) 11 EHRR 439 might apply by analogy. If the decision had been different, a declaration determining the legal question might have been a more appropriate course than a broad independent inquiry.

• Court of Appeal (Civil Division): Permission was granted because the importance of the issues supplied a compelling reason for an appeal. The court proceeded under Civil Procedure Rules 1998, rules 52.15(3) and 52.15(4), and dismissed the applications.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Collins J refused the judicial review application on 20 December 2005: [2005] EWHC 3119 (Admin).