R (on the application of Gentle and another) v The Prime Minister [2008] HL

Wednesday 9 April 2008 at 9:36 pm | In News | Post Comment

Desert

The House of Lords unanimously rejected an attempt to use the European Convention on Human Rights to force the government into holding a public inquiry into the circumstances surrounding the invasion if Iraq. The action was brought by the mothers of two young soldiers who died in Iraq.

A rarely convened court of nine law lords found that Article 2 of the ECHR, which protects the right to life, could not be applied to question the legality of a nation’s decision to resort to war.

Lord Bingham said that the lawfulness of military action had no immediate bearing on the risk of fatalities. He cited the example of Pearl Harbour, where a flagrantly unlawful surprise attack on the American fleet minimised the risk to the aggressor.

He further said that the High Court and the Court of Appeal had dismissed the claim, despite the sympathy they felt for the appellants, and that he had reached the same conclusion.

Lord Hope said that had there been an issue which was capable of being reviewed by the courts, they would have done so.

Baroness Hale said that if the use of force was lawful, it would be of some comfort to the mothers to know that their sons had died in a just cause.

Baroness Hale went on to say that she wished that Article 2 did impose a duty on a state not to send its soldiers to fight in an unlawful war.

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