R (Gentle) v Foreign Secretary [2008]
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R (Gentle) v Foreign Secretary [2008] UKHL 20, [2008] 1 AC 1346 revolved around the mothers of two British servicemen who were killed during military service in Iraq. The central dispute involved the scope of the inquests into the soldiers' deaths and, specifically, the decision of the Foreign Secretary not to include an examination of whether the invasion of Iraq complied with international law.
The appellants, Rose Gentle and Beverly Clarke, sought a judicial review of the government's refusal to conduct an independent inquiry into the decision to invade Iraq in 2003. The key issue centred around whether Article 2 of the European Convention on Human Rights (ECHR), guaranteeing the right to life, imposed an obligation on the government to ensure that its armed forces were not sent on unlawful operations per international law principles.
The primary issue before the court was whether Article 2 of the ECHR (right to life) – incorporated into UK law by the Human Rights Act 1998 – imposed an obligation to take reasonable steps to ensure the lawfulness of actions, prompting a public investigation into the legality of the Iraq invasion. The court, in its judgment, dismissed the claim brought by the mothers seeking a judicial review of the Foreign Secretary's decision.
The court held that the question of whether the invasion of Iraq was lawful was not justiciable. In other words, it was not a matter that fell within the realm of adjudication by the courts. This reflected a recognition that certain issues, especially those related to the lawfulness of military actions, were inherently political and not suitable for judicial determination.
The court emphasised that, even with the incorporation of Article 2 into UK law, the question of whether reasonable steps had been taken to ensure the lawfulness of the invasion was also non-justiciable. The Human Rights Act and the ECHR, while influential, did not extend their reach to make every aspect of international law justiciable in domestic courts.
The judgment underscored the preservation of executive discretion in matters involving international relations and military decisions. It acknowledged that the principles of international law were not automatically transposed into the Human Rights Act or the ECHR. There remained a recognition that certain issues fell within the purview of the executive branch rather than the judiciary.
This case reinforced the principle of non-justiciability in certain areas, particularly those involving international law and military actions. The court, while acknowledging the importance of human rights, maintained the boundaries between legal scrutiny and executive authority, highlighting the limitations of the judiciary in delving into matters inherently political and diplomatic.
The appellants, Rose Gentle and Beverly Clarke, sought a judicial review of the government's refusal to conduct an independent inquiry into the decision to invade Iraq in 2003. The key issue centred around whether Article 2 of the European Convention on Human Rights (ECHR), guaranteeing the right to life, imposed an obligation on the government to ensure that its armed forces were not sent on unlawful operations per international law principles.
The primary issue before the court was whether Article 2 of the ECHR (right to life) – incorporated into UK law by the Human Rights Act 1998 – imposed an obligation to take reasonable steps to ensure the lawfulness of actions, prompting a public investigation into the legality of the Iraq invasion. The court, in its judgment, dismissed the claim brought by the mothers seeking a judicial review of the Foreign Secretary's decision.
The court held that the question of whether the invasion of Iraq was lawful was not justiciable. In other words, it was not a matter that fell within the realm of adjudication by the courts. This reflected a recognition that certain issues, especially those related to the lawfulness of military actions, were inherently political and not suitable for judicial determination.
The court emphasised that, even with the incorporation of Article 2 into UK law, the question of whether reasonable steps had been taken to ensure the lawfulness of the invasion was also non-justiciable. The Human Rights Act and the ECHR, while influential, did not extend their reach to make every aspect of international law justiciable in domestic courts.
The judgment underscored the preservation of executive discretion in matters involving international relations and military decisions. It acknowledged that the principles of international law were not automatically transposed into the Human Rights Act or the ECHR. There remained a recognition that certain issues fell within the purview of the executive branch rather than the judiciary.
This case reinforced the principle of non-justiciability in certain areas, particularly those involving international law and military actions. The court, while acknowledging the importance of human rights, maintained the boundaries between legal scrutiny and executive authority, highlighting the limitations of the judiciary in delving into matters inherently political and diplomatic.
