Iraq inquiry fight may head to Europe

The families of two soldiers killed in Iraq could take their legal battle for a public inquiry into the Iraq war to Europe after Baroness Hale offered a sliver of hope in last week’s House of Lords judgment.

In R (on the application of Gentle and another) v Prime Minister and others, the nine law lords unanimously rejected the argument that the right to life provisions under Art 2 of the European Convention on Human Rights provided a legal right to an inquiry into the Iraq
invasion.

Lord Bingham of Cornhill said: “I find it impossible to conceive that the proud sovereign states of Europe could ever have contemplated binding themselves legally to establish an independent public inquiry into the process by which a decision might have been made to commit the state’s armed forces to war.”

However, Seamus Burns, solicitor and senior lecturer at Sheffield Hallam University, says Baroness Hale offered the families a glimmer of hope when she said that “states should protect their soldiers from the consequences of having to obey orders whether or not they are lawful…it might reasonably be expected that they would decline to commit their troops to an unlawful war”. She added that if the European Court of Human Rights were to construe Art 2 in such a manner “I would be surprised but not at all unhappy”.

The case was brought by the mothers of Gordon Gentle and David Jeffrey Clarke, two 19-year-old British soldiers killed while
serving in Iraq. Burns says the approach taken by the law lords was the only realistic option available.

“The lords adopted the traditional role of the courts towards the right, in domestic law, to require the government to establish an independent public inquiry into all the circumstances surrounding the invasion of Iraq, including the legal advice from the attorney general regarding the legality of the invasion, and of course, the corollary of that right, namely a duty on the government to establish such an inquiry.”

He adds: “Clearly, Art 2 is a fundamental, but not an absolute right and, moreover, had never been held to apply to the process of deciding on the lawfulness of a resort to arms, by member states’ governments, even if soldiers would be exposed to the risk of death.”

Phil Shiner, a solicitor with Public Interest Lawyers, who acted for the families says: “The law lords have taken a very narrow approach.”