UK Courts May Investigate Iraq War’s Legality

by Julian Ku

According to the UK’s Guardian, families of UK soldiers killed in Iraq will be permitted to bring an action in UK courts challenging the legality of the U.S./U.K. led war in Iraq. I don’t have a copy of the ruling, but apparently, the UK soldiers’ relatives will bring a lawsuit alleging violation of the right to life guaranteed by Article 2 of the European Convention on Human Rights.

This sounds to my (admittedly very non-European ears) like a far-fetched argument. All the families have won so far is a hearing, but that may involve some UK version of “discovery” whereby the UK government may be required to reveal some information about the deliberations about the legality of the Iraq war. So stay tuned…

http://opiniojuris.org/2006/07/26/uk-courts-may-investigate-iraq-wars-legality/

4 Responses

  1. I imagine the claim would be based on the positive obligation inherent in Article 2, i.e. the obligation not to put people’s lives at risk in an unjustifiable way, which goes hand in hand with the negative obligation not to kill. So I would think the argument will be that the war was illegal under international law, therefore the government put service members’ lives at unjustifiable risk, therefore the loss of live was reasonably avoidable and the government is potentially liable. Don’t know how successful it would be but yes, the details and argumentation will be interesting.

  2. BTW Julian you might also be itnerested in this story (http://www.counterpunch.org/browne07252006.html) – five ‘activists’ who damaged US planes refuelling in Shannon airport here in Ireland were acquitted of criminal damage on the basis of ‘lawful excuse’

  3. The case is called R (Gentle &Ors) v Prime Minister &Ors, and is available here.

    The reasoning advanced on behalf of the applicants is really rather sophisticated. I comment on this at some length over at my blog, here.

  4. Incidentally, a veritable clone case to teh Irish one linked here by fdelondras recently played out in the Uk as well.

    There, the defence of ‘lawful excuse’, based there on the prevention of a crime of another (the crime of aggression being committed by the US, the UK, and their leaders), was thrown out, at last instance by the House of Lords: R v Jones (Margaret) [2006] UKHL 16, [2006] 2 WLR 772.

    Their Lordships held that the crime of aggression did exist in international law, but not (ipso facto or by any other route) in English law.

    I also posted a few comments on this at the time: see here.

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