• In the case of R (Gentle) v Prime Minister [2008] UKHL 20, it was found that Article 2 of the European Convention on Human Rights does not need Members of the European Union to require their armed forces to ensure they weren’t sent on operations deemed illegally valid which would contravene international law principles.

Facts of the Case

  • Cs were Rose Gentle and Beverly Clarke who applied for an independent inquiry into the details of the details that was made to invade Iraq in 2003.
  • Cs’ application for the above was rejected in 2005.
  • Subsequently, Cs sought judicial review of the Government’s refusal to undergo an independent inquiry pursuant to Article 2 of the European Convention on Human Rights.
  • Cs asserted that the UK breached Article 2 of the Convention Rights by sending out armed forces to Iraq in the absence of taking reasonable measures to ensure it was legal to do so as per international law principles.


  • Was the UK in breach of Article 2?

Held by the House of Lords

  • The House of Lords refused Cs’ application and held that there was no obligation under Article 2 of the European Convention on Human Rights to take reasonable care when sending out armed forces.

Lord Bingham

  • Lord Bingham clarified the position posed by Article 2 and found that it isn’t a significant factor in the decisions made by Member States when sending out armed forces to operations which included a risk of fatality.
  • “Even if, contrary to my conclusion, the appellants were able to establish an arguable substantive right under article 2, they would still fail to establish a right to a wide-ranging enquiry such as they seek. Nothing in the Strasbourg case-law on article 2 appears to contemplate such an enquiry.” [9]

Baroness Hale of Richmond

  • Baroness hale confirms the positions and finds that Article 2 does not impose any substantive duty on Member States, and therefore no valid investigation arises pursuant to Article 2 of the ECHR.
  • “In my regretful view, therefore, the appeal fails at the first hurdle. It is not a breach of the substantive duty in article 2 to send the troops to fight in an unlawful war. Hence the article 2 duty to investigate does not arise. But had it been otherwise, I would have been inclined to accept the other planks in the appellant’s arguments. As I understand it, it is now common ground that if a Convention right requires the court to examine and adjudicate upon matters which were previously  regarded as non-justiciable, then adjudicate it must.” [60]