The Charter vs the War on Iraq

Yesterday, the House of Lords issued a ruling whose gravity is demonstrated by the fact that no less than nine Lords were on the bench. It concerned an effort to force the British government to hold an inquiry into the most controversial international law issue of recent times: the legality of the (second) war against Iraq.

The human rights hook is the European Convention’s right to life, which is very similar to Charter s. 9:

Every person has the right to life and has the right not to be arbitrarily deprived of life.

Both international and comparative courts have held that this right has a procedural component: where someone dies in unclear circumstances that may implicate the government, there must be an inquiry into the death. This procedural has a particular force in countries where the rule of law is weak and opponents of the government routinely die in odd circumstances, but it applies everywhere. There’s no doubt that Victorian public authorities (notably ministers) are subject to this obligation under the Charter’s conduct mandate (unless another law makes it reasonable to fail to act.)

The litigants in England – relatives of soldiers killed in the Iraq war – wanted the House of Lords to require Gordon Brown to hold an inquiry, not just into the immediate circumstances of the soldiers’ death, but also into the circumstances that led to the war itself, without which those deaths would never have happened. To no-one’s surprise, all nine Lords refused to make such an order. They each issued separate judgments, but their major concern was that human rights law shouldn’t require an examination of such a high-level policy decision. This could be justified both factually – the legal policy issues are so fine-grained that it would be hard to connect them to the soldiers’ deaths – and legally – by interpreting such policy issues to be beyond the admittedly wide but not infinite scope of human rights jurisprudence. (A couple of judges did take the opportunity to kick the government at little about its warmongering. Like shooting fish in a bottle, of course.)

This decision would be directly relevant in Australia if the Commonwealth adopts a Charter (with a right to life and a conduct mandate.) But I can’t see it making any difference in Victoria. What is unique about war is that it is one of the few occassions when a government deliberately embarks on a enterprise expecting that people will die as a result. Hence, the clash between high-level policy and the right to life. But Australia’s states don’t start wars or anything much like them. The Victorian government’s programmes doubtless do kill people from time to time, but not deliberately, so a full inquiry into the government’s processes won’t involve questioning a policy that is beyond the reach of human rights law.

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