Tuesday,25 September, 2018
Current issue | Issue 1342, (27 April - 3 May 2017)
Tuesday,25 September, 2018
Issue 1342, (27 April - 3 May 2017)

Ahram Weekly

The invasion of Iraq — a war crime?

A new case against former UK prime minister Tony Blair for his role in the 2003 US-led invasion of Iraq is again raising questions about his responsibility, writes Richard Norton-Taylor

Successive British governments have repeatedly dismissed talk of prosecuting former UK prime minister Tony Blair over the 2003 US-led invasion of Iraq, insisting that after several UK inquiries and despite the continuing terrible consequences there is no more to be said.

Now, intriguingly, the British government’s own chief law officer has intervened in an attempt to stop a private prosecution of the former prime minister. The British political, military, and civil service establishments may not be quite as untroubled as they make out.

British governments have traditionally defended the principle that they and their predecessors must be immune from criminal prosecution over policy decisions they took while in office. After all, they add, the UK’s role in the invasion of Iraq was supported by a majority of MPs in the House of Commons, the lower house of the UK parliament.

A spokesman for the UK attorney-general, Jeremy Wright, said that “he is seeking to intervene in this case because it raises issues about the scope of criminal law. It is not unusual for the attorney-general to intervene in this sort of cases in order to represent the public interest.”

The case is being brought by General Abdel-Wahid Shannan Al-Ribat, the Iraqi army’s former chief of staff who is now said to be living in exile. He is challenging a ruling at Westminster Magistrates Court in London last year when the judge, Michael Snow, referred to the “implied immunity” covering former heads of state and government ministers.

The judge added that the allegations “involve potential details being disclosed under the Official Secrets Act for which attorney-general and director of public prosecutions’ consent is required.” It is difficult to see how official secrets could be used as a bar to prosecution, or any kind of court hearing, on such a matter, however.

The International Law Commission of the UN codified the principles underlying the Nuremberg Trials following World War II. They included the fact that a person who committed an act which constitutes a crime under international law while acting as a head of state or responsible government official was not relieved from responsibility under international law.

The commission added that “the crimes hereinafter set out are punishable as crimes under international law: (a) crimes against peace: (b) planning, preparation, initiation or waging of war of aggression or a war in violation of international treaties, agreements or assurances.”

In legal advice that would have remained secret had it not been for several leaks amid the continuing controversy in Britain, Lord Goldsmith, then the UK attorney-general, told Blair on 7 March 2003 less than two weeks before Britain joined the US-led invasion that “aggression is a crime under customary international law which automatically forms part of domestic law. It might therefore be argued that international aggression is a crime recognised by the common law which can be prosecuted in the UK courts.”

“In short, there are a number of ways in which the opponents of military action might seek to bring a legal case, internationally or domestically, against the UK, members of the government or UK military personnel. Some of these seem fairly remote possibilities, but given the strength of opposition to military action against Iraq, it would not be surprising if some attempts were made to get a case of some sort off the ground. We cannot be certain that they would not succeed,” Goldsmith said.

Wright, one of Goldsmith’s successors, has stated in the case of Blair and the invasion of Iraq that “it is established by clear and unanimous authority at the highest level that the crime of aggression is not known to English law.” He was referring to a ruling by Lord Bingham of the UK’s Supreme Court in 2006 — three years after the invasion of Iraq — that “it is for those representing the people of the country in parliament, not the executive and not the judges, to decide [what conduct should be criminal].”

The Blair government signed up to the International Criminal Court (ICC) in 2008 that enshrined the crime of “aggression”. But as UK human rights lawyer Geoffrey Robertson has pointed out, its jurisdiction to bring aggressors to justice was postponed until a modern definition of the crime of aggression was agreed.

That did not happen until 2010, and then it was decided that offenders should not be prosecuted until 2017. “Might Blair then be prosecuted,” Robertson asked. “No,” he said, “because it is a fundamental principle that the law is not retroactive: there was not a defined crime in 2003, and it was not within the power of the ICC to do anything about it.”

The Chilcot Inquiry into Britain’s role in the invasion of Iraq heard Elizabeth Wilmshurst, who resigned as deputy legal adviser to the UK foreign office, describe it as a “crime of aggression”. Her boss, Sir Michael Wood, did not resign but told his political boss, the then foreign secretary Jack Straw, that “to use force without UN Security Council authority would amount to a crime of aggression”. Straw replied by saying that “I note your advice, but I do not accept it.”

The Chilcot Inquiry did not express a view on the legality of the invasion. “That could, of course, only be resolved by a properly constituted and internationally recognised court,” it concluded. All it said in its final report was that the way the British government decided there was a legal basis for UK military action was “far from satisfactory”.

Senior British officials have suggested to me that instead of trying to prosecute Blair for the crime of war of aggression, those responsible for the decision to invade could be liable under the Geneva Conventions, which impose a duty on an occupying power to protect the civilian population. That could be a more fruitful path to pursue, they have said.

Disputes about the legality of the invasion of Iraq have made Britain’s military commanders more aware of — or at least more sensitive to — their responsibilities and obligations under international law. They were furious, for example, with former UK prime minister David Cameron when he suggested quite openly that the aim of the air strikes against Libya in 2011 was to topple former Libyan leader Muammar Gaddafi.

“Regime change”, as British officials had warned Blair before the invasion of Iraq, was not a lawful objective.

Michael Mansfield and Imran Khan, the UK lawyers advising on the attempt to privately prosecute Blair, have stated that “if ever there was a case which required the actions of public officials to account for their alleged criminality, we cannot conceive of any better one than this.”

The arguments should be heard, even at this late stage.

The writer is a former security and defence editor at the UK newspaper The Guardian.

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