This post was contributed by Professor Bill Bowring, of Birkbeck’s School of Law. Here, Professor Bowring looks into the outcome of the Chilcot Report, published this week, and whether former Prime Minister Tony Blair and the others found responsible for taking the UK into Iraq are still in the frame for a war crimes trial.The Chilcot Report has now been published, and my colleague Dr Fred Cowell has already published an excellent Birkbeck blog analysing its main findings. The Report provides damning conclusions as to how the UK found itself at war, and as to the disastrous consequences. Chilcot’s team did not include lawyers, and his terms of reference did not permit findings as to the legality of the invasion and occupation of Iraq in 2003, or as to liability in the courts, especially criminal liability.
In fact, the war was illegal, and a violation of the Charter of the United Nations. That was the opinion of the former Secretary-General of the United Nations, Kofi Annan, on 15 September 2004; of the late Lord Bingham in his magisterial text The Rule of Law; and of the Foreign Office’s own legal advisers, as Elizabeth Wilmshurst, who resigned over the issue, has very recently repeated. She said “We ignored the rule of law – the result was Iraq.”
So the question remains: could Tony Blair and others face international prosecution?
On 5 July 2016 Geoffrey Robertson QC wrote in The Guardian “Putting Tony Blair in the dock is a fantasy”. He meant prosecution for the crime of aggression, for which the Nazi leaders were prosecuted in the 1945 Nuremberg trials. This is “the use of armed force by a State against the sovereignty, integrity or independence of another State”. When the International Criminal Court was established in 1998, the Rome Statute, the international treaty which created it, included a crime of aggression. But this has not yet come into force and cannot do so before 2017. But Robertson, who was quite right about the crime of aggression, did not turn his attention to prosecution for war crimes.
According to The Daily Telegraph this was not possible either. On 2 July 2016 it published an article under the headline “Outrage as war crimes prosecutors say Tony Blair will not be investigated over Chilcot’s Iraq war report – but British soldiers could be”.
Two days later, on 4 July, the Prosecutor of the ICC, Fatou Bensouda, elected in 2012, issued a strongly worded Statement, correcting the assertions made by the Daily Telegraph. She was obliged to remind her readers that her office is presently carrying out a “preliminary examination” into what happened in Iraq between 2003 and 2008. This was announced on 13 May 2014. It was the result of a complaint by a German NGO, ECCHR, and the Birmingham law firm, Public Interest Lawyers (PIL) – which represented the family of Baha Mousa, the Iraqi hotel receptionist tortured to death by British troops in 2003. The complaint concerns more than 60 allegations of war crimes – unlawful killing and systematic detainee abuse – by British troops in Iraq.
Bensouda stressed that the Chilcot Report will be taken into account by her, and stated: “Suggesting, therefore, that the ICC has ruled out investigating the former British Prime Minister for war crimes but may prosecute soldiers is a misrepresentation of the facts.”
She also emphasised that the Court can exercise jurisdiction only when a state is unable or unwilling to genuinely investigate and prosecute the perpetrators.
She will therefore take into account the fact that on 22 January 2015 David Cameron ordered a “clampdown on ‘spurious’ legal claims” against members of the UK military for war crimes in Iraq. This came 13 days after the Iraq Historic Allegations Team (IHAT) sent letters to around 280 British soldiers, informing them that they were under investigation.
The head of IHAT had previously stated that some soldiers could face criminal prosecution for war crimes. There have been no convictions. And a year later Cameron launched an assault on the lawyers taking the cases, calling for them to be disciplined.
Tony Blair and the others found responsible for taking the UK into Iraq, are, therefore, most certainly still in the frame.
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