Could Tony Blair and others face a war crimes trial?

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.

Tony Blair, UK Prime Minister (1997-2007) (8228591861)

Could former Prime Minister face a war crimes trial in the aftermath of the Chilcot Report?

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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Chilcot Report: The consequences for International law

This post was contributed by Dr Frederick Cowell, lecturer in Law at Birkbeck. Here, Dr Cowell, offers an initial analysis of the report of the Iraq Inquiry from the perspective of its consequences for international law. Published today, the report follows a seven-year investigation into Britain’s involvement in the Iraq War.

Iraq-machine-gun-1174173_1280

The Report of The Iraq Inquiry (known as the Chilcot report) was released today. Unlike its predecessors, the Hutton Inquiry and the Butler Report which examined individual elements of the build-up to the 2003 Iraq war; this had a much more wide ranging brief to examine all of the causes of the Iraq war. Its wide ranging focus meant that it took over seven years to complete but this is justified given the complex nature of the conflict and Chilcot is careful to put things into a historical context beginning with the UN response to the 1990 invasion of Kuwait by Iraq.

The report is fairly unequivocal in its criticism that the 2003 war was ill planned and had a highly problematic legal basis, with Sir John Chilcot saying in his press conference that “the circumstances under which the UK decided there was a legal basis for war were far from satisfactory”.

There are some serious questions to be asked about the nature of government and structures in the UK in particular the Joint Intelligence Committee (JIC) – the body in the Cabinet Office responsible for directing the national intelligence organisations and running intelligence in government. In the executive summary the report criticises the JIC for conveying “certainty” in their intelligence assessments “without acknowledging the limitations of the intelligence” at hand. There is also some strong criticism of Tony Bair not least his commitment to stand by the then President of The United States, George W. Bush in the invasion of Iraq.

This is a brief overview of the some of the key points of the report with respect to the consequences for international law.

  • The Illegality of the War

It is important to note that the report is not the judgment of a court and therefore does not give any rulings about whether or not the actions of the UK government were definitively illegal. It is also not possible as things currently stand to prosecute Tony Blair at the International Criminal Court for ordering the invasion of Iraq (I explain why here). Nevertheless the report makes it clear that the decision to invade Iraq was of highly suspect legality. Under the UN Charter military action is permitted to enforce the decisions of the UN Security Council. But this has to be explicitly authorised by the UN.

The report notes on page 27 of Volume 1 that the assumption that there is a “residual right for individual Members to enforce Security Council decisions” cannot be considered correct. After the invasion of Kuwait in 1990 the UN Security Council had authorised UN military action to liberate Kuwait and then in response to the worsening humanitarian situation in Iraq authorised military action to protect civilians (in the form of No-Fly zones).

UN Security Council Resolution 1441 of November 2002 demanded that weapons inspectors be readmitted into Iraq to begin an extensive uninterrupted programme of weapons inspection and warned that unless Iraq cooperated “fully in the implementation of, this resolution” it would constitute “a further material breach of Iraq’s obligations”. In this context the advice given to by the Attorney General to the Prime Minister on the 11th of March 2003 made it clear that Resolution 1441 was “capable of reviving” the authorisation of Resolution 678 which authorised action against Iraq in 1991. This as several scholars have argued was a very thin basis for legality and the report is highly critical about the fact that the different views were not put to the Cabinet in making this decision, in particular the conclusion that a Security Council resolution explicitly authorising military action was necessary.

The upshot of the Chilcot report in this area is likely to be a strong restatement of the principle that any military action without explicit Security Council authorisation is illegal. In Libya in 2011 this was obtained but resolutions on Syria have not explicitly authorised the use of force in relation to the ongoing military action in Syria, although there may be an alternate legal basis for such action. The report also concludes that Britain was wrong to conclude that in 2003 Saddam posed a threat to the UK, justifying the use of force under the principles of self-defence in international law. However, on page 66 of volume 1 it notes that in the mid-1990s the sanctions regime was preventing Saddam Hussein developing missiles with the capacity to launch weaponised biological agents, indicating that the sanctions regime on the county was at least partially effective.

  • Humanitarian Intervention

Since the mid-1990s in the aftermath of the Rwandan genocide international lawyers and policy makers have debated the creation of a doctrine of military intervention into a state where crimes against humanity and Genocide are occurring. In 1999 NATO forces attacked Serbia to prevent attacks on Kosovans and although this lacked specific authorisation by the Security Council an international commission later concluded that the invasion was “illegal but legitimate”.

Professor Bill Bowring has criticised this conclusion noting that it paved the way for the legal advice that the Iraq war was illegal. In 2004 and 2005 a UN Commission looked at the creation of a legal doctrine of the Responsibility to Protect, which by 2009 had emerged as a general set of principles rather than a definitive legal doctrine. The principle moral argument behind humanitarian intervention JL Holzgrefe argues is that it is act utilitarian – in that it justifies action on the basis of favourable outcomes – rather than rule utilitarian – which justifies acts on the basis of existing rules designed to aggregate general well-being. This was the point of Tony Blair’s 1999 Chicago speech which set out the basis of humanitarian intervention; war was dangerous but often less dangerous than letting a dictator commit human rights abuses.

The Chilcot report’s conclusions on the aftermath of the war and long term planning arguably undermine the claim that the Iraq war could be justified on humanitarian grounds. It notes in section 7 of the report that “the diplomatic options had not at that stage [when the war started] been exhausted” and criticises the way that the build up to the invasion was run to a strict military timetable rather than considering a political solution. Furthermore it details in some depth how the post-war planning did not include any real planning as to how the post-invasion situation in Iraq would be managed or what would be put in place to enable transition.

What is particularly damning in the light of subsequent developments in Iraq is the transcript of a JIC report in April 2003 which noted that “the local population had high hopes that the Coalition would rapidly improve their lives” but that resentment “could grow quickly if it is seen to be ineffective” (Vol 8 p. 474). The impact of this for the doctrine of humanitarian intervention is likely to be that much more attention is paid to the impact of military action in post-conflict societies in subsequent debates on the doctrine’s legality as that is the only way for the principle to be consistent with any form of legal or moral principle.

  • The Authority of the Security Council

The Security Council under the UN Charter is the supreme decision making body on matters relating to the interpretation of the Charter and the use of force under Chapter VII of the UN Charter. As studies of international organisations have shown, the UN Security Council’s decisions and Resolutions have a reasonably high degree of compliance because the UN has a form of content independent legitimacy to it and it is believed as an institution. The Chilcot report is very critical of the British government for undermining the authority of the Security Council in the run up to the 2003 war. It notes that they were aware that if they tried to get a Resolution explicitly authorising the invasion of Iraq that it would be vetoed by other Security Council members.

Dr Frederick Cowell

Dr Frederick Cowell

It also notes that the diplomatic process was undermined to the extent that prior commitments to military action were “allowed to dictate the diplomatic timetable” (vol. 6 p.631). This undermined not only the authority of the UN but the weapons inspectors themselves who were not allowed to complete the function that had been entrusted to them. The UN Security Council is facing a series of unprecedented threats to its legitimacy due to ongoing issues in Syria and the Ukraine and the details of how the US and UK were able to subvert its by-pass its authority are likely to exacerbate this.

There is likely to be a lot more to be said about the Chilcot report, which is nearly 2 million words long, and this only a preliminary assessment of the consequences for international law.

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Media coverage of the Iraq invasion

This post was contributed by Dr Tim Markham, Reader in Journalism and Media in the Department of Media and Cultural Studies.

The build-up to the tenth anniversary of the invasion of Iraq has featured a lot of media coverage about media coverage. Dodgy dossiers and sexed-up briefing reports have been dusted off with something like affection, while the key players are wheeled out to reprise what have inevitably become hackneyed condemnations and rationalisations, former Prime Minister Tony Blair with that look of stark incredulity that has become his default countenance. There’s nothing unusual about any of this: journalists like to talk about journalism, and the added whiff of nostalgia makes this particular temptation irresistible. It’s true also of war reporting in the post-modern era, with British and American news reports often focussing explicitly on the PR tactics surrounding the toppling of a Saddam Hussein statue or George Bush’s Mission Accomplished jamboree. But there’s a broader problem here, one which I would describe as a kind of ironised distance between our elites and the public, with journalists hovering uncertainly in between.

Iraq didn’t break British politics. Disengagement has many origins, and this was just one of a series of fruitless attempts to find political meaning or even national identity through military intervention. But the prevalence of media management in both political decision-making and as a central preoccupation of journalists gives audiences an easy opt-out, enabling a reflex scepticism about foreign and domestic policy alike. David Cameron was never going to find his Falklands in Libya, not because we’re unsupportive as a nation of the uprisings of the Arab spring, but because any sense of investment in a political system that makes decisions about foreign intervention has been hollowed out.

The atrocities of Abu Ghraib, awful as they were, gave journalists a chance to atone for what is now widely acknowledged as a collective loss of nerve at the beginning of the war. Those images became a kind of functional evil, a way of ‘othering’, as we say in the trade, responsibility for all of the nihilism, politicking and casual dehumanisation that any war entails. But however many of us chanted “Not in my name” on a bleak afternoon in Hyde Park, Iraq was and remains our war. Susan Sontag put this well, describing the photographs depicting abuse of Iraqi prisoners as representative of what we condone, however implicitly, our governments doing: “Considered in this light,” she wrote shortly before her death, “the photographs are us”.

Much has been said about the need for journalists to report war responsibly and humanely, avoiding both the reduction of conflict to spectacle and the blanket victimisation or demonisation of those caught up in it. It would be helpful too if journalists could find a way of covering the politics surrounding military intervention that avoids the feedback loop of jostling egos, sanctimonious moralising and pious outrage.

But the generalised disavowal of political responsibility for what a nation does runs deeper than how it plays out in the news. If editorial responses to military intervention range narrowly from cheerleading to sulking, and with a sardonic knowingness now the chief marker of journalistic professionalism when it comes to foreign policy and domestic politics, then this is only symptomatic of a broader, festering culture of world-weary yet instinctive withdrawal.

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