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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Who remembers Aylan Kurdi now?

This post was contributed by Dr Nadine El-Enany lecturer in Birkbeck’s School of Law. This first appeared on Media Diversified on 4 January 2016

Moments of Mourn held in memory of Aylan Kurdi and other refugees

Moments of Mourn held in memory of Aylan Kurdi and other refugees

Who remembers Aylan Kurdi now? The photograph of the Syrian toddler that so galvanised Europe’s public over the question of refugees seems a distant memory now. Is it that a genuine concern for the wellbeing of refugees has merely been displaced by other political priorities in the minds of Europeans? Or is it that the basis for the mass outpouring of grief and the acts of generosity and solidarity that followed the publication of the photo was always fickle, contingent upon white Europeans’ limited capacity to humanise the other?

What was it about the photo of Aylan Kurdi that so stirred Europe’s public over the question of refugees? Aylan Kurdi was by no means the first child to drown en route to Europe and since his death, more than 70 children have lost their lives off the Greek coast. Since 1993, more than 22, 394 people are known to have died attempting to enter Europe. The actual figure is likely to be much higher. The blood on the hands of Europe’s fortress-makers had long dried before Kurdi’s body washed up on a Turkish beach in September. How did it come about that white Europeans were able, all of a sudden, to humanise the body of a refugee, least of all, the body of a Muslim?

What did white Europeans see when they looked at the photo of Aylan Kurdi? They saw their own sons and nephews in the photo, aptly illustrated by the #CouldBeMyChild hashtag which was trending on Twitter following the discovery of Kurdi’s body. The image was of course particularly potent in depicting the tragic end of a life so young. But was there something else about this particular child that enabled his humanisation by white people, when so many others had died before?

Perhaps it was the innocence evoked by the body of a light-skinned child that enabled the temporary, fleeting awakening among white Europeans to a refugee movement that long-preceded the media spotlight on that photo. The news has moved on, but the situation persists and grows more desperate daily. According to the International Organisation for Migration, an estimated 700,000 people arrived at Europe’s borders between January and October 2015, compared with 280,000 for the entirety of 2014. Refugees fleeing persecution and war in Syria have been trying to reach Europe since 2012. The majority remain in neighbouring countries in the region, with only 10% of those fleeing Syria seeking protection in Europe. Many have perished along the way together with refugees from Afghanistan and Iraq.

Those white Europeans with a new penchant for carrying #RefugeesWelcome tote bags are unlikely to be amenable to the argument that this is the result of an awakening of their conscience made possible by the coincidentally fair hue of Aylan Kurdi’s skin. Yet, research has shown that the extent to which white people feel empathy and humanise others correlates with implicit racial biases, with negative stereotyping of those with darker skin coresponding to a lower level of empathy shown for them. Feelings of empathy are known to encourage cooperation and assistance between human-beings, while an absence of identification with the suffering of others can lead to violence and abuse, both characteristics of Europe’s militarised border regime.

What of the refugees who do not evoke in the mind of the white European an image of their own offspring? The images of black African bodies washed up on the shores of Europe’s mediterranean beaches last Spring did not prompt an equivalent outpouring of compassion and charitable action. What of the bearded male refugee? What of the woman in the hijab or burka? What of their dark-skinned children? These coded images of Muslims inhibit their humanisation. The Islamophobia that thrives in European societies today means that rather than compassion, they elicit feelings of apprehension and fear.

In the wake of the Paris attacks, the British newspaper, the Daily Mail, published a cartoon depicting racialised images of Muslims crossing Europe’s borders along with rats. Poland reneged on its refugee quota agreement following the attacks and more than half of all US state governors have refused to accept Syrian refugees. Meanwhile, Australia declared its policy was to focus its protection efforts on Christian Syrians.Each of these decisions is reproductive of Islamophobia in buying into the idea that Muslims are associated with terror by virtue of being Muslim.

Read the original article on Media Diversified

Read the original article on Media Diversified

Rather than acknowledge the racism endemic in European societies, many white Europeans prefer to see the dehumanisation of refugees as merely an expression of anti-migrant sentiment, or different values, or viewpoints in what is presented as a fair debate on migration. In what amounts to a dangerous apologia for racism, Slavoj Zizek has categorised the claims of anti-immigrant populists as being about the “protection of our way of life” and argued that the claim Europeans lack empathy for the suffering of others is “merely the obverse of…anti-immigrant brutality”. In a move demonstrative of his attachment of negative stereotypes to refugees, Zizek insists that it be “made clear” to them that they are to “respect the laws and social norms of European states” which entails “No tolerance of religious, sexist or ethnic violence”, as though sexist, racist and religious violence were not fundamental aspects of European life.

While Aylan Kurdi’s light skin colour may have allowed white Europeans to humanise him and partake in large-scale charity-giving, petition-signing and demonstrations, their children could not of course have met Aylan Kurdi’s end. It was, after all, the ancestors of the white Europeans tweeting selfies taken with their babies as they headed for their nearest #RefugeesWelcome march who colonised the lands from which these desperate people come. And it is white Europeans occupying positions of power and privilege today who continue to give orders for bombs to be dropped on their homes.

Absent from the #CouldBeMyChild hashtag was an understanding of the specificity of colonial histories and present imperial wars and the way in which these structurally determine positions of power and privilege as between white people and people of colour. Refugees are here, their bodies washing up on European beaches, because white Europeans were, and continue to be, there.

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Unavoidable distractions

This post was contributed by Alexis Alvarez Nakagawa, PhD Candidate and associate tutor in the School of Law

“After each death, I find myself mouthing a cumbersome chain of lawyerly words, hoping for ironclad prosecution and maximum sentences, to bring to justice those who have killed Rekia Boyd, Tamir Rice, Mike Brown, and numerous others. I hear myself invoking the heroic terror of the criminal justice system. I make no illusions that this will spackle the gaping fault of the United States’s racial terrain.

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To digress for a moment, I also work on refugee law, and though I support and believe in refugee claims for securing better lives for individual applicants, these prosecutions seem to me much like the promise of refugee law to affect real change: vacant. The international refugee law system, while important to scores of individual claimants, represses a more meaningful commitment to free movement and serves to further stabilize and legitimize a system of border violence and geopolitical exploitation.

 

Criminal prosecutions in these cases of police murder are (sometimes) offered as individual sanctions only after the harm has been done, and they do not seek to reduce the widening net of carceral politics. But then again, is this the time to abandon the use of criminal justice?”

Eddie Bruce-Jones, Black Lives and the State of Distraction.

Eddie Bruce-Jones’ article Black Lives and the State of Distraction, which appeared in at the Los Angeles Review of Books last week, is a beautifully written and insightful short piece that shows the difficulties and tensions that arise for anyone who tries to think critically from and through the experience of being involved, at some stage of their life, in the criminal justice system and tries to relate this experience to a broader agenda of social change and political emancipation.

However, perhaps what is most striking about Eddie’s article, beyond his thoughtful analysis is his sensibility in approaching very difficult political and theoretical issues. A sensibility that shows that this piece was written not only as a insightful meditation about the barbarities and paradoxes of the system, but also by the stroke of a cathartic impulse –an impulse that many of us feel from time to time – that departs from the unpleasantness of and discomfort with current theoretical standpoints in criminology and criminal justice studies.

In what follows, I would like to deploy some thoughts that focus more on where I might disagree with Eddie, even if I really feel identified with his mood and even when I believe that, very probably, he will identify with my own. That is why, more than to formulate some serious objections to his thinking, I would like to suggest a slightly different but complementary approach with the ultimate aim of opening up a discussion. Thus this commentary on Eddie’s work is also an invitation to debate to anybody that would want to add or move forward our ongoing conversation.

Dr Eddie Bruce-Jones

Dr Eddie Bruce-Jones

I would like to formulate three brief points of difference with Eddie’s piece.

1) Maybe I should begin by stating that I sadly believe that there is no effective way, for the moment at least, to provide some kind of real and effective reckoning of state violence within an abolitionist framework. I have to wonder, on this point, what we would do in these cases of structural violence, of racism and sexism if we do not plead for “justice” or at least for the application of the same standards that allegedly everybody would receive in those circumstances?

I recall that Nils Christie, one of the founders of the abolitionist theoretical and political movement, used to say that even in the cases of state violence (more precisely, he was speaking about genocide) an abolitionist position would be to sit the “perpetrators” and the “victims” together so that they can negotiate towards a solution (and also maybe a “reconciliation”). Besides this solution not seeming very “practical” in our current cultural context, more importantly, in many respects, this approach seems familiar to some past failed experiences and, more precisely, similar to the “state mandated reconciliation” of South Africa’s transitional process. Though, we know with some detail how this story ends: nothing changed very much in South Africa in the wake of its transition to democracy.

On the contrary, we can suggest that this transition legalized a “double way” system in which the state violence was acquitted in exchange for lean confessions, while still all the inhabitants at the margins of South African society continued to be “processed” by a very racialized criminal justice system. In other words, they legalized what we already have in fact in every criminal justice system around the world.

2) One thing that needs not to be left out of view, I believe, is that abolitionist strategies can also legitimate undesirable agendas (such as prosecutions, as Eddie points out). Leaving aside how many abolitionist strategies and alternatives to prison have been used so far to extend the scope of the criminal justice system and with that the framework of social control (rather than reducing them as was the original idea), I think that this strategy, in this context of state violence, can even also be used to legitimate the grounds of an state of exceptionality (in other words, “impunity”) precisely in these, that are what we can call fairly, “the worst cases”.

This is especially true if we know, as we surely do, that the criminal justice and prison system will not disappear in the short term and will continue to exist for all the other “regular crimes”. As Eddie himself has noted to me in a subsequent conversation, it is very hard to envision the end of the criminal justice system without thinking at the same time about abolishing the state and without disclosing the intertwined relationship between law and violence—so hard, in fact, immediately after one starts to seriously contemplate abolitionism, the very idea of it begins to fade away as a too-distant outcome.

But, I may add that, to make matters even worse, if we accept, as I am probably keen to accept, that we need to abolish state sovereignty to be able of practically think about abolishing the criminal justice system, we face a new and more intractable problem: the very idea of sovereignty is so centrally tied to the state as with notions of autonomy, self-determination and freedom that underpin the idea of political emancipation (and which in turn encompass the main goals of abolitionism), that we very quickly reach an unavoidable dead end: we cannot have abolitionism with sovereignty, but it seems that we also cannot have abolitionism without it.

On the other hand, I think that some matters of principle (let’s say “the prison is bad, and therefore we should not take the risk of legitimating it in any case”) may lead us to a form of practical paralysis. Or, in other words, to even worst “distractions” than the distraction of prosecutions: it may lead us to the work of engineering “beautiful distractions” that very probably will not have any political relevance today. Or is it that only prosecutions can be a distraction? Can’t be a purist abolitionist strategy constitute an even worst distraction for current and pressing issues that needs an answer today? I am not saying that we must always surrender to the tyranny of the now, but I strongly believe that the danger and temptation of being “distracted” is equally present in many abolitionist positions. How then can we be able to stand by the side of a radical openness to an alternative future without being distracted from our current, present demands? How can we avoid allowing our radical goals from stealing us completely from this untreatable reality?

Alexis Alvarez Nakagawa

Alexis Alvarez Nakagawa

3) In another but related vein, I believe that still some prosecutions can serve to expose structural violence, racism and sexism and that some criminal trials are more than just distractions and can be good “catalysts” or “triggers” of broader political struggles. And not only that! To some extent, in these kind of cases, not only can (human) perpetrators go to trial, but also in many relevant ways, the state or sovereign violence is put under scrutiny at the dock.

And of course, there is a lot of space there for de-legitimating state violence and even the criminal justice system. It might be possible to think in a way of de-legitimating the structural violence of the system with the tools of the system itself. Can we use the criminal justice system against itself? Can we re-direct its violence against its violence? I believe that precisely in these cases of police violence, racism, sexism and even genocide or other gross human rights violations, we have a very good opportunity to achieve this.

I think that it is even possible, within this framework, to defend a more “up-to-date” abolitionist position: one that of course pursues the same goals as the other more purist abolitionism, but by more unclean, impure and maybe effective ways. Can we find within all this a thread, a hint, the onset of a road towards a new abolitionism? Can be this a good synthesis between a radical openness and an engagement with current pressing issues?

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