Iraqi ghosts return to haunt Blair

Published 18th May 2017

In 2003, the UK and the US charged into Iraq on the basis of faulty intelligence pointing to the housing of weapons of mass destruction and allegations that Saddam Hussein was supporting Al Qaeda. The consequences of these actions have come back to haunt former Prime Minister Tony Blair who is currently being pursued for allegedly committing the crime of aggression. Reports from the UK Guardian Newspapers indicated that this week, a judge is to decide whether the case will move forward.

A private criminal prosecution was brought against Tony Blair in 2016 where a Westminster Magistrates Court judge ruled that Blair had immunity from criminal charges relating to the invasion of Iraq. The prosecution was brought in the name of General Abdul-Wahid Shannan ar-Ribat, who is a former Iraqi army official. Lawyers representing Ar Ribat have taken that decision on judicial review and a senior judge of the High Court will decide whether to grant judicial review. The UK attorney general is seeking to intervene in the matter to block such a review allegedly on the basis that the crime of aggression is not, strictly speaking, on the UK domestic statute books. However, it is a crime under customary international law.

Before the early 20th century, waging war was not a crime under international law. The crime of aggression began to crystallize under the Covenant of the League of Nations in 1919, where it was recognised that respecting and maintaining “territorial integrity and political independence of Members of the League” was important. Later, under the Charter of the United Nations, the use of force challenging the territorial integrity of any state was prohibited. Individual liability for aggression, as opposed to state liability, only attained recognition thanks to the laws governing the Nuremberg Trials, where individuals were held liable for the crime of aggression.

Many British families who lost loved ones during the war have expressed the need for legal recourse, be it against the Ministry of Defence or Blair himself. In the eyes of the bereaved families, the invasion of Iraq was senseless, reckless and ill conceived. The July 2016 Chilcot Report, otherwise known as the Iraq Inquiry Report, seemed to add fuel to the calls for legal action as it too, among other important conclusions, indicates that all peaceful options had not been exhausted at the time the UK decided to join the invasion.

The Inquiry, established during Former Prime Minister Gordon Brown’s tenure in office, required its Committee to examine the UK’s involvement in Iraq, “including the way decisions were made and actions taken, to establish as accurately and reliably as possible what happened and to identify lessons that can be learned.”

As pointed out in the Chilcot Report, the UK’s participation in the invasion marked the first time since the Second World War that such a drastic course of action was taken against a sovereign country.

Granted, the invasion removed a despot from power, but it also resulted in the deaths and displacement of thousands of people. It left the nation of Iraq in ruins. Iraq today is ravaged by suicide bombs and debilitated by the rise of militant Islamist groups.

For many Iraqis, and those who have grown weary of the precipitous attacks conducted by the US and the UK, justice is essential. The UK’s conduct in Iraq is under preliminary examination at the International Criminal Court, but that examination pertains only to war crimes and not the crime of aggression.

UK troops have been accused of torturing and ill treating Iraqi detainees in Iraq. Acts of torture include, battery, food and sleep deprivation, sexual assault and rape, the use of stress positions and electrocution. They have also been accused of unlawfully killing 319 people.

This situation has been under preliminary investigation since May 2014 and it is unclear if it will indeed move to the investigation phase. If the ICC did have sufficient grounds to move to the investigation phase, it would have a massive impact on international criminal justice and would do a great deal of good for the ICC’s reputation. The ICC has been accused, somewhat unfairly, of selective justice and of prosecuting “weaker” states only. A trial involving one of the major western powers could significantly shift this perception. However, the principle of complementarity must be obeyed. Thus, if the British show that they are genuinely willing and able to prosecute war crimes -then the ICC will have to give precedence to credible domestic prosecutions.

It is unclear when the verdict in the Blair case will be revealed to the public. Should this trial take place, it too will have a massive impact on the discussions and decisions that govern British foreign policy. It could also set a very interesting precedent which might inform and influence future military engagement.

** This article originally appeared in the Star Newspaper on 18 May 2017

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