Invasion of Iraq, a war crime? Arguments against Blair must be heard

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

Now, intriguingly, the British government’s 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 so 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 invasion of Iraq was supported by a majority of MPs in the House of Commons.

A spokesman for the attorney, Jeremy Wright, said: "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 these sort of cases in order to represent the public interest."

Not so immune?

The case is being brought by General Abdul-Wahid Shannan ar-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 are 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.

The International Law Commission of the UN codified the principles underlying the Nuremberg trials following the Second World War. They included that 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. 

It added: “The crimes hereinafter set out are punishable as crimes under international law: (a) Crimes against peace: (i) 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 fierce controversy in Britain, Lord Goldsmith, then attorney general, told Blair on 7 March 2003, less than two weeks before Britain joined the US-led invasion: “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.”

Goldsmith added: “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.”

Defining aggression

Jeremy Wright, one of Goldsmith’s successors, has stated in the case of Blair and the invasion of Iraq: “It is established by clear and unanimous authority at the highest level, 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 the 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?” asked Robertson. “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 Foreign Office, describe it as a "crime of aggression". Her boss, Sir Michael Wood, did not resign but told his political boss, foreign secretary Jack Straw, "to use force without Security Council authority would amount to a crime of aggression". (Straw, replied: "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".

The Geneva path

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.

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 David Cameron, when the then-British prime minister suggested quite openly that the aim of the air strikes against Libya in 2011 was to topple Muammar Gaddafi. “Regime change", as British officials had warned Blair before the invasion of Iraq, was not a lawful objective. Many British officials argued it was a matter of semantics.

Michael Mansfield and Imran Khan, lawyers advising on the attempt to privately prosecute Blair, stated: “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.

- Richard Norton-Taylor is a former security and defence editor at the Guardian. His books include In Defence of the Realm? The case for Accountable Security and Intelligence Services and Truth is A Difficult Concept: Inside the Scott Inquiry. He has written a number of award-winning plays, including Half the Picture, The Colour of Justice, Justifying War, Bloody Sunday, which won an Olivier theatre award, Called to Account, and Chilcot. He is on the board of Liberty, the National Council for Civil Liberties. He has twice won Freedom of Information Campaign awards.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Eye.

Photo: Former British prime minister Tony Blair attends a service of commemoration on Horse Guards Parade in central London on 9 March 2017, in honour of the service and duty of both the UK Armed Forces and civilians in the Gulf region, Iraq and Afghanistan, and those who supported them back home, from 1990-2015 (AFP)