Law and Subversion - W. Kaleck's Blog on ZEIT ONLINE
The Iraq invasion is a crime
The US/UK-led invasion of Iraq in spring 2003 is a crime. Hundreds of thousands of people died in the armed conflict that spanned more than thirteen years. All parties, including the USA and the UK, committed war crimes including massacres and torture on a massive scale. We can’t expect any kind of remorse about this from former Prime Minister Tony Blair. The report of the Iraq Inquiry published on Wednesday by former diplomat Sir John Chilcot won’t change that. But Chilcot’s findings couldn’t be clearer. The UK’s decision to join the invasion was premature, made before exhausting all other options. Blair’s government proceeded on the basis of false information. Not only was the intelligence information wrong, the war also lacked a legal basis.
As we look back to the decision to go to war in 2003, we shouldn’t forget that Saddam Hussein and his Syrian neighbor Bashar al-Assad committed grave human rights crimes. In Saddam’s case it was crimes against humanity directed against the Kurdish and Shiite population in his country. The Iraqi dictator’s regime also used the infamous Abu Ghraib prison for systematic torture, decades before the US did. With this in mind it would be wrong to place all of the blame for the destabilization of the region on western military powers. Nevertheless: the war and the occupation by the UK and the US contributed massively to the fragility of Iraq and the emergence of the “Islamic State”.
It is right and important that the UK – unlike many other states – is addressing its political missteps and the breaches of law, including of the UN Charter, from this period. On these questions the report, stretching to thousands of pages, will require a careful assessment. One would hope that illegal acts with such fatal consequences would result in legal sanctions against the political and military figures responsible. The Chilcot report itself provides no legally binding judgment. This would require – as Chilcot points out – a properly constituted and internationally recognized Court.
This might of course bring to mind the International Criminal Court in The Hague – its great predecessor, the Nuremberg Military Tribunal set up to try major Nazi criminals, condemned Germany’s war of aggression as the “mother of all crimes”. But it is not currently possible to conduct investigations or bring charges concerning the crime of aggression in The Hague. The relevant provision first takes effect in 2017, and even then it will apply only prospectively and only to states that opt in.
In the UK, lawyers and politicians are already thinking about using an old law to trigger impeachment proceedings against Blair the bellicist. But it’s worth noting there is a lack of criminal law provisions that would clearly allow the prosecution of the former Prime Minister for wrongdoing.
Work done on this issue by my organization, the European Center for Constitutional and Human Rights (ECCHR), focused on cases of torture and abuse of Iraqi detainees by British military personnel and intelligence agents. In 2014 prosecutors at the International Criminal Court opened a preliminary investigation into this issue. Blair’s Defence Secretary Geoffrey Hoon will hopefully face scrutiny as part of this process.
Further proceedings may establish Blair’s criminal liability for these crimes of torture. Investigations in The Hague, and ideally, in London, should be pushed forward. Impunity for this war of aggression is a deeply unsatisfying outcome. The Chilcot report offers plenty of political lessons to help avert future wars; these should also include the need to make the relevant criminal law reforms.