Following the decision not to prosecute the GCHQ whistleblower Katharine Gun, the suspicion is that the government will do anything to keep secret the advice submitted to it by the Attorney General, Lord Goldsmith, on the legality of the Iraq war. There is a very simple reason why the government would want to do this. If it turns out that the Iraq war was illegal, then Tony Blair could go to prison.
In 2000, the United Kingdom ratified the Rome treaty which created the International Criminal Court. In the run-up to the war, therefore, the government was well aware that an illegal war could spark a prosecution against senior ministers. This is why so much emphasis was placed on weapons of mass destruction: without them, the war had no basis in law at all.
With the failure to find any weapons, Tony Blair’s chickens may now be coming home to roost. His government was one of the most enthusiastic supporters of the International Criminal Court: he might be one of the first world leaders to be indicted by it. For a group of international lawyers, most of them based in Britain, have written to the Prosecutor of the new Court, asking him to look into allegations that the British government committed war crimes during the invasion of Iraq. If the Prosecutor decides that there is a case to answer, Tony Blair, Geoff Hoon and other ministers could end up in the dock.
When the government pushed for the creation of the ICC, it never expected that prosecutions would be brought against itself. It took the complacent view that only “lesser” nations in the third world would ever be prosecuted. Robin Cook, who was foreign secretary at the time, said, ‘This is not a court set up to bring to book Prime Ministers of the United Kingdom or Presidents of the United States.’
The Americans did not believe such general reassurances. They recognised that the ICC could indict their own soldiers and leaders, and so they refused to ratify the ICC treaty. Thus there is no question of President Bush being dragged into the international dock.
But the case against the British government over Iraq is strong. There was no United Nations authorisation for the attack whatever Blair and Hoon try to claim now resolution 1441 was not a mandate for war and there was no claim that a war was necessary to combat an alleged humanitarian crisis, as in Kosovo.
It is true that the International Criminal Court does not yet have jurisdiction over the crime of aggression. This was the central crime of which the Nazis were convicted at Nuremberg, and yet the authors of the ICC treaty decided that they could not agree on a general definition of it. So no prosecution can be brought against Tony Blair for the actual decision to attack Iraq. It is also unlikely that Tony Blair would face charges for genocide or crimes against humanity.
Instead, any potential prosecution would concentrate on the way the war was waged. The ICC most definitely does have jurisdiction over the rules of war. These include the various provisions laid out in scores of Conventions signed over the last hundred years, of which the most famous are those drawn up in Geneva, and which are drawn together and summarised in the ICC’s charter. There is strong prima facie evidence that Britain broke some of those rules, or was complicit in breaking them, and this is where the lawyers have concentrated their fire.
Since we went to war to eradicate WMD, they ask, did we confine our attacks to alleged weapons factories or storehouses in Iraq? Or were the attacks motivated by a desire to ensure regime change, rather than destroy Iraq’s alleged WMD capability? Both the British and American governments agreed to the bombing of a whole range of targets which had nothing to do with alleged weapons facilities. For instance, the well-publicised attack on a Baghdad restaurant, where Saddam Hussein was supposed to be having lunch, could easily be deemed illegal. And what about the attacks on TV stations in Iraq or on civilian means of transport? Britain would have to explain how these were linked to the weapons programme. If it turns out that the real goal was regime change, and not the elimination of weapons of mass destruction, then there is a case for saying that illegal acts may have been committed.
Then there are the rules about the proportional use of force, and rules about doing one’s best to avoid civilian casualties. Cluster bombs and bunker-busters were dropped on Iraq, killing and maiming large numbers of civilian. Some estimate that 7,000 – 10,000 civilians were killed. If it came to court, the Government would also have to prove that all precautions were taken to minimise civilian casualties and damage to civilian objects.
The eight lawyers even argue that Tony Blair could be investigated for crimes committed by the Americans. If it can be established that some of the Americans’ actions were illegal under the ICC’s charter, then the British government might be accused of complicity in a ‘joint criminal enterprise’ with the US.
The official line from the Ministry of Defence is that the ICC Prosecutor would not dare override the domestic judicial procedures of an advanced democracy like ours. But what if he deems that the Attorney General himself, who is responsible for bringing prosecutions for war crimes committed by British subjects, is himself hopelessly compromised? The ICC Prosecutor might decide that his own authority would suffer greatly in this, a test case, if he failed to open an investigation. He may argue that, because Britain was one of the most enthusiastic initiators of the ICC project, it should take a lead by submitting to its jurisdiction.
In the event of a conviction of Tony Blair or other ministers, any sentence would be based on the precedents set by the currently existing International Criminal Tribunal for the former Yugoslavia (ICTY), created in 1993. The longest sentence which the new International Criminal Court can impose is life imprisonment, like the ICTY. But the longest sentence which the ICTY has in fact imposed is 46 years, for genocide (General Krstic, a Bosnian Serb). A Bosnian Croat general, Blaskic, was given 45 years for various violations of the laws of war. These are exactly the kinds of acts for which Tony Blair might himself face prosecution.
Many opponents of the Iraq war would take great pleasure in seeing Tony Blair walk into a trap of his own making. But there are dangers in handing over power to decide the rights and wrongs of a war to a foreign international organisation. In practice, modern international humanitarian law has very little to do with the traditional laws of war. In the past, war crimes were dealt with by courts martial, ie by military lawyers who were themselves soldiers, and who knew what war was really like. By contrast, modern international tribunals are fundamentally political. They are stuffed full of human rights activists who have never been in battle, and who are both politically motivated and politically correct.
Their political motivation can be seen in the fact that ministers, not soldiers, are in the lawyers’ line of the fire on Iraq. How can the political decision to go to war be subjected to the adjudication of judges? The politicisation is also visible in the fact that many humanitarian lawyers who protest against the Iraq war today were happy to go along with the attack on Yugoslavia in 1999, even though there was no legal basis for that war either. The ICTY has refused to open an investigation into allegations that NATO had itself committed war crimes against Yugoslavia.
The ICC treaty allows the Prosecutor to open an investigation if a signatory state is ‘unwilling’ to do so itself. If our Attorney General fails to act, some people will be delighted at the thought of foreign judges indicting the British prime minister. But, in my view, that would be a terrible day for British democracy. It would show that our own judicial and political system was incapable of holding our own leaders to account. And yet, in the last resort, the only people responsible for our leaders and their acts are the British people themselves.
Originally published in The Mail on Sunday (UK).