There are few legal justifications for waging war. Where individual states are concerned, every state has the right to self defence (Article 51, UN Charter), but one must prove an attack on one’s territory has taken place (a breach of the state’s sovereignty) or that an attack is genuinely imminent. The only other legal military action is that properly authorised by the Security Council, whether for peace-keeping, intervention or to enforce international law.
People want to see Blair tried for war crimes, crimes against humanity and the supreme crime, the crime of aggression. But another crime was committed when we invaded Iraq and, more importantly, which has now been confirmed by papers released since the invasion and by evidence from the Iraq Inquiry. The crime that Blair committed knowingly, deliberately and because, in his own words “I believe I was right” is regime change.
There is no basis in international law for regime change. So found a Dutch legal inquiry into the Dutch government’s decision to back the invasion of Iraq. So, said Sir William Patey to the Iraq Inquiry, senior British officials advised when they looked at a proposal for regime change in Iraq in late 2001. A Downing Street memo in March 2002 says: “A legal justification for invasion would be needed. Subject to Law Officers advice, none currently exists…regime change by military means… would require the construction of a coalition and a legal justification… A full opinion should be sought from the Law Officers if the above options are developed further… Of itself, REGIME CHANGE has no basis in international law.” It also, tellingly, has this to say: “In the judgement of the JIC there is no recent evidence of Iraq complicity with international terrorism. There is therefore no justification for action against Iraq based on action in self-defence (Article 51) to combat imminent threats of terrorism…”
A paper produced by the Cabinet Office in July 2002, discussing the military aspects of invading Iraq, recognises both the US aim of regime change, and the need for lawful justification. To quote: “US views of international law vary from that of the UK and the international community. Regime change per se is not a proper basis for military action under international law”. And in her evidence to the Iraq Inquiry, Elizabeth Wilmshurst revealed that not a single legal adviser within the Foreign Office believed the war to be legal. All the advice being given to Blair from 2001 onwards was that invasion for the purpose of regime change was unlawful.
And here lies the reason for the ‘dodgy dossier’, for Blair’s insistence on Saddam’s weapons of mass destruction, the infamous ’45 minutes’, for the legal opinion on an A4 sheet of paper and the ‘real and present threat’ he convinced Parliament this country was facing from Iraq. That the whole thing was an inflated tissue of lies built on very doubtful intelligence did not matter to him. That he stood up in the House of Commons and lied to Parliament did not matter, although that in itself was a serious offence deserving of punishment. What mattered was that it was necessary to prove that Britain was under threat of imminent attack. Failing a UN resolution authorising force, only this would make his drive to war legitimate. And he was committed to going to war. Bush and his team cared little for legality, world opinion or that of their own citizens. But Britain on the whole is a law-abiding country, and Parliament would only back Blair if they could be convinced the invasion would be legal.
Now that we have so much more testimony and paper evidence of Blair’s knowledge of the lack of evidence for WMD, for his dismissal of all the legal advice he was being given on the issue of invading Iraq, for his early commitment to regime change knowing full well it would be illegal, and for the lies he repeatedly told the country and Parliament in his bid to persuade us to back his eagerness for war, where do we start? This breach of international law is considered part of the crime of aggression1 by the ICC, but as we have seen, the invasion of Iraq will not be covered, having taken place before the crime of aggression becomes prosecutable. What should we prosecute him for, now that we know we cannot pursue this route?
Regime change was considered illegal in international law, regardless of the ICC, and the only other international option is the ICJ, which ‘settles disputes between states’. The only state that could justifiably go to the ICJ with this would be Iraq itself (it’s always a good idea to install a friendly government in the country you have invaded and occupied. It avoids problems like this). Many hold that Iraq’s current government is illegal, and one could perhaps find enough surviving members of the pre-invasion government (illegally overthrown) to take a dispute to The Hague. But one would still have to cope with the Security Council’s vetoes.
However, a recognised body could possibly initiate something by seeking an advisory opinion/ruling on Blair vis á vis regime change – a route worth exploring perhaps, but it would be a long and difficult route, with no real result at the end.
Prosecuting Blair in Britain
On the domestic front, and he is after all a British problem, could he be prosecuted for committing our Armed Forces to effecting an illegal regime change, or indeed any of the other illegal acts they committed during the invasion and occupation of Iraq? Yes, each serviceman or woman should be held responsible for their individual acts, but Blair was at the head of the chain of command, and carries the ultimate responsibility.
Could we seriously try for a private prosecution? What are our options? We could still go for war crimes and crimes against humanity, as covered by the ICC Act 2001. John Pilger suggests using the Proceeds of Crime Act. As Felicity Arbuthnot demonstrates, Blair has accumulated millions out of the contacts he made from his decision to invade Iraq. Another possibility, considering his lies to Parliament, his manipulation of, and misrepresentation of, the intelligence he was given, the financial deals he has set up and his fight to keep those secret despite regulations, would be his abuse of office.
A private prosecution would bypass the CPS, but may have to be done quickly as one needs a universal jurisdiction arrest warrant. To quote another government source:
The Government has, after careful consideration, decided that it would be appropriate to require the consent of the Director of Public Prosecutions before a universal jurisdiction arrest warrant can be issued to a private prosecutor. A suitable legislative amendment will be brought before Parliament at the first opportunity.
They say they want to avoid people using this action to make political statements or cause embarrassment, but they need to be reminded that nothing should hinder any individual or group from seeking justice. Sheer expense will make people think carefully before taking such an action, and there are many better ways to cause embarrassment. And as with seeking an advisory opinion from the ICJ, it would be best to build a coalition of responsible and serious British organisations and citizens, rather than relying on an individual or a campaigning organisation. A coalition would be far more likely to obtain a universal jurisdiction arrest warrant, should we need the consent of the Director of Public Prosecutions.
One could find however, that any private prosecution that gets to court would face government QCs as well as the best lawyers Blair’s money and influence can buy. This takes serious money. Given the possibility of getting Blair into a British or any other court, there would be a queue of international lawyers offering their services for free. But, and this is an essential ‘but’, funds must be available to cover the costs of the other side should one lose. Put all the peace campaigners and our cash-strapped organisations together, and we would still not have the money to go up against Blair’s millions. The only answer to that is to engage the backing of some seriously rich people who are committed to peace and law.
One thing I am sure of – if it were clear that somebody pursuing a private prosecution did have the financial resources to cover the other side’s costs, then it would be very likely that the party (aka Blair) being prosecuted would attempt, quite desperately, to settle out of court – which, in the interests of law and creating a precedent, would have to be, absolutely must, be refused.
And there is one further thing to consider – the small but constant drip of courts, juries and judges upholding the law in the face of strong government or corporate opposition. Juries failed to agree, resulting in the judge having to find the Fairford Five not guilty for damaging USAF equipment at Fairford airbase; judges ruled on publishing previously hidden documents, as in the Binyam Mohammed case; they ruled in favour of CAAT and the Corner House over BAE Systems corruption and bribery; the European Court of Human Rights ruled against the UK government following the ‘McLibel’ case; and most recently, a judge found SmashEDO activists in Brighton not guilty for ‘decommissioning’ EDO’s factory which supplies Israel. We have to remind ourselves that, although we are fighting against ‘the system’, many people within that system feel as we do, and are as committed to law and the truth as we are. We have to keep going because sometimes the system is on our side.
In 2003-4 people’s anger over the illegality of the invasion ran hot. That anger has not gone away. It has become a cold analytical anger that still seeks justice, justice for the Iraqis and their ruined country; justice for the dead and injured soldiers and their families; justice too, for the damage done to our own country, our civil liberties and our so-called democracy. Until Blair is made fully accountable for his actions we are not free from this shame. That is why, in this morass of law and politics, we must go on searching for a way that furthers, endorses and upholds both international and domestic law, and we start by getting Tony Blair into court.
- “For the purpose of paragraph 1, “act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.” Kampala resolution. [↩]