How could the government have taken this country to war on the basis of a legal argument – if the boot were on the other foot – that would fail even to gain access to legal aid?
— Philippe Sands
Many people have already decided that the Chilcot (Iraq) Inquiry and the proposed ‘complicity in torture’ inquiry (chaired by Sir Peter Gibson) will turn out to be whitewashes, that there will be no damning judgments or callings to account of the politicians and officials involved. And it is true that Chilcot’s panel, lacking both the legal knowledge and authority, will be unable pass judgment on the legality of the Iraq invasion. But does that matter? Not necessarily, according to Professor Philippe Sands QC, speaking at the Imperial War Museum in London on Remembrance Sunday.
In his lecture “War & Law: Iraq’s legacy, Chilcot’s Challenges” Professor Sands chose to look at the manoeuvres of Tony Blair’s government in their attempts to prove the legality of invading Iraq. Having given us a brief history of international law and war, he turned his attention on the former Attorney General Lord Goldsmith, and the to-ings and fro-ings of Goldsmith, Prime Minister Blair and others, as they sought to make a case that would satisfy Parliament and the country.
He cast his lawyer’s gaze on the Chilcot Inquiry – the make-up of the panel, the lack of lawyers on the panel (as opposed to the Dutch inquiry which found the invasion legal), the failure of the panel (with the exception of Sir Roderick Lyne) to ask searching questions of the witnesses, and its inability to follow a line of questioning, notably so during Goldsmith’s appearance, because it was unable to publicly refer to classified documents which it had studied and which contradicted the evidence being given to the panel by the witness.
But with a change of government in May, the Inquiry did publish documents relating to Goldsmith’s correspondence with Blair et al. They clearly show (contrary to Goldsmith’s evidence to Chilcot) that his considered opinion, all through 2002, repeated in his letter to Blair on 30 January 2003 and in a secret memo of 7 March that was not shared with Cabinet, was that the proposed invasion of Iraq was illegal. As Professor Sands pointed out, there were no new facts and no new legal arguments prior to Goldsmith’s answer to a Parliamentary question stating the invasion would be legal on 17 March that could have caused a change of opinion on his part – something he has since failed to explain.
“In my view,” said Sands, “the Chilcot inquiry has given us all we need on this dismal story: the evasive testimonies and the few but damning documents provide an incontrovertible account. The proceedings of the inquiry expose lamentable and dysfunctional decision-making processes that have brought Britain into international disrepute, even if the Inquiry’s mandate and its members’ lack of formal legal qualifications necessarily mean that it has no particular authority to express a view on the illegality of the war.”
So no matter how ineffective and toothless Chilcot’s report may prove to be, the public are better informed. We always knew but now, in spite of the obvious failings of the inquiry, we have the evidence. And we have been just as informed by the Baha Mousa Inquiry. That inquiry has produced witnesses’ testimonies detailing the abuse meted out to Iraqis that have been both astonishing and shaming.
Which brings us to the ‘Gibson’ inquiry. Sir Peter Gibson has one thing in his favour. He was an appeal court judge, so he has a legal background. But against that he is now the commissioner for the intelligence services, which is why Reprieve has demanded that he be removed and someone independent of the intelligence services takes his place. As it is, just how much evidence of the United Kingdom’s complicity in torture will this inquiry try to ignore?
When Cameron announced this inquiry it was in part to stem the growing number of civil claims by the victims of rendition and detention in Guantanamo. As such, the inquiry will only look at how complicit we (i.e. our security and intelligence officials) were in aiding the mistreatment of other people’s prisoners. There is evidence of that, and if Gibson follows Chilcot, more might trickle into view.
But there is also ample evidence of abuse – or to give the full definition: ‘torture or cruel, inhuman or degrading treatment’ – that the UK is directly responsible for. As I wrote in a previous article, witnesses at the Baha Mousa inquiry have produced a sorry tale of British armed forces being trained in interrogation techniques that have long been illegal; of men and officers believing it was ‘Standard Operating Procedure'; of the continued abuse of prisoners; of illegal practices being banned more than once, to no effect; of orders from London to continue the practices. And once, yet again, the practices were banned, new instruction manuals for military interrogators were provided, which not only encouraged, but demanded illegal acts of our officials and military.
It was these manuals that the previous government kept promising to make public but never did. When the current government published the revised manual in July, we still didn’t know what revisions they had had to make. Not until the guidance manuals were leaked in October, and we learned that military interrogators were instructed to use humiliation, insecurity, disorientation, exhaustion, anxiety and fear, threats, enforced nakedness, blindfolds and the rest. All of these training manuals were produced after Baha Mousa died, and one of them after an army inquiry into abuse in 2008. And all of these methods are not only illegal under international law, which cannot always be subject to prosecution in this country if the UK has not enacted those laws into domestic law but also, if Lord Parker’s 1972 judgment is to be believed, in our domestic law.
As described by Cameron, the Gibson’s inquiry will mostly be held in secret – “Let’s be frank, it is not possible to have a full public inquiry into something that is meant to be secret,’ he said. But if it also covers the abuse ordered by our own officials and committed by our own soldiers, there’s no problem. Much of the evidence is already in the public domain.
The inquiry will not take place until some ongoing cases for compensation are completed, which gives us some time to apply much needed pressure on the Government. Given what we have learnt from the process of the Chilcot Inquiry, what can we press for before the inquiry finally takes place?
- That, as well as looking at the UK’s role where support and participation in US rendition and interrogation of detainees is concerned, the inquiry must address the UK’s ‘domestic’ complicity in torture, as evidenced by the Baha Mousa Inquiry
- The evidence given in the Baha Mousa Inquiry should be examined
- The inquiry must not lose sight of the fact that none of these shameful acts could have taken place without a nod (or even direct authorisation) from government Ministers.
- Ministers as well as intelligence and military officials should give evidence, as has been demanded by Reprieve.
- The inquiry needs to be reminded that in 1972, when Lord Parker ruled that those techniques so freely used in Iraq were illegal under both the Geneva Conventions and domestic law, he also added: ‘no Army Directive and no Minister could lawfully or validly authorise the use of the procedures. Only Parliament can alter the law. The procedures were and are illegal.’ Parliament has never altered that law. Just as interrogators have acted illegally in using these procedures, Ministers have acted illegally in authorising them.
- The inquiry should be assisted by an independent legal counsel.
- Unlike the Chilcot Inquiry, this inquiry should be able to make a legal judgment.
- And it should have the power to refer ministers, officials and personnel to the police for investigation and, where appropriate, prosecution.
Nothing less will suffice if this country is to regain even a little of its reputation. Lawyers such as Professor Sands can help us understand the vast body of international and humanitarian law that should make war and all the horrors it produces a thing of the past. Our task is to make politicians abide by the laws they enact. We can start by pressing for the ‘complicity in torture’ inquiry to investigate all the facts, not just those the government can dodge.