Michael Mansfield QC and Antonia Benfield write:
The High Court has brought to an end the hope of prosecuting Tony Blair, Jack Straw and Peter Goldsmith for the crime of aggression in invading Iraq in 2003. The invasion and subsequent occupation resulted in the deaths of hundreds of thousands of Iraqi civilians, the displacement of over 4 million others, and has left the country and region in a state of chronic instability. Yet the High Court has confirmed that there is to be no accountability. Those responsible are to remain unpunished.
The circumstances of the invasion have been extensively scrutinized in the report of Sir John Chilcot, published on the 6th July 2016. The Report concluded that Saddam Hussein did not pose an urgent threat to the interests of the United Kingdom, that intelligence regarding weapons of mass destruction was presented with unwarranted certainty, that peaceful alternatives to war had not been exhausted and that war in Iraq was not necessary. On the Report’s findings, the conclusion that the UK and allied forces waged an aggressive war in Iraq is indisputable.
The High Court concluded however, that domestic prosecution is impossible. As established in the earlier House of Lords decision in Jones, the High Court confirmed the crime of aggression is not a crime in domestic law, and as such, no prosecution can be brought in domestic courts. The High Court however did see force in the submission thatwhere the crime of aggression exists in international law but there is no means of prosecution, that the rule of law is undermined.
On behalf of the Claimant, a General of the Iraqi Army, it was argued that the crime of aggression should be considered as part of the domestic common law, having been incorporated at least since 1945 when the International Military Tribunal at Nuremberg commenced the prosecution of Nazi war criminals in the wake of World War II.
At the opening of the Nuremberg Trials, the British Attorney General, Sir Hartley Shawcross QC, led the British prosecution and condemned the waging of aggressive war in the strongest terms, as the supreme international crime. Shawcross said that to allow individuals to escape punishment for such crimes made an absurdity of the law. Yet since Nuremberg there has been a shameful slide from the moral and legal high ground the UK then occupied.
It is widely accepted that the crime of aggression is a crime in international law. The International Criminal Court has however been unable to exercise jurisdiction over the crime, and international law is at present unable to bring the guilty to account. Despite giving verbal commitment to the International Criminal Court’s jurisdiction over the crime of aggression, the British Government has failed to ratify the statutory amendments to make it a possibility, significantly undermining its pretence of support.
The British Government have, in addition, afforded themselves de facto domestic immunity by failing to enact legislation, that would make the crime of aggression a domestic criminal offence. Many countries including Germany, Kosovo, Iraq and Serbia have enacted domestic legislation, while the British Government has manifestly failed to ensure that those guilty of bringing devastation to nations through aggressive war can be brought to trial.
On the national and international stage the failure of the British Government to give tangible commitment to the prosecution of the crime of aggression undermines the rule of law. It sets dangerous precedent in times of global insecurity and sets an example to the rest of the world that states can wage aggressive war with impunity. The devastation that has been caused to millions of Iraqi civilians leaves the world with only one lesson - how to commit the most serious of crimes, and get away with it.