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, in ruling against the Claimant, General Al Rabbat, confirmed that there is to be no accountability. Those responsible are to remain unpunished.
This is a disheartening blow for those seeking justice. The State has spent in excess of £13 million pounds running the Iraq Inquiry, which established, over its 7 years of work, that there is plenty of blame to go around.
The circumstances of the invasion have been extensively scrutinized in John Chilcot’s report published in 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—crucially—war in Iraq was not necessary. Based on the Report’s findings, the conclusion that the UK and allied forces waged an aggressive war in Iraq is, in our opinion, indisputable.
The High Court concluded, however, that domestic prosecution is impossible. As established in an 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 did not engage with the evidence presented in the Chilcot report—rather, the claim failed because the British Government have failed to enact law that would make such a prosecution possible.
On behalf of the Claimant, it was argued that the crime of aggression should be considered as part of the domestic common law, having been incorporated from international law—at least since 1945 when the International Military Tribunal at Nuremburg commenced the prosecution of Nazi war criminals in the wake of World War II.
At the opening of the Nuremburg 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.
It is only since Nuremburg 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. Nations have accepted for centuries that the condemnation of waging aggressive war is a necessary safeguard against a lawless and aggressive world. And yet, even the International Criminal Court has 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 situation as it stands is that neither domestic nor international courts can bring those guilty of the most serious crimes to account. A law with no one to enforce it is no more use than a knife without a blade.
There should be condemnation in the strongest possible terms for the Government’s inaction. The British Government has afforded itself de facto domestic immunity by failing to enact legislation that would make the crime of aggression a domestic criminal offence.
It does not have to be this way—and in many Nations, it isn’t. Countries including Germany, Kosovo, Iraq and Serbia have enacted domestic legislation. Meanwhile, 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 a 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.
