The failure of the British government to prosecute crimes of aggression undermines the rule of law
Michael Mansfield & Antonia Benfield
The most senior judge in the UK 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 four 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 scrutinised in the report of Sir John Chilcot, published on 6 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.
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 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. Yet 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. 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 has, in addition, afforded itself 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 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.
– Michael Mansfield QC was called to the Bar in 1967 and over the last 50 years has been at the forefront of criminal law and inquiries, having represented defendants in some of the most controversial legal cases, particularly where issues of civil liberties have arisen. Mansfield has notably represented the family of Stephen Lawrence, the families of victims at the Bloody Sunday Inquiry, the family of Mark Duggan and the Hillsborough families.
– Antonia Benfield is a barrister practising in human rights, immigration and public law. Benfield exclusively represents clients against the British government and acts in high-profile challenges to government policy in particular as it relates to international protection claims. She has a particular interest in international law and inquires into the commission of war crimes including those in relation to the civil war in Sri Lanka.
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Stop the War Coalition.
Source: Middle East Eye
