The decision by the UK High Court to block a bid by a former chief of staff of the Iraqi army to bring a private prosecution against Tony Blair for his responsibility over the Iraq War is misguided. It means, essentially, that one of the architects of a war that almost destroyed a country will continue to enjoy immunity for this dreadful act.
General Abdul Wahed Shannan Al Rabbat accuses Mr. Blair of having committed a “crime of aggression” by orchestrating with President George W. Bush the invasion of Iraq in 2003 to overthrow Saddam Hussein. As is widely known, that invasion left hundreds of thousands of civilian victims, many of them children, destroyed the country’s infrastructure and public health system, and dangerously polluted the country’s environment.
The Iraqi General’s lawyers had requested permission to seek judicial review from the Supreme Court. They want that highest court to overturn a 2006 ruling by the House of Lords that established that there is no such crime as the crime of aggression under the law of England and Wales. The general’s lawyers wanted to prosecute also two key ministers at the time – Jack Straw, the Foreign Secretary, and Lord Goldsmith, the Attorney General.
Jeremy Wright QC, the current Attorney General, and his legal tem urged Lord Thomas and Mr. Justice Ouseley to stop the Iraqi general’s challenge, indicating that his case was unarguable because the crime of aggression is not recognized in English law. Although the two judges admitted that the crime of aggression had been recently incorporated into international law, they indicated that it did not apply retroactively.
Michael Mansfield QC, who represented General Al Rabbat, stated that the conclusions of the inquiry conducted by Sir John Chilcot in July 2016 justified the prosecution of Mr. Blair. That inquiry concluded that Saddam Hussein did not pose an urgent threat to the interests of the UK, that the peaceful alternatives to war had not been exhausted and therefore the war was not necessary.
In addition, Mr. Mansfield argued that the international crime of “war of aggression” had already been accepted by then UK Attorney General Sir Hartley Shawcross QC during the Nuremberg trials in the 1940s. During the trials, Britain was one of the parties that prosecuted the German criminals for launching precisely an “aggressive war”. As the British politician George Galloway stated in this regard, “From that moment onwards the de jure inadmissibility of such wars was established axiomatically in the British legal system.”
After World War II, the prohibition on the use of force by states was established in article 2 (4) of the Charter of the United Nations, which prohibits the threat or use of force against the territorial integrity or political independence of any state. Aggression was first recognized as an international crime resulting in individual criminal liability under international law in the Charter of the International Military Tribunal at Nuremberg (IMT).
Article 6 (a) gave the IMT jurisdiction over crimes of peace, “namely, planning, preparation, initiation or waging of a war of aggression, or war in violation of international treaties, agreements or assurances, or preparation in a common plan or conspiracy for the accomplishment of any of the foregoing.” The same words are present in article 5 (a) of The International Military Tribunal for the Far East Charter (IMTFE Charter) also known as the Tokyo Charter.
These are strong precedents for Mr. Mansfield’s assertion that the offence of waging an aggressive war had effectively been assimilated into English law. Mr. Mansfield’s position led Thomas and Ouseley to concede, “We see the force of Mr. Mansfield’s contention that if there s a crime of aggression under international law, there should be a means of prosecuting it as otherwise the rule of law is undermined.”
They also indicate the “significant practical difficulties” of carrying out the prosecution and conclude that, within the UK, the clear principle is that “it is for parliament and parliament alone” to decide whether there should be a crime of aggression in domestic law.
It is clear that grave violation of international law and humanitarian principles have been committed by waging war against Iraq. And it is also clear that the UK High Court’s decision not to allow the demand to proceed is wrong. To leave those responsible for a devastating war unpunished is a travesty of the law and, in itself, a crime against the citizens of a country that has suffered so much.