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Sheryn Omeri considers the Chilcot Report and its implications for Blair and victims of war in Iraq

Sheryn Omeri considers the Chilcot Report and its implications for Blair and victims of war in Iraq

At 11am on 6 July 2016, the report of the 7-year-long Iraq Inquiry was released.

The Inquiry Committee, with Sir John Chilcot at its helm, had been appointed to consider two specific questions namely:

1. whether it was right and necessary to invade Iraq in March 2003;

2. whether the UK could and should have been better prepared for what followed.

In relation to the first question, the Inquiry found that the UK chose to join the invasion of Iraq before the peaceful options for disarmament had been exhausted and therefore that military action was not a last resort. In addition, the judgments of the UK government about the severity of the threat posed by Iraq’s weapons of mass destruction (WMD) were presented with a certainty that was not justified. There was no imminent threat from Saddam Hussein. Any suggestion to the contrary was based on flawed intelligence and assessment which were not challenged when they should have been.

The Inquiry found that after the September 11 attacks in New York, when US policy had begun to shift, it was Blair who suggested that the US and UK should “work on what he described as a ‘clever strategy’ for regime change in Iraq”. Then, on 28 July 2002, Blair wrote to President Bush assuring him that he (Blair) would be with him “whatever.” By this time, the Joint Intelligence Committee had concluded that Saddam Hussein could not be removed without force.

When, in March 2002, it became clear that there was no chance of securing majority support for a second UN resolution before the US took military action in Iraq, Lord Goldsmith advised that “a reasonable case” could be made that the existing resolution 1441 was sufficient. Less than a week later, Lord Goldsmith advised that there was, on balance, a secure legal basis for British military action without a further Security Council resolution. He asked Blair to confirm that Iraq had committed further material breaches as set out in resolution 1441. Blair did so the next day. However, the Inquiry found that the precise basis upon which Blair made that decision is not clear.

It also found that given the gravity of the decision, Lord Goldsmith should have been asked to provide written advice explaining how, in the absence of a majority in the Security Council, Blair could take that decision.

The Inquiry noted that more than 200 British citizens died as a result of the conflict in Iraq and many more were injured. The invasion its aftermath had, by July 2009, resulted in the deaths of at least 150,000 mostly civilian, Iraqis. More than 1 million Iraqis were displaced.

What the Inquiry did not do, was to express a view on whether military action was legal. It stated that that could only be resolved by a property constituted and internationally recognised Court.

Following release of the Chilcot report, a number of related legal questions have been left for the lawyers to consider, in particular:

1. What scope, if any, does the report create for the prosecution of Blair and members of his government for the decision to lead the UK into war in Iraq?

2. What scope, if any, does the report create for legal action aimed at compensating British and Iraqi victims of the war in Iraq?

Both of these questions will require detailed consideration once the 2.6 million words of the Inquiry’s report have been carefully read and digested. It is still early days in this regard. Nonetheless, even at this early stage, the following points appear to arise from the report.

Prosecution of Blair and members of his government by the International Criminal Court (ICC)

On 4 October 2001, the UK ratified the Rome Statute of the ICC which entered into force on 1 July 2002. It is over crimes committed after that date that the ICC has jurisdiction (Art. 11(1)), a time frame within which the war in Iraq clearly fits. Given that the UK is a party to the Rome Statute, it has necessarily accepted the jurisdiction of the Court with respect to the crime of genocide, crimes against humanity, war crimes and the crime of aggression (Art 12(1)) committed by any of its nationals (Art. 12(2)(b)).

The ICC may exercise its jurisdiction with respect to one of the four above-mentioned crimes if a situation in which one or more such crimes appears to have been committed is referred to the Prosecutor by a State Party to the Rome Statute, or by the Security Council acting under Chapter VII of the Charter of the United Nations or where the Prosecutor has initiated an investigation in respect of such a crime, including on the basis of information received from non-government organisations or other reliable sources.

The crime which appears the most relevant to any prosecution of Blair or members of his government is that of aggression which is set out in Article 8bis of the Rome Statute. The crime is the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the UN Charter. An act of aggression is defined as the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State.

The difficulty with a prosecution for the crime of aggression is that its inclusion in the Rome Statute took place on 11 July 2010, well after the invasion of Iraq. In addition, it has not yet come into force nor been ratified by the UK.

However, this does not necessarily mean that Blair or members of his government will avoid prosecution altogether. Other crimes may be relevant to the facts as found by the Iraq Inquiry. In particular, the war crime of:

“Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians…which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.” (Art 8(2)(b)(iv)).

Blair and the members of his government must have known that the invasion of Iraq, and any particular attack during the course of the invasion, would cause loss of life and injury to civilians. Rather than this, the success of a prosecution will likely turn on whether the loss of life or injury to civilians was excessive in relation to the concrete and direct overall military advantage anticipated, particularly in the case of specific attacks.

The latter is a compound and complex issue. Analysis must begin with consideration of what the anticipated military advantage was. The short answer is that the anticipated military advantage of the entire invasion was, for Blair, regime change. This must have also been the anticipated military advantage of each specific attack, or must have informed the same. Even if regime change were a permissible military advantage to seek and anticipate, the basis for it would also need to be considered. This was that Saddam Hussein possessed WMDs and therefore posed a threat. Yet, as the Iraq Inquiry has found, there was no evidence of new Iraqi violations of sanctions or reports from UN weapons inspectors that Iraq was failing to co-operate. The basis upon which Blair informed Lord Goldsmith that there had been breaches within the terms of resolution 1441 is not clear. This must mean that whatever military advantage that may have been subjectively “anticipated” by Blair was not “concrete” where “concrete” imports an objective dimension to the legal test in the same way as the term “reasonably” does in domestic legislation. In the absence of a concrete anticipated military advantage, any casualties must have been excessive.

On this basis alone, prosecution of Blair and other implicated members of his government does not seem as doomed as other commentators have suggested. Indeed, the Prosecutor of the ICC, who was already conducting a preliminary examination of the situation in Iraq during the war, has herself recently published a statement indicating that she has not excluded the possibility of a prosecution of Blair were the evidence (including the Chilcot report) to suggest that such were appropriate and the UK proved itself unable or unwilling to prosecute him itself.

Upon further consideration, other crimes set out in the Rome Statute may also be befitting of the facts as found by the Iraq Inquiry.

Compensating victims

It is entirely understandable why a great deal of focus has centred upon a possible prosecution of Blair. If found guilty of an international crime, he would certainly deserve to be imprisoned. However, apart from providing an important moral victory, this alone will not materially assist British and Iraqi victims of his decision-making. The obtaining of compensation by the families of those who died during the war may go some way to doing this. Compensation would be able to be obtained through the reparations procedure set out in Article 75 of the Rome Statute. This would however, depend upon the mounting of a prosecution in the first place (and its success).

An alternative means by which compensation could be secured would be through the bringing of personal injury claims in English courts for which there is recent precedent. In 2014, in Belhaj v Jack Straw and others [2015] 2 WLR 1105, a claim in negligence was brought by Mr. Belhaj and his pregnant wife in respect of unlawful rendition to and torture in Libya in which it was alleged that agents of the UK government had participated. The Court of Appeal held that the act of state doctrine would not necessarily prevent the English courts from investigating the conduct of foreign States and issues of public international law where there had been a violation of international law or a grave breach of fundamental human rights.

Similarly, in 2015 in Rahmatullah v Ministry of Defence [2016] 2 WLR 247, the Court of Appeal held that claims of Iraqi civilians for damages for unlawful arrest, detention and transfer to the custody of the US armed forces would only be barred by the act of state doctrine if at trial the Ministry of Defence established that there were compelling grounds of public policy to refuse to give effect to Iraqi law concerning unlawful arrest and detention.

In relation to the British citizens who were killed or injured as a result of the war in Iraq, claims may be brought for breach of Article 2 of the European Convention on Human Rights and/or in negligence. In Smith v Ministry of Defence [2014] AC 52, the Supreme Court held that while Article 2 is not violated simply by deploying soldiers as part of a military force abroad, the extent to which the positive duty to protect the soldiers’ right to life applies would vary according to context, and effect should be given to it where it is reasonable to expect an individual to be afforded protection.

In circumstances where the Iraq Inquiry has found that Lord Goldsmith did not explain how, in the absence of a majority in the Security Council, Blair could have made the decision that Iraq had breached the requirements of UN Security Council Resolution 1441 and that the basis on which Blair made such decision is unclear, it would seem that it would be reasonable for soldiers to have expected to have been afforded protection from the inherent risk of death which accompanies active combat by not being sent into such combat unless or until there was a legitimate basis for doing so. That they were so sent suggests a breach of duty.

In the case of Iraqi victims, the framing of claims against Blair and his ministers is more complicated since the principles derived from Al-Skeini v United Kingdom (2011) 53 EHRR 18 do not ‘bite’ until after invasion of Iraq (when the UK was jointly in control of Iraq), which of course occurred after the decision to do so (which is impugned by the Iraq Inquiry) had already been made.

Along similar lines to the Belhaj case, it may be possible to frame a duty as one not to expose the citizens of Iraq to injury or death arising once Blair had determined that regime change was necessary in Iraq and that he, together with President Bush, would be the architect of this change. Given that the Iraq Inquiry has found that at the time that military action was embarked upon it was not a last resort, there appears to be an arguable case for a breach of duty. Having got this far however, the next hurdle – that of causation - might pose difficulties in that no doubt Blair and his ministers would contend that Iraqi civilians would have met with the same fate had Blair not determined to join the US in invading Iraq, that is, the US would have done it anyway. However, such a defence would seem to hold less weight in the case of civilians who were killed or injured by British military activity. More nuanced arguments about the material contribution of Blair’s decision to invade Iraq together with the US may also be available in particular cases.

Sheryn Omeri is a barrister specialising in employment and discriminationhuman rights and public lawinternational criminal law and clinical negligence.

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