by Lesley Docksey
2010
Part I
August 23, 2010
from
GlobalResearch Website
Ex-Prime Minister and post-Downing Street millionaire
Tony Blair, to
celebrate the publication of his book A Journey, is holding a 'signing'
session at Waterstones, Piccadilly on 8 September.
That this man,
responsible for taking us into an illegal war, playing his part in the
ruination of an ancient country because he 'believed he was right', should
advertise himself in this way has caused outrage.
Time, I think, to look at
where we, and Blair, actually stand in terms of what we can and cannot do to
call him to account.
What hope for international law?
We have spent years constructing that body of treaties, statutes and
conventions known as international law only to ignore it when it is most
needed.
How often has any state or rather, how many powerful Western states
have been brought to account for breaching international law? And how many
exempt themselves from the laws while insisting others abide by them?
The world's record at upholding its own laws is poor. The United Nations
passes Resolutions where states have breached international law, demanding
compliance. It imposes sanctions, hoping to force compliance. But beyond
that what is done, except to threaten belligerence? What other routes are
available?
When the UN was set up, the International Court of Justice (ICJ) also came
into being. It can settle disputes between states and it can give advisory
opinions on legal matters when asked by recognized bodies or coalitions of
such. A good example of the latter is the opinion they delivered in 1996 for
the
World Court Project on the legality of the use of nuclear weapons. In
neither case does this really result in accountability.
Of the permanent Security Council members only the United Kingdom has made a
declaration accepting the jurisdiction of the Court. Nevertheless, they all
have judges sitting on the Court's bench, and one of them, Sir Christopher
Greenwood, aided the Attorney General Lord Goldsmith with his legal opinion
okaying the Iraq invasion in March 2003.
But, the United Nations Charter authorizes the Security Council to enforce the Court's
rulings. Security Council members can thus veto any judgment that
interferes with the political agendas of those states or their allies.
Political interests always seem to override the rule of law.
-
Why is it necessary to get someone like Tony Blair into court?
-
It is the only way to
demonstrate to those in power that no one is above international
law, and we cannot, regardless of what statements we issue or pieces
of paper we sign (or in America's case, 'unsign') simply decide we are exempt
in every case where it could be proved we are guilty.
To get just one of the
West's leaders into court and thereby create a legal precedent, will make
all the world's leaders sit up and take note.
Prosecuting Blair
In 1998, the Rome Statute of the International Criminal Court (ICC) was
adopted, opening the way to establishing the ICC.
When the Court was
proposed, its importance was such that 60 rather than the usual 30
ratifications were required. Considering that the
Convention on Cluster
Munitions took four years to reach 30 ratifications allowing it to pass into
law, support for the ICC was obviously keen in that the Rome Statute gained
twice the number of ratifications in the same amount of time.
Clearly, many
countries felt the need for such a Court, but of the Security Council's big
5, only the UK and France are fully signed up.
Following the illegal invasion of Iraq in 2003, many British campaigners
attempted to get Tony Blair into court. Encouraged by Chris Coverdale of
Legal Action Against War, (LAAW), we approached our county police forces and
asked them to act.
The reasoning behind this was that any British citizen,
believing that a crime has taken place, has the duty to inform the police
and ask them to investigate. In this case we used the
International Criminal
Court Act 2001, which Blair's own government had incorporated into British
domestic law.
In November 2003
Peacerights held a Legal Inquiry to examine aspects of the
invasion and occupation of Iraq, and their panel of international lawyers
then compiled a full report on the evidence from eye and expert witnesses,
together with their legal opinion that war crimes had been committed in
Iraq. This was presented to the Attorney General and the ICC, which was
unable to act.
The ICC cannot consider a prosecution unless it can be proved that efforts
to prosecute in the home country have failed. To do that one needs to
demonstrate why. And we didn't know why, only, unofficially, that the
Crown
Prosecution Service (CPS) had told the Metropolitan Police Force (the Met)
that no prosecution would be allowed. And by 'we', I do not mean just
campaigners.
The lawyers also did not know and could not find out - which is
where the Dorset Police came in.
In September 2003 I wrote a letter to Dorset 's Chief Constable, requesting
that Dorset Police investigate Mr Blair and members of his government for
war crimes with a view to prosecuting them under the ICC Act 2001.
Unlike
Chris Coverdale who, in the template letter he sent round to campaigners,
was accusing Blair of genocide, I decided to go for war crimes and crimes
against humanity, these being much easier to prove under the definitions of
the Act (cluster munitions and depleted uranium weapons cause
disproportionate harm to civilians, constituting war crimes).
Also, rather
than swamping Dorset Police with what I thought was evidence, I simply sent
them a copy of the relevant part of the Act, knowing full well that it would
have been unread by the majority of the British police.
I received a letter from the Chief Constable saying that the matter was
under consideration. That in itself was a major difference between Dorset
and other UK police forces.
The difficulty was that any complaint of illegal
behavior by members of the government comes under the jurisdiction of the
Met, so any requests to investigate with a view to prosecution go through
them to the CPS, the body that decides which public prosecutions go ahead.
All other police forces simply refused any such requests made of them.
It took weeks, plus letters and phone calls to the Met from the Chief
Inspector who was trying to further my request, before the Met informed him
that the CPS had refused permission for a prosecution some months back.
This
was in answer to LAAW's application, the CPS having instructed the Met at
the end of November 2003, but the Met not informing LAAW until sometime in
January 2004. My local force must have felt both insulted and angry at being
treated in such an offhand manner by the Met, and this may explain why I
ended up achieving more than I hoped.
In late March I finally met the Chief Inspector who had with him a copy of
the CPS letter, detailing why the prosecution was refused. Forbidden to show
me the letter, give me a copy or read it out to me, he managed in one short
meeting to give enough information about the CPS reasons for refusal to
allow us to prove we could not go further in this country (one reason being
that 'the ICC Act was not detailed enough to allow for prosecution').
I informed Professor Nick Grief, from Peacerights' Legal Inquiry panel,
Phil
Shiner (Public Interest Lawyers) took a witness statement from me, and that
joined the Peacerights report in The Hague . Where it sits, gathering dust.
Well, you didn't think it was going to be that easy, did you?
The ICC and the Crime of Aggression
The crime of aggression (then known as 'crimes against peace') was said at
Nuremburg to be the supreme international crime, and when the ICC was
brought into being, it was clear that many saw the crime of aggression as
integral to the crimes that would come under its jurisdiction.
So the most
pressing subject for discussion at the
Rome Statute Review Conference that
took place earlier this year was the defining of this crime and how a
prosecution would be brought at the Court (the so-called 'trigger'
mechanism).
One of the main blocks to progress is that the decision allowing a
prosecution to take place lies with the Security Council, placing it under
the control of politicians rather than judiciary. Former judge Richard
Goldstone, speaking on the BBC World Service, said one couldn't put the
crime of aggression into the hands of the ICC.
It would be very 'political'
to make judgments on the decision to go to war. But the ICC prosecution
would not be for the decision to go to war.
That decision is always
political.
Even in civil wars, the propaganda that drives neighbor to
attack neighbor is mostly politically driven. It is the act of waging war
that is the crime to be prosecuted, and the decision is only part of that
act. While the 'trigger' allowing a prosecution to take place remains under
the control of the Security Council it is impossible for any of the
permanent members of the Council to be prosecuted for a crime they show an
unhealthy willingness to commit. Indeed, three of them are able to control
an international body they do not support.
A letter I received from the Foreign Office states,
"A provision on aggression
that does not make reference to the Security Council would also be bad
for the Court. We want to avoid the ICC being politicized...
The Prosecutor needs to know
that, before he embarks on an investigation, he has behind him the
political support of the international community and that can only be
expressed through the Security Council."
That political support
would be more honestly and democratically expressed through the General
Assembly, where all nations can have their say. And the best way to avoid
the ICC being 'politicised' is to keep it well away from the Security
Council.
How successful was the Review Conference in resolving this conundrum?
Amendments have been incorporated which include both the definition of the
crime of aggression (identifying the decision and initiation processes,
preparations for war and the various actions that, as a whole or in part,
constitute a crime of aggression), and a set of conditions for the exercise
of jurisdiction by the court in relation to that crime.
The conditions make
no reference to the exclusive need of the Security Council for
predetermination before allowing the ICC to investigate and prosecute.
Instead, if after 6 months the Council has not acted, the Prosecutor can
seek a formal authority to investigate from 6 judges of the Court itself.
The amendments agreed at Kampala have to go through the same ratification
process as the original Statute, although only 30 states are required this
time, and this must be completed by January 1st 2017.
Everyone, including
the UK government says that this means nothing will happen until 2017 and,
according to the Foreign Office,
"ICC States parties now have a seven-year
period before making a further decision on the conditions under which the
Court will exercise its jurisdiction".
But look at it another way.
They have
seven years to obtain half the ratifications they originally achieved in
four. 110 countries have ratified the Statute, and a further 35 have signed
but not ratified. Even with behind-the-scenes arm twisting, surely 30 states
will step forward and clear the way for prosecuting the crime of aggression?
They must do it by January 2017 to get the crime of aggression onto the
books. But it is entirely possible they will fulfill that condition before
then.
However - read the Kampala resolution carefully and you will see that this
clause has been added to Article 15 of the Rome Statute:
"The Court may exercise
jurisdiction only with respect to crimes of aggression committed one
year after the ratification or acceptance of the amendments by thirty
States Parties."
So if and when the crime of aggression is incorporated into our domestic
law, we can forget about seeing Blair prosecuted for it.
But is this the only way to bring him to account?
Part 2
August 24, 2010
from
DissidentVoice Website
Regime Change
There are few legal justifications for waging war.
Where individual states are concerned, every
state has the right to self defense (Article
51, UN Charter), but one must prove an attack on one's territory
has taken place (a breach of the state's sovereignty) or that an attack is
genuinely imminent.
The only other legal military action is that
properly authorized by the Security Council, whether for peace-keeping,
intervention or to enforce international law.
People want to see Blair tried for war crimes, crimes against humanity and
the supreme crime, the crime of aggression.
But another crime was committed
when we invaded Iraq and, more importantly, which has now been confirmed by
papers released since the invasion and by evidence from the Iraq Inquiry.
The crime that Blair committed knowingly, deliberately and because, in his
own words "I believe I was right" is regime change.
There is no basis in international law for regime change. So found a Dutch
legal
inquiry into the Dutch government's
decision to back the invasion of Iraq. So, said Sir William Patey to
the Iraq Inquiry, senior British officials
advised when they looked at a proposal for regime change in Iraq in late
2001.
A Downing Street
memo in March 2002 says:
"A legal justification for
invasion would be needed. Subject to Law Officers advice, none currently
exists... regime change by military means... would require the
construction of a coalition and a legal justification... A full opinion
should be sought from the Law Officers if the above options are
developed further... Of itself, REGIME CHANGE has no basis in
international law."
It also, tellingly, has this to say:
"In the judgment of the JIC
there is no recent evidence of Iraq complicity with international
terrorism. There is therefore no justification for action against Iraq
based on action in self-defense (Article 51) to combat imminent threats
of terrorism…"
A
paper produced by the Cabinet Office in
July 2002, discussing the military aspects of invading Iraq, recognizes both
the US aim of regime change, and the need for lawful justification.
To quote:
"US views of international law vary from
that of the UK and the international community. Regime change per se is
not a proper basis for military action under international law".
And in her
evidence to the Iraq Inquiry, Elizabeth
Wilmshurst revealed that not a single legal adviser within the Foreign
Office believed the war to be legal. All the advice being given to Blair
from 2001 onwards was that invasion for the purpose of regime change was
unlawful.
And here lies the reason for the 'dodgy dossier', for Blair's insistence on
Saddam's weapons of mass destruction, the infamous '45 minutes', for the
legal opinion on an A4 sheet of paper and the 'real and present threat' he
convinced Parliament this country was facing from Iraq.
That the whole thing was an inflated tissue of
lies built on very doubtful intelligence did not matter to him. That he
stood up in the House of Commons and lied to Parliament did not matter,
although that in itself was a serious offence deserving of punishment.
What mattered was that it was necessary to prove
that Britain was under threat of imminent attack. Failing a UN resolution
authorizing force, only this would make his drive to war legitimate.
And he was committed to going to war. Bush and
his team cared little for legality, world opinion or that of their own
citizens. But Britain on the whole is a law-abiding country, and Parliament
would only back Blair if they could be convinced the invasion would be
legal.
Now that we have so much more testimony and paper evidence of Blair's
knowledge of the lack of evidence for WMD, for his dismissal of all the
legal advice he was being given on the issue of invading Iraq, for his early
commitment to regime change knowing full well it would be illegal, and for
the lies he repeatedly told the country and Parliament in his bid to
persuade us to back his eagerness for war, where do we start?
This breach of international law is considered
part of the crime of aggression 1 by
the ICC, but as we have seen, the invasion
of Iraq will not be covered, having taken place before the crime of
aggression becomes prosecutable. What should we prosecute him for, now that
we know we cannot pursue this route?
Regime change was considered illegal in international law, regardless of the
ICC, and the only other international option is the ICJ, which 'settles
disputes between states'.
The only state that could justifiably go to
the ICJ with this would be Iraq itself
(it's always a good idea to install a friendly government in the country you
have invaded and occupied. It avoids problems like this). Many hold that
Iraq's current government is illegal, and one could perhaps find enough
surviving members of the pre-invasion government (illegally overthrown) to
take a dispute to The Hague.
But one would still have to cope with the
Security Council's vetoes.
However, a recognized body could possibly initiate something by seeking an
advisory opinion/ruling on Blair vis á vis regime change - a route worth
exploring perhaps, but it would be a long and difficult route, with no real
result at the end.
Prosecuting Blair in
Britain
On the domestic front, and he is after all a British problem, could he be
prosecuted for committing our Armed Forces to effecting an illegal regime
change, or indeed any of the other illegal acts they committed during the
invasion and occupation of Iraq?
Yes, each serviceman or woman should be held
responsible for their individual acts, but Blair was at the head of the
chain of command, and carries the ultimate responsibility.
Could we seriously try for a private prosecution? What are our options? We
could still go for war crimes and crimes against humanity, as covered by the
ICC Act 2001.
John Pilger
suggests using the
Proceeds of Crime Act.
As Felicity Arbuthnot
demonstrates, Blair has accumulated millions out of the contacts
he made from his decision to invade Iraq. Another possibility, considering
his lies to Parliament, his manipulation of, and misrepresentation of, the
intelligence he was given, the financial deals he has set up and his fight
to keep those secret despite regulations, would be his
abuse of office.
A private prosecution would bypass the CPS, but may have to be done quickly
as one needs a universal jurisdiction arrest warrant.
To quote another government source:
The Government has, after careful
consideration, decided that it would be appropriate to require the
consent of the Director of Public Prosecutions before a universal
jurisdiction arrest warrant can be issued to a private prosecutor. A
suitable legislative amendment will be brought before Parliament at the
first opportunity.
They say they want to avoid people using this
action to make political statements or cause embarrassment, but they need to
be reminded that nothing should hinder any individual or group from seeking
justice.
Sheer expense will make people think carefully
before taking such an action, and there are many better ways to cause
embarrassment.
And as with seeking an advisory opinion from the
ICJ, it would be best to build a coalition of responsible and serious
British organizations and citizens, rather than relying on an individual or
a campaigning organization. A coalition would be far more likely to obtain a
universal jurisdiction arrest warrant, should we need the consent of the
Director of Public Prosecutions.
One could find however, that any private prosecution that gets to court
would face government QCs as well as the best lawyers Blair's money and
influence can buy. This takes serious money. Given the possibility of
getting Blair into a British or any other court, there would be a queue of
international lawyers offering their services for free.
But, and this is an essential 'but', funds must
be available to cover the costs of the other side should one lose. Put all
the peace campaigners and our cash-strapped organizations together, and we
would still not have the money to go up against Blair's millions. The only
answer to that is to engage the backing of some seriously rich people who
are committed to peace and law.
One thing I am sure of - if it were clear that somebody pursuing a private
prosecution did have the financial resources to cover the other side's
costs, then it would be very likely that the party (aka Blair) being
prosecuted would attempt, quite desperately, to settle out of court - which,
in the interests of law and creating a precedent, would have to be,
absolutely must, be refused.
And there is one further thing to consider - the small but constant drip of
courts, juries and judges upholding the law in the face of strong government
or corporate opposition.
Juries failed to agree, resulting in
-
the judge having to find the Fairford
Five not guilty for damaging USAF equipment at Fairford airbase
-
judges ruled on publishing previously
hidden documents, as in the Binyam Mohammed case
-
they ruled in favour of CAAT and the
Corner House over BAE Systems corruption and bribery
-
the European Court of Human Rights ruled
against the UK government following the 'McLibel' case
-
most recently, a judge found SmashEDO
activists in Brighton not guilty for 'decommissioning' EDO's factory
which supplies Israel
We have to remind ourselves that, although we
are fighting against 'the system', many people within that system feel as we
do, and are as committed to law and the truth as we are.
We have to keep going because sometimes the
system is on our side.
In 2003-4 people's anger over the illegality of the invasion ran hot. That
anger has not gone away. It has become a cold analytical anger that still
seeks justice, justice for the Iraqis and their ruined country; justice for
the dead and injured soldiers and their families; justice too, for the
damage done to our own country, our civil liberties and our so-called
democracy.
Until Blair is made fully accountable for his
actions we are not free from this shame.
That is why, in this morass of law and politics,
we must go on searching for a way that furthers, endorses and upholds both
international and domestic law, and we start by getting Tony Blair
into court.
Notes
1. "For the purpose of
paragraph 1, 'act of aggression' means the use of armed force by a State
against the sovereignty, territorial integrity or political independence
of another State, or in any other manner inconsistent with the Charter
of the United Nations."
Kampala resolution
