The Chilcot Inquiry, Aggression and the ICC

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George W. Bush addresses the nation from the Oval Office at the White House Wednesday evening, March 19, 2003, announcing the beginning of Operation Iraqi Freedom.
(Image: White House photo, Paul Morse.)

The 2003 U.S. led invasion of Iraq was a crime--a profound and catastrophic violation of international law.

The crime was aggression: the waging of unprovoked war on a sovereign state.

A growing international consensus says that not only was the invasion illegal, but in the future such crimes will result in direct and severe personal consequences for leaders who organize the killing and give the orders to start.

Two recent developments, in London and in Kampala, Uganda, highlight this movement away from impunity and towards personal responsibility for aggression--referred to in the judgement of the first Nuremberg trial in 1946 as “…the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”

In London, the British inquiry into the Iraq war--the Chilcot inquiry--has produced powerful testimony from leading ex-government figures that Operation Iraqi Freedom was illegal.

Sir Michael Wood, chief Legal Adviser to the U.K. Foreign and Commonwealth Office (FCO), the British equivalent of the U.S. State Department, told the Chilcot Inquiry in January: “I considered that the use of force against Iraq in March 2003 was contrary to international law. In my opinion, that use of force had not been authorized by the Security Council, and had no other legal basis in international law.”

The FCO Deputy Legal Adviser, Elizabeth Wilmshurst, resigned on the eve of the invasion of Iraq. “I regarded the invasion of Iraq as illegal, and I therefore did not feel able to continue in my post,” she told the inquiry. Ms. Wilmshurst also testified that her perspective was shared unanimously among all the FCO Legal Advisers.

More recently, on July 20, Baroness Eliza Manningham-Buller, the Director General from 2002 to 2007 of MI-5 (Military Intelligence-5, the British Security Service) testified. Asked for her assessment of the possibility that Saddam Hussein would have threatened western interests by combining weapons of mass destruction with international terrorism, she answered: “It is a hypothetical theory. It certainly wasn't of concern in either the short term or the medium term to my colleagues and myself.”

When asked if she gave any credence to assessments that Saddam Hussein provided support for Al-Qaeda and might have been involved in 9/11, Ms Manningham-Buller said: “No. …there was no credible intelligence to suggest that connection and that was the judgment, I might say, of the CIA. It was not a judgment that found favour with some parts of the American machine, …which is why Donald Rumsfeld started an intelligence unit in the Pentagon to seek an alternative judgment.”

When asked for reflections on the war, she said: “The main one would seem to me to be the danger of over-reliance on fragmentary intelligence in deciding whether or not to go to war. If you are going to go to war, you need a pretty high threshold…[T]he intelligence was not substantial enough upon which to make that decision.”

Only the United Nations Security Council can legally use or authorize armed force across borders (U.N. Charter Article 41) unless a country has been attacked or an attack is imminent (Article 51).

The U.N. Security Council did not authorize the March 2003 invasion of Iraq. Neither the U.S. nor the U.K. had been attacked by Iraq. Neither was there anything remotely resembling an imminent threat of Iraqi armed attack on the U.S. or the U.K.

By the numbers the invasion was a monstrous crime, generating massive trauma.

In the resulting conflict somewhere between 100,000 and 1,000,000 people lost their lives. About 4,000,000 people lost their homes.

It is unlikely the men and women who brought about these horrors will ever be arrested and tried.

The vision of “equal justice under the law,” so fundamental to the American way that the phrase is engraved on the front of the United States Supreme Court Building, appears to stop at the border.

Outside the U.S., though, momentum is building for equal justice under international criminal law.

This perspective was dramatically affirmed recently at the International Criminal Court Review Conference in Kampala, Uganda. On June 11, the ICC reached agreement to amend the ICC Charter, subject to a vote in 2017, to include a definition of the crime of aggression.

Although the ICC Charter, established in 1998, gave the court jurisdiction over genocide, crimes against humanity, war crimes and the crime of aggression, finding an agreement on the definition of aggression and the conditions of jurisdiction proved so difficult that the delegates finally agreed that the ICC could not actually assume jurisdiction until (Article 5 Section 2) “…a provision is adopted…defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime.”

In 2002, shortly after the ICC Charter entered into force, the States Parties (countries which have ratified or acceded to the Rome Statute, the founding document of the ICC) established a special working group on the crime of aggression.

In Kampala, almost eight years later, 84 of the 111 ICC States Parties reached agreement on a definition as well as on jurisdiction.

Also participating in the discussions were 30 “observer nations:” countries such as the United States, Russia and China which are not yet States Parties and thus could not vote but which still exerted influence.

It is worth noting that, though the United States remains outside the ICC, the presence of an American delegation at the review conference is a repudiation of the Bush administration, which not only refused to engage the ICC but actively worked against it.

(The Bush administration, by threatening reductions in aid, pressured over 100 countries to sign “Bilateral Immunity Agreements” whose purpose was to ensure that these countries would not transfer U.S. nationals to the jurisdiction of the ICC.)

The Kampala agreement on aggression was based on a series of compromises, a major portion of which had to do with sorting jurisdiction, between the ICC and the U.N. Security Council, for the finding of aggression.

Not surprisingly the permanent members of the Security Council (the ones with veto power: U.S., U.K., France, Russian and China) were reluctant to share the power to determine aggression conferred by United Nations Charter (Article 39). The Draft Resolution compromise provided that under certain conditions the ICC could exercise jurisdiction over aggression by States Parties, but the Security Council would have ultimate veto power.

Dr Kennedy Graham, a New Zealand Member of Parliament who went to Kampala as an observer with Parliamentarians for Global Action, made some comments reflecting the mixed reaction at the conference to the United States agenda: “At present, the US is ‘prepared to constructively engage’ without joining. Of course it is…. (It) is quite prepared to refer any issue of crimes in bello (during war), since it can veto any of its own.

What it is not prepared to do is cede any competence to the Court to determine aggression (crimes ad bellum). … So, more of the same from the US, right now. But the time will come. They cannot hold out forever. When the rest of the world has moved, the leader of the free world will come inside the tent. When peace and justice truly merge on the negotiating table, the US, with its strategic partner of the night Israel, will turn up for dinner. They should be made welcome.

Despite the compromises, the Kampala agreement was remarkable. The major hurdles to including aggression as a crime that can be prosecuted in the International Criminal Court have been overcome. The days when national leaders can wage war with impunity may be slowly coming to an end.

Perhaps somedays, as Dr Graham envisions, all countries will come inside the tent. If and when that happens even the leaders of the world's most powerful countries, when contemplating slaughter of the citizens of another country for political gain, will want to pause to consider the prospect of arrest, trial and imprisonment.

Humanity will then have taken a giant step towards the founding goal of the United Nations: a world without war.

Peter Dyer is a freelance journalist who moved with his wife from California to New Zealand in 2004. He can be reached at p.dyer@inspire.net.nz .

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