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09 August 2010 By Peter Dyer
Though the U.S. political/media establishment remains
in denial, an international consensus is building that
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.
The growing global
consensus holds that not only was the invasion of Iraq
illegal but that accountability should follow, that –
at least in the future – such crimes should result in
direct and severe personal consequences for leaders
who plan for war and give the orders to start.
Two recent developments, in
London and in Kampala, Uganda, highlight this movement
away from impunity and toward personal responsibility
for aggression -- referred to in the judgment 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 Chilcot
inquiry, the official British examination of the Iraq
War, has produced powerful testimony from leading
ex-government figures that Operation Iraqi Freedom was
illegal and was known to be so at the time by many
senior officials.
Sir Michael Wood, chief
Legal Adviser to the UK 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, who resigned on the eve
of the invasion of Iraq, told the inquiry: “I regarded
the invasion of Iraq as illegal, and I therefore did
not feel able to continue in my post.”
Ms. Wilmshurst also
testified that her perspective was shared unanimously
among all the FCO Legal Advisers.
Testifying on July 20,
Baroness Eliza Manningham-Buller, the Director General
of MI-5 (Military Intelligence-5, the British Security
Service) from 2002 to 2007, further undermined the
“self-defense” justifications for invading Iraq, cited
by President George W. Bush and Prime Minister Tony
Blair.
Asked for her assessment of
the possibility that Iraqi leader 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, 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 her
reflections on the invasion, 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. … The 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 (UN Charter Article 41) unless a
country has been attacked or an attack is imminent
(Article 51).
The UN Security Council did
not authorize the March 2003 invasion of Iraq. Neither
the US nor the UK had been attacked by Iraq. Neither
was there anything remotely resembling an imminent
threat of Iraqi armed attack on the US or the UK
By the numbers the invasion
of Iraq was a monstrous crime, generating massive
trauma for the Iraqi people.
In the resulting conflict
somewhere between 100,000 and one million people lost
their lives. About four million people lost their
homes.
Yet, it remains highly
unlikely the men and women who brought about these
horrors will ever be arrested and tried. That’s mostly
because the superpower status of the United States and
the nature of internal U.S. politics make serious
accountability hard to envision, at least in the
foreseeable future.
The principle of “equal
justice under the law,” so fundamental to the American
way that the phrase is engraved on the front of the
U.S. Supreme Court Building, is cast aside when U.S.
authorities authorize the killing of foreigners in the
name of national security, even when the justification
is bogus.
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.
The ICC Charter,
established in 1998, gave the court jurisdiction over
genocide, crimes against humanity, war crimes and the
crime of aggression.
But 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's worth noting the Obama
administration’s modest concession to the
international rule of law. 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 UN Security
Council, for the finding of aggression.
Not surprisingly the
permanent members of the Security Council (the ones
with veto power: US, UK, France, Russia 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 [to
the Security Council] 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 U.S. , 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 U.S., with its strategic
partner of the night, Israel, will turn up for dinner.
They should be made welcome.”
Still, 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 someday, as Kennedy
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 toward the founding goal of the
United Nations: a world without war.
-- Peter Dyer is a
freelance journalist who moved from California to New
Zealand in 2004. He can be reached at p.dyer@inspire.net.nz.
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