A 'Stop the War' demonstrator calls for Tony Blair to be prosecuted for war crimes. Photo: lewishamdreamer. Flickr. CCEditor's note: This is the second of two articles in which Geoffrey Bindman investigates the possibilities and pitfalls of launching such a case against former UK Prime Minister Tony Blair for his involvement in the Iraq War.

Now that the Chilcot report has been published, do we know more than we already knew from previously published accounts of the Iraq war, its preparation and its aftermath? Does it throw any new light on the prospect of legal sanctions against those whom it has criticised? The answer to both of these questions is 'not much'. Nonetheless, there is enough information to map out the main avenues of that those seeking legal redress could pursue.

Chilcot has not addressed directly the fundamental question: was the war illegal? This is understandable, as the Chilcot team included no lawyer. On 7 March 2003, Lord Goldsmith, then Attorney-General, declared in the House of Lords that the United Kingdom would be acting lawfully if it attacked Iraq. The legal requirements for a legitimate attack can be simply stated. The UN Charter prohibits the use of force except in two circumstances. The first is self-defence – not applicable in this case. The second is where force is authorised by the Security Council.

Is Blair...criminally or civilly liable for the consequences of his decision to launch the attack?

Lord Goldsmith’s argument was that the authority to use force given by the Security Council 12 years earlier during the first Gulf war, and which was followed by a ceasefire a few months later, could still be relied upon. (I investigated this claim in depth in a previous article). Yet in late 2002, the Government had given an assurance to the UN Security Council – through its representative Sir Jeremy Greenstock – that no force would be used without its further authority. Chilcot points out that by going to war in breach of this promise, Tony Blair undermined the authority of the Security Council. Without their authorisation, the attack was unlawful. The weight of expert opinion strongly asserts that there was no continuing or revived Security Council authority and that therefore the attack violated international law.

Is Blair therefore criminally or civilly liable for the consequences of his decision to launch the attack, for which he has honourably accepted full personal responsibility?

The obvious avenue to examine first is the International Criminal Court, which is already reported to be carrying out a preliminary investigation. The Court has jurisdiction over four categories of crime: genocide, crimes against humanity, war crimes, and the crime of aggression. Genocide is an unlikely candidate. Nor is it feasible that he can be prosecuted for a crime of aggression. It was defined in 2010 as “the planning, preparation, initiation or execution by a person in a position effectively to exercise control over or 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 Charter of the United Nations”. Though it fits the situation perfectly – and should be a powerful deterrent to any similar adventures in the future – the offence will not become justiciable under the ICC treaty until at least 2017. It will never apply to the Iraq war because it will not be applied retrospectively. 

When an attack is illegal, does that mean that every ensuing violent act by every British soldier is a crime...?

Crimes against humanity include a long list of all the most serious crimes of violence, but the ICC only has jurisdiction when such crimes are committed “as part of a widespread or systematic attack directed against any civilian population, with knowledge of that attack.” Of course, hundreds of thousands of civilians perished at the hands of British and American forces. But can it be said that they were subjected to 'widespread and systematic attack'? A defendant would claim that the death of civilians was unintended 'collateral damage'.

War crimes are defined as acts that constitute grave breaches of the Geneva Conventions, or otherwise amount to serious violations of the laws and customs applicable in international conflict. It is, again, a long list. It would be necessary to establish specific violations by British forces for which Blair could be held responsible.

Naturally, crimes against humanity and war crimes are not excused by Security Council authority or self-defence. They are crimes which can have no justification. But when an attack is illegal, does that mean that every ensuing violent act by every British soldier is a crime, if committed under its auspices? Clearly this was a concern of Admiral Boyce, Chief of the Defence Staff in early 2003, when he sought reassurance that he was not being asked to send his troops to commit war crimes. He was given that reassurance by Lord Goldsmith. Even if Goldsmith was wrong, the Admiral’s good faith and the fact that he acted on legal advice might provide him and his subordinates with a defence. Blair too has stressed his good faith and good intentions. But were we not taught that 'ignorance of the law is no excuse'?

Could Blair or senior officers be held personally liable to pay damages to those injured or bereaved?

In my earlier article, I drew attention to the parallel jurisdiction conferred by the International Criminal Court Act 2001 on UK courts over the same crimes as the ICC itself adjudicates. Prosecutions would therefore require the consent of Lord Goldsmith’s current successor as Attorney-General. There are difficult decisions ahead of him. These are deep waters, both politically and legally. More detailed work is needed before the merits of a prosecution under the provisions outlined above can be finally determined.

Other avenues are possible. Some MPs are said to be seeking the condemnation of Mr. Blair for 'contempt of Parliament'. Another possible Parliamentary route is impeachment, though my own view is that it would be a fruitless exercise. Lord Macdonald QC, former Director of Public Prosecutions, has given the Times newspaper reasons for believing that Mr. Blair’s conduct in the build-up to the war could amount to the criminal offence of 'misconduct in a public office'. One example is Mr. Blair’s failure to disclose to Cabinet ministers the Attorney-General’s detailed legal advice recommending a further Security Council resolution before launching an attack.

There have already been many civil claims filed by Iraqi citizens against the Ministry of Defence, based on the behaviour of British troops. Could Blair or senior officers be held personally liable to pay damages to those injured or bereaved? Misconduct or misfeasance in public office is a civil wrong as well as a crime. Blair has no immunity conferred by his position as Prime Minister against proceedings in the ICC or under the UK statute, but state immunity or head of state immunity may be claimed as a defence in other situations. This is another subject for further study. The legal situation remains unclear, but as public calls for Blair's prosecution rumble on, the pressure is mounting to find some means of holding the former prime minister accountable in a formal court – not just the court of public opinion.