The Chilcot Inquiry : revelation or whitewash ?

Due to be released to the public in 2014, the report of the Chilcot Inquiry has finally been released today, the 6th of July 2016, more than seven years after the establishment of the committee.

Created on the 15th of June 2009 on the initiative of then British Prime Minister Gordon Brown, merely six weeks after the final patrol by the British combat troops in Basra (southern Iraq), the inquiry is the third of this kind. The 2.6 million-word report on the role of the United Kingdom in the Iraq war took longer to conclude than the war itself. Based on 130 sessions of oral evidence and the testimony of more than 150 witnesses, the long-awaited report is already controversial. Such scepticism comes from the precedent inquiries and their lack of proper revelations or damning incitements. The Chilcot Inquiry does have a broader mandate and greater powers to scrutinize both witnesses and documentary evidence than the previous ones but question marks surround its exact content.

There was no doubt that an inquiry into the Iraq war was necessary. Indeed, what was supposed to be a short, precisely-defined battle with the supposedly simple aim of securing regime change, turned out to be not only a catastrophic series of political misjudgements but also the cause of too many deaths. It quickly appears that Britain had been taken into the war on a false pretext and had fought it without properly thought out exit strategy. In these circumstances, the victims’ families, both British and Iraqi, deserve, first of all, an official apology. But this is not enough. Indeed, the respect of both the rule of law and of the basic principles of international law requires accountability. Further to this, families of the victims of such inconsiderate war must be entitled to a full compensation.  

The Hutton Inquiry[1] and the Butler Review[2], respectively set up in 2003 and 2004, investigated into the intelligence that led Prime Minister Tony Blair to tell the House of Commons that Iraq’s weapons of mass destruction programme was a genuine and present threat to British security. However, many observers believe that none of these two commissions got anywhere close to the bottom of how and why the case for war was built in such a manner.

The Chilcot Committee is pursued by a committee of Privy Counsellors, a formal body of advisers to the Sovereign of the United Kingdom. This way, the Committee is essentially composed by senior politicians, either former member of the House of Lords or of the House of Commons.

The mandate of the Chilcot Committee is twofold. The investigation first focuses on the decision-making process which led to the decision to go to war. The report critically analyses the evidence UK had at this time and how the British Government then decided to join the USA in the invasion and occupation of Iraq. The second part of the investigation deals with the role played by the United Kingdom during the subsequent military action on the ground and its aftermath. The Committee then examines the British armed forces’ conduct during and after the invasion. One of the main issues of the report, apart from the suspect use of intelligence to justify the invasion, is the way the inquiry has treated unpublished material. Indeed, among the more than 150 000 governmental documents and other related material, the inquiry had access to the confidential records of the conversations between Tony Blair and former US President Georges W. Bush in the leading up to the war.

The key points of the report :

Putting aside all considerations in regards to Saddam Hussain, the question at the basis of the redaction of the report was whether the invasion of Iraq back in 2003 was necessary or not.

Chairman Sir John Chilcot affirmed in his statement preceding the publication of the report that UK chose to invade Iraq together with the Coalition “before peaceful options for disarmament” had been exhausted. Military action was thus “not a last resort”.

The report explains how the formal decision to invade Iraq taken by the British cabinet was shaped by key choices taken over the 18 previous months. Whereas UK initially seemed to be willing to bring the issue before the United Nations, it failed to influence US policy in Iraq and later adopted a profoundly different position in these regards. From a certain point onwards, the UK fully supported US policies on the basis of flawed intelligence and assessments.

As matter of facts, the UK Intelligence found no evidence that Iraq had actual nuclear capabilities that at the time were to be considered threatening, and they were aware that a war may well have contributed to the transfer of eventual WMDs to terrorist groups. However, former Prime Minister Tony Blair, when presenting his arguments before the House of Commons, portrayed Iraq’s past, present and future as a genuine, dangerous and current threat to British citizens.

The report also identified severe shortcomings in terms of planning, assessing and executing both the military operations and the post-conflict management. Although the British executive was aware of the inadequacy of the US plans, the rushed decision did not allow the preparation of a strategy taking into full account the consequences of the invasion.

While the report does not assume a legal focus throughout, it notes that the circumstances in which it was decided that there was legal basis for UK military action were “far from satisfactory”. The UK and US in fact overruled the UN Security Council authority regarding the use of force.

In conclusion, whereas military action might have been necessary in the future, it is proved that this was not the case in March 2003.

A controversial inquiry :

According to Gordon Brown, the inquiry does not aim to apportion blame but to “get to the heart of what happened”. Moreover, the report was said not to “shy away” from making criticism where it was justified. However, the timing and the nature of the inquiry did generate quite a political controversy. The publication was delayed a first time until after the General Elections of May 2015 and then, five months later, in a letter to Prime Minister David Cameron, Sir John Chilcot announced that the report would be completed by April 2016.  

Beside the hectic publication schedule, the composition of the committee is also subjected to criticism from MPs from all the major parties. Indeed, a parliamentary debate underlined the absence of any member with first hand military expertise or with acknowledged inquisitorial skills. It is also worth noting that there is no elected representative on the committee. Moreover, the leader of the Liberal Democrats, Nick Clegg, accused the Government of “suffocating” the inquiry. Such critique came regarding the power given to government departments to veto sections of the final report.

Jeremy Corbyn, current leader of the Labour Party, who opposed the decision to go to war back in 2003, made it crystal clear since the beginning that he considered the Iraq war to be illegal. He claimed in his speech at the London School of Economics on the 17th of May 2016 that “[…] what I think we already know: there were no weapons of mass destruction, there was no ability to attack within 45 minutes and a deal had been done with Bush in advance”. Indeed, while Mr Blair has always denied that he agreed to support military action months before the vote in the Commons in March 2003, Corbyn publicly said that the Chilcot report would reveal the secret deal made by Tony Blair with George W. Bush to support the Iraq war. It is widely reported that the Labour Party leader is preparing to call for former Prime Minister to be investigated for war crimes. According to him, whoever has committed a war crime, should be charged for it.[3]

Corbyn did not change his position on the matter since and reiterated his condemnation of the decision to invade Iraq in 2003 and its devastating consequences, which, according to him, fuelled terrorism and war across the region. He further declared that it has led to a fundamental breakdown in trust in politics and in the British institutions of government.

The impeachment : an alternative form of punishment for Tony Blair ?

The likelihood of Blair being tried for war crimes in the wake of the Chilcot report appears to be slim. This way, senior figures from British Labour Party and Scottish National Party are considering taking legal action against former Prime Minister Tony Blair to ban him from office over his role in Iraq war. Former Scottish First Minister Alex Salmond declared that there “has to be a judicial or political reckoning” for Blair’s role in the Iraq conflict.

A number of MPs, led by Alex Salmond, are thus expected to use an ancient law to try to impeach the former PM. This law, last used in 1806 against Tory minister Lord Melville regarding the misappropriation of official funds, would be an alternative form of punishment ensuring that Tony Blair never holds office again. The triggering of the process is quite easy as it only requires an MP to propose a motion and provide supporting evidence. In the case where the impeachment attempt is approved by a simple majority of MPs, the defendant will be delivered to the Gentleman Usher of the Black Rod before his trial. However, MPs have clearly said that the attempt will be symbolic only and is unlikely to result in imprisonment.

Relatives of some of the 179 British soldiers killed during the Iraq war plan on boycotting the long-awaited report. Some of them fear the report will not give them the answers they desperately seek while some others expect it to be a whitewash.

The preliminary investigation before the ICC :

The ICC has started a preliminary examination of claims of torture and abuse by British soldiers after receiving a dossier from human rights lawyers acting on behalf of alleged Iraqi victims. This preliminary examination aims at determining whether there is reasonable basis to opening an investigation. Depending on the evidence found, could eventually lead to prosecution of individuals for war crimes. In a statement published on 4h July 2016, the prosecutor in charge said “the Office will consider the Chilcot report as part of its due diligence of assessing all relevant material that could provide further context to the allegation of war crimes by British troops in Iraq”.[4]

Although the ICC clarified that “the specific question of the legality of the decision to resort to the use of force in Iraq in 2003 – or elsewhere – does not fall within the legal mandate of the Court, and hence, is not within the scope of its preliminary examination”,[5] this does not rule out the prosecution of individuals accused of war crimes, crimes against humanity and genocide. The Prosecutor Office indeed confirmed in the aforementioned statement that once a decision is made to open an investigation in any given situation, the Office may investigate and prosecute any individual suspected of committing crimes within the Court's jurisdiction. This should therefore logically include former British Prime Minister Tony Blair.

The reason the Court has declined the possibility to rule on the legality of the use of force by the United Kingdom is because they have not yet activated the “crime of aggression”. While this crime can be found in the Rome Statute, the Court can currently not exercise jurisdiction over it because of an earlier lack of definition. However, in accordance with the Review Conference of the Rome Statute held in Kampala in the summer of 2010, State parties are to decide upon the activation of the offense on 1st January 2017.

Accountability and justice for Iraq : a long-deserved promise

March 20, 2003 was yet another dark milestone in the history of Iraq. In clear breach of article 2(4) of the United Nations Charter and violating several dispositions of the 1949 Geneva Conventions and its 1977 Protocols, the United States of America, together with the so-called “coalition of the willing”, started an illegal war in Iraq. The subsequent occupation led to deliberate, unnecessary and extreme forms of damage and destruction that have permanently devastated the nation and its people. As of today, the Iraqi people are still waiting, in vain, for reparation or even an official apology. But the invasion of Iraq in 2003 had also numerous far-reaching consequences worldwide. As Desmond Tutu said, the immorality of the US and Great Britain’s decision to invade, premised on the apparent lie that Iraq possessed weapons of mass destruction, has destabilized and polarized the world to a greater extent than any other conflict in history.[6]

The international community has since frequently condemned the invasion as a war of aggression but impunity remains granted to the perpetrators. This total absence of any accountability process clearly violates the set of principles for the protection and promotion of human rights as defined by the Commission of human rights. But this ongoing impunity also fuels anger and extremism throughout the region.

In this context, GICJ welcomes the Chilcot Report. By shedding light on the British involvement in Iraq between mid-2001 and July 2009, we hope that this inquiry will break the too-long silence kept around the crimes committed and, hopefully, will help to identify the main war criminals. The two previous committees established and their findings did not lead to any effective actions despite the urgency of the situation. In these circumstances, GICJ urges all parties not to let this report being another temporary news headline but to use it as the basis for a long-overdue legal prosecution into the crimes committed in Iraq.

The failure of doing so would seriously undermine the credibility of international law as it would showcase that western perpetrators can engage in a war of aggression in total impunity. This would legitimize a dangerous precedent that can possibly threaten the international peace and security.

GICJ wants to remind that the dramatic consequences of the unlawful invasion of Iraq are still visible and gravely affect the country as of today. The decision to go to war has, in fact, so far resulted in the killing of at least 2 million Iraqis and to the massive violation of the human rights of a large part of the civilian population. The coalition has introduced in the country enhanced practices of torture as interrogation techniques and such methods are now an integral part of the judicial process. Perhaps most notably, the torture scandal in Abu Ghraib illustrates perfectly the horrendous human rights violations perpetrated by the Coalition of the willing military armed forces.

The invasion and occupation also caused the destruction of the structures of the entire country, from the economy to the health services, including the education system. The total collapse of the Iraqi state at this time of the conflict and the establishment of a pro-invasion administration in the aftermath has put the foundations for the corrupted mockery of state we see today. It also totally impeded any proper political changes and allowed the creation of a fundamentally flawed judicial system. GICJ believes that accountability is crucial in order to prevent future atrocities and create a sustainable peace in Iraq and the surrounding area.

Recommendations  :

In line with the ICC Prosecutor’s stance that any investigation should be conducted “without fear or favour and irrespective of the official capacity of the perpetrator(s)”, GICJ calls on the Court to use the evidence gathered from the Chilcot report to effectively start a prosecution against the war criminals. This must include Tony Blair due to his major role in the decision to invade Iraq. Following the release of the report, Blair claimed that there had been “no falsification or improper use of Intelligence” and that he bears “full responsibility” for what happened. GICJ holds that it is appropriate for him to make his argument before an appropriate judicial body. Indeed, the information collected shows that he misrepresented the rationale for the military operation and misguided the House of Commons in the decision-making process of 2003.

Furthermore, in light of the devastating impact of the invasion and occupation against the state and people of Iraq, and in accordance with the amendments adopted by consensus during the 2010 Review Conference of the Rome Statute, GICJ urges the ICC and its State Parties to do everything in their power to activate the Court’s jurisdiction of the crime of aggression. Providing the ICC with jurisdiction to rule upon this offense has the potential to subvert impunity for future crimes that affect millions of civilian lives.

GICJ also believes that the UN, especially the Security Council, should take the right decision regarding the war of aggression against the state and people of Iraq which was a flagrant breach to the UN Charter and other rules of International Law. It should do anything in its mandate to bring the responsible of this horrendous crime to justice. It is within the mandate of the Security Council to either defer the situation to the ICC or establish an ad-hoc tribunal.

GICJ considers the war of aggression led against Iraq not only as an international crime but as a supreme international crime, and so should the United Nations and all its member states. The whole international community is under legal responsibility to live up to its commitment under the UN Charter and thus shall exert all its efforts in order to take appropriate action within the framework of the UN regarding this issue.

The various UN human rights mechanisms have a legal obligation to use their respective mandates to address all the violations that occurred in Iraq as a consequence of the war and occupation. As such, all mandate-holders need to take the required steps and decisions to bring the responsible parties to justice.   

GICJ finally recommends the civil society to keep pressuring the UN, the ICC and all responsible governments to not let this report become another list of unpunished wrongdoings.

[1] The Hutton Inquiry was a judicial inquiry established in 2003 in the UK. Chaired by Lord Hutton, it was appointed by the Labour government to investigate the circumstances surrounding the death of David Kelly, a biological warfare expert and former UN weapons inspector in Iraq.

[2] The Review of Intelligence on Weapons of Mass Destruction, widely known as the Butler Review, was announced on 3 February 2004 by the British Government and published its report on 4 July 2004. It examined the intelligence on Iraq's weapons of mass destruction which played a key part in the Government's decision to invade Iraq.





GICJ Newsletter