by Geoffrey Bindman QC
The Chilcot report, when published next month, will surely criticise some of those responsible for launching the Iraq war on 20 March 2003 and for the suffering and damage which it caused. Lawyers are certainly already mulling over the prospect of litigation, criminal as well as civil.
If Chilcot supports the view that the invasion violated the UN Charter, what are the consequences? There has been speculation about the prospect of a prosecution in the International Criminal Court (ICC). That would require an investigation by the court and a willingness to embark on the prosecution of an individual or individuals accused of specific offences within its jurisdiction. However, it has sometimes been overlooked that the ICC is a court of last resort. By s 51 of the International Criminal Court Act 2001 (ICCA 2001) the UK has made genocide, crimes against humanity and war crimes as defined by the ICC treaty criminal offences against UK law triable in UK courts where such offences are committed by UK nationals or residents. Proceedings can, however, be brought only with the consent of the Attorney-General.
The ICC treaty does not allow immunity to states or heads of state but prosecution of an individual does require proof of personal responsibility for the crimes committed. The issue of “command responsibility “ has been a key element of the defence of those prominent defendants (such as Milosevic and Karadzic) who have already been tried in the ICC and in the international tribunals dealing with human rights violations in Rwanda and in the former Yugoslavia. However, s 66 of ICCA 2001 has tried to shut off an easy escape of the most senior leaders from criminal responsibility by declaring (with some qualifications) that military commanders or other superiors are to be held responsible for offences committed by their subordinates.
Of course the proviso requiring the Attorney-General’s consent could mean that there will be no prosecutions whatever the legal merits. A precedent in the US is not encouraging. In December 2014 an authoritative report from the US Senate chaired by Senator Dianne Feinstein found compelling evidence of illegal tortures carried out on the instructions and authority of government officials, including some at the very highest level. No prosecutions have taken place and a report which was headline news when it was published has apparently been forgotten. Does the same fate await Chilcot?
Sir Geoffrey Bindman QC, consultant, Bindmans LLP
A full version of this article is published on New Law Journal.