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By Dr. Roslyn Fuller
From RT

Several years ago, a British television channel ran a film entitled The Trial of Tony Blair.

Not only was it pretty funny, with the former British prime minister freely sharing with all and sundry the innumerable times he ‘felt the hand of destiny’ on his shoulder, but the film’s main premise of a Tony Blair about to get shipped off to The Hague to face trial over the Second Iraq War was deeply satisfying on an emotional level.

At the time, it seemed like a piece of wishful thinking with solid production values, but recent news from the International Criminal Court gives reason to believe that Tony Blair isn’t out of the woods yet.

Allegations that British troops abused and tortured detainees during the Second Iraq War have surfaced time and again over the past decade, in no small part due to the work of Public Interests Lawyers (PIL) in Birmingham and the Berlin-based European Center for Constitutional and Human Rights (ECCHR).

The ever-increasing evidence accumulated by these two organizations and others like them has understandably led to some consternation about how the British armed forces acquitted themselves in Iraq. Unfortunately, all this concern has so far been dealt with ‘the British way’, which means a spate of drawn out, expensive public inquiries where everyone in general and no one in particular gets blamed for whatever happened.

In serious cases, the politician of the day (nearly invariably a different one than the one responsible for the events under inspection) “regrets” the actions of his predecessor, just as someday his successor will inevitably “regret” whatever shady behavior he himself is currently up to. Apparently, this manner of settling highly controversial points of public policy somehow does the trick for British people.

The al-Sweady and Baha Mousa Inquiries

Two of the most important inquiries in relation to British actions Iraq are the al-Sweady Inquiry and the Baha Mousa Inquiry.

The al-Sweady Inquiry focuses on the incidents surrounding the Battle of Danny Boy, a firefight that erupted at a British checkpoint in Iraq in 2004. An initial allegation that a score of Iraqis who were taken prisoner after the battle were summarily executed has been withdrawn, but investigations continue into allegations that detainees were abused.

The Baha Mousa Inquiry investigated the death of an Iraqi hotel receptionist (this would be Mr. Baha Mousa) in British custody in 2003. Mousa, a widower with two small children, was beaten so severely while in British custody that he suffered 93 separate injuries prior to his death. While the al-Sweady Inquiry meanders on, the Baha Mousa Inquiry resulted in only one conviction, that of the only soldier who had the, for lack of a better term, belated decency to confess. In fact, the judge claimed that it was impossible to secure further convictions, because the soldiers involved covered for each other.

So while the Baha Mousa Inquiry resulted in no fewer than 73 recommendations for future practice (some of which were immediately rejected by the British government), only one person served time in jail, just one year, for the murder of an innocent man. While yet another body, the Iraq Historic Allegations Team, is re-warming the Baha Mousa case and many others, its progress has been slow. Glacially slow.

This disappointing impunity on the ground is surpassed only by the level of impunity in the upper echelons of politics, where so far no one at all has been called to account for waging a war in Iraq on false pretenses and then killing and mistreating a significant proportion of the local population. Could ICC involvement change this?

International Criminal Court investigates

Let’s say that the decision to re-open the examination of British action in Iraq has been an unexpected and, for once, pleasant surprise.

However, everything should be taken with a grain of salt, and all that has so far happened is that the ICC’s prosecutor, Fatou Bensouda, has agreed that the evidence merits re-opening the preliminary examination. She has not requested a formal investigation, and the entire process is nowhere near the point where charges are laid or warrants issued.

Furthermore, most readers will be disappointed to hear that the examination relates to war crimes only. Under international law, there is a separation between the act of going to war and how you behave when you are actually in a war. As far as going to war is concerned, a country is not allowed to commit an act of aggression, which basically means attacking someone else, like Iraq did to Kuwait back in 1990. As far as what you can do in a war is concerned, there’s a long list of forbidden actions, but the biggest ones are prohibitions on looting, torturing, raping and killing the locals. If it sends a chill down your spine to contemplate something, it’s probably on the war crimes list.

Now when the States Parties sat down to draft the Rome Statute (this is the core document of the International Criminal Court which lays out all the rules) they managed to agree on what the war crimes were and even to write them all down in the statute. Admittedly, they did so in a manner so confusing as to keep law students up at night, but at least it’s something to work with.

What the States Parties somehow could not agree on was what constituted an act of aggression, and the reason they could not agree on this was because Britain and the United States refused to agree on it. Why anyone was listening to what the United States thought about a document it was unlikely to ratify in the same century it signed it is a mystery unto itself, but needless to say, “country A takes its army and invades country B” is generally considered a pretty good starting point on what constitutes an act of aggression. There are always a few tricky details, but in the main, it isn’t rocket science.

So while the States Parties agreed that aggression was a crime under international law, since it defied definition no one could be tried for it (this was kind of rectified by the Kampala Declaration of 2010, but not enough to make a difference for our purposes here). And this is why when we deal with the Second Iraq War, instead of going straight for the jugular and trying Bush, Blair et al for invading Iraq, which would be a pretty open-and-shut case, we muddle around with the more convoluted and difficult-to-prove war crimes. So what re-opening this investigation means for the crime of aggression is absolutely nothing in the short- to mid-term and it is why this examination will be more complicated than one would be inclined to think on the face of it.

However, even just taking the war crimes angle, this move is still potentially very far-reaching, because when the ICC puts people on trial it likes to go straight to the top. Of course, it is also important to try those who actually committed the crimes in question, but who organized their actions? Who tolerated them? Who encouraged them? Who provided the environment that allowed them to be perpetrated in the first place? This is really what the international dimension of criminal law is all about.

Purely statistically, there are always going to be some crimes committed in the course of any conflict, but if military justice is parceled out, everything is going as well as it can. There would be nothing to be done on an international level that wasn’t already happening on a national level. These thoughts are institutionalized in the international legal framework that determines when the ICC has jurisdiction (i.e. its right to put someone on trial).

According to Article 8 of the Rome Statute, the ICC can only exercise jurisdiction over war crimes when these are committed “as part of a plan or policy or as part of a large-scale commission of such crimes.” In other words, if one soldier tortures one Iraqi, this is a problem for national Iraqi law or British military law. We saw a similar situation in Afghanistan with Marine A of “shuffle off this mortal coil, you c***” fame. One cold-blooded killing of a POW, one trial, rock hard evidence, conviction, case settled.

But if 500 British soldiers torture 500 Iraqis, this is starting to look pretty wide-scale and suspiciously like there is some kind of policy behind this behavior. And then the question: “Whose policy?” arises pretty naturally.

Policy of torture?

Evidence that acts of torture were at least tolerated at the highest levels of government is mounting. Most of it relates more directly to the United States, where the so-called Torture Memos encouraged the more creative forms of abuse like waterboarding, sleep deprivation and forcing detainees to maintain stress positions. (“How bad can staying in one position hurt?” you may ask. I worked as an artists’ model all through university; take my word for it, not moving hurts a lot.) An American Senate Committee eventually concluded that Donald Rumsfeld (then-secretary for defense, who denies that he ever read the Torture Memos) had created an atmosphere in which soldiers were encouraged to act in overly aggressive and abusive ways to detainees.

That the British, acting in close cooperation with US forces in Iraq, may have operated under similar conditions isn’t all that far-fetched, especially since we know that British agents cooperated in the related tactic of rendition.

Proving all of this in a manner capable of satisfying a court is, however, easier said than done. War crimes are often perpetrated in chaotic settings (…like warzones…) where law and order has broken down, witnesses can be extremely difficult to trace, records and other forms of evidence are easily destroyed, etc., etc. Gathering enough evidence to show that certain events not only occurred, but that they were not isolated incidents is therefore a very difficult task and it makes it easy for detractors to play the ‘few bad apples’ card.

Complementariness

Assuming, however, that the ICC’s re-examination were to conclude that there is enough evidence to suppose that war crimes in Iraq formed part of a policy, Britain can still claim that the ICC does not have jurisdiction due to the principle of complementarity. The ICC was designed to operate as a court of last resort, taking cases only where national courts are unable or unwilling to do so. It ‘complements’ national courts instead of replacing them. What people traditionally had in mind here was some place like the Congo or Rwanda, where infrastructure to cope with these types of trial literally did not exist. In fact, when British actions in Iraq were first raised to the ICC eight years ago, the prosecutor at the time, Luis Moreno-Ocampo said that there was no reason to believe that the parties involved were unable or unwilling to prosecute and declined to take further action at the ICC.

Unsurprisingly, this point of view was reiterated last week by Andrew Cayley, the lawyer tasked with deciding whether the actions of specific soldiers in Iraq merit trial within Britain. Cayley, who himself has considerable experience in international criminal law, stated that he believes that the ICC prosecutor will not order a formal investigation because Britain is conducting its own proceedings. But does that really wash?

The type of examinations Cayley is conducting on a national level are proceeding on a one-case-at-a-time basis and seem to be focused on looking at individual soldiers instead of the whole picture of British military action in Iraq. I personally do not see any possibility of British investigations following up public policy to reach the likes of Tony Blair. With one conviction over 11 years after the start of the war, describing Britain as able and willing to prosecute looks a bit thin. There has been plenty of time to conduct prosecutions, with very little in the way of results. Most importantly none of the prosecutions affect high-level politicians, exactly the type of person whom the ICC has traditionally been most keen to bring to justice.

To put things in perspective: Libya has had to wage an epic battle at the ICC to reassert even some control over the trial of several former members of Muammar Gaddafi’s government. Despite the fact that the Libyan government is actively fighting for the right to conduct these trials, that it has constantly asserted its desire to do so from a very early stage, and that it has jumped through numerous hoops in an attempt to prove its ability to do so, there is apparently still doubt over whether or not it can be trusted with this task. The court has even explicitly stated that the onus is on Libya to prove that it can be trusted with these trials.

That the UK, with hardly a finished trial to show after a decade at the helm, would be able to sail over misgivings about its willingness and ability to take action, is, I think, considering the hassle that Libya has been through, far from certain.
New leadership at the ICC

With the appointment of Bensouda to the post of Chief Prosecutor in 2012, the ICC turned over a new leaf. Although the court hadn’t been in business long, it had already come in for a lot of criticism, not least because every last one of the accused was African. And this wasn’t just because African nations had been happier to sign up to the Rome Statute. Libya was not a State Party to the ICC, yet the Security Council nonchalantly ordered investigations to proceed there, a treatment not meted out to any non-African nation. African leaders understandably felt that the ICC was fast becoming one more forum for developed nations to bash developing ones while letting themselves off scot-free.

To make matters worse, the African Union despised former prosecutor Luis Moreno-Ocampo. Sometimes viciously slammed in the Western press for even contemplating that developed nations were not blameless when it came to international crime, he was viewed by others as the tame lapdog of the United States, an impression not helped by his numerous connections to American Ivy League universities and the USA-controlled World Bank.

Moreno-Ocampo was also dogged by persistent rumors of incompetence. It’s hard to tell whether these were based on truth or grudges over what legal circles saw as his flashy, limelight-hogging lifestyle. It’s the kind of reputation that’s all too easy to gain among a group of people who espouse a dress code that the Amish would consider restrictive (one respected manual for aspiring trial lawyers advises against wearing colored shirts to court, as these are considered too showy.) But far be it for me to defend Moreno-Ocampo, because I wasn’t too fond of him, either.

Bensouda, on the other hand, is African (she hails from Gambia), thus going some way to better the court’s image on the continent where it is most active, and pacifying the African Union, which had lobbied hard for her to get the post. She also seems to be well-liked by other lawyers and is often credited with holding the ICC together as Moreno-Ocampo’s long-serving deputy. She hasn’t yet publicly stamped her image on the ICC, but it is possible that she will not shy away from opening a formal investigation against a powerful State if she thinks it is justified.

The African Union certainly thought that this was the kind of person they were getting in their preferred candidate and there is no reason to believe that she will disappoint in beginning to bring a more equitable justice to the world. The time for action on this point is perhaps more ripe than it was in the Court’s early, vulnerable years, when it had great difficulty getting anyone at all arrested. At the very least, the ICC’s interest in the case is likely to step up the pressure on British authorities to show real results or risk having proceedings taken out of their hands. It’s also likely that groups like PIL and ECCHR will not rest until they succeed in getting what they feel is a real, fair trial for victims. If this bid for further investigation fails, it is entirely possible that they will try again.

Judgment Day

Traditionally there has been little interest in military brutality perpetrated against occupied populations. The comparable war in Vietnam of a generation ago was marked by a great deal of concern for the treatment of American troops and very little for what happened to Vietnamese people, especially if they were actually combatants. There’s been a sea change in that attitude, and with all the myriad problems in international law, at least the culture of self-understood impunity is slowly waning.

The Trial of Tony Blair may not be all that distant and world leaders – even first world leaders – are beginning to have to reckon with lawsuits against them. Donald Rumsfeld has worked hard to deny any knowledge or memory of a substantial portion of his time in office, precisely because he knows that having had anything to do with the Torture Memos could make him culpable. Dick Cheney, of course, famously never wrote anything down (not exactly the sign of a conscience at ease with itself). Tony Blair was a bit more open about himself and his relationship with the hand of destiny, apparently in the honest expectation that he would someday be rewarded for his actions in Iraq. That day might well be coming now.