Jack Straw – War Criminal? Not by law!

The labelling of New Labour ministers, such as Jack Straw, as war criminals has been a vogue that continues to manifest itself in the opinions of anti-war campaigners, old lefties and any others of the political creed that look back with derision on the government of Tony Blair. Due to the strength of such accusations, such assertions of criminality must be rebutted and exposed as displaying a deficiency in understanding of international law and of what a war criminal actually is.

Straw’s accusers mostly point to the legal basis on which the law was justified by the UK government – the shaky evidence of a WMD programme, the procrustean use of UN resolutions, the UK’s failure to uphold its obligations to the Iraqi population – as a basis for labelling him and his ilk as war criminals.

What Straw’s accusers fail to understand is that these questions of legality so regularly aired pertain to relationships between States and to their obligations and do not apply to individual people. If it were shown that the UK contravened UN resolutions and went to war in Iraq illegally, or if it were shown that the UK failed in its obligations toward the Iraqi people after invasion, it would merely entail that the UK, as a State, would incur responsibility for failing in its obligations. This implies nothing in regards to the criminality of those who form the State’s government.

A war crime, according to the International Committee of the Red Cross and the Statute of the International Criminal Court is a serious violation of international humanitarian law. This includes acts which constitute grave breaches of the Geneva Conventions of 12 August 1949 such as wilful killing, torture, taking hostages, or depriving prisoners of war their rights to a fair trial. Criminal acts may also include intentionally directing attacks against the civilian population which are not taking part in hostilities or against civilian objects which are not military objectives. In accordance with the Rome Statute, one may also be found criminally responsible for ‘intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.’

Barring an as yet unseen extraordinary revelation, Jack Straw certainly did not carry out these acts in person and so any criminal prosecution would rest on his actions qualifying as the other modes of participation as laid out under Article 25 of the Rome Statute. These consist of ordering, soliciting or inducing the commission of such acts, aiding, abetting or otherwise assisting in their commission or in any other way contributing to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Take note, these acts are distinct from ordering, soliciting or inducing a war.

Those who label Straw as a war criminal need to understand what they are accusing the man of. They accuse Straw of, at best, assisting in the manufacture of a war in full knowledge that British soldiers would commit acts such as torture, rape, the taking of hostages, purposely attacking or forcibly transferring civilians, or wreaking wanton destruction of property. At worst, they accuse Straw of soliciting a war with the aim and purpose that such crimes would be committed.

It is clear, once understanding what a war crime actually constitutes, that it would be extremely difficult to prosecute a person such as Straw for such acts. The basis of ‘war criminal’ accusations would have to rest on Jack Straw conspiring to take the UK to war with Iraq for the purposes of committing a war crime, a strong and farfetched accusation indeed.

Briefly, but most importantly, there is still one very important issue that those who subscribe to the UN ideology should consider before labelling Straw a war criminal; that he has never been found guilty of war crimes by a court of law. Straw is yet to be even prosecuted for war crimes and so labelling him a war criminal is incompatible with the international fair trial standards that form an important part of the UN human rights agenda.

 

Benjamin F. Owen

 

http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter44_rule156

http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf

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Jack Straw and the Iraq war, immoral, illegal, or both?

 File:Jack Straw 050519-D-9880W-029.jpg

Whatever your opinion on Britain’s involvement in the Iraq war; that it was immoral, catastrophic and a humanitarian disaster; a price worth paying or the continuation of the imperial designs of global powers or necessary for global security, the question is, was it legal? More specifically, was Jack Straw complicit in an illegal act via the invasion of Iraq or via the UKs conduct during the occupation? This blog is concerned primarily with the legal case; morality is a personal and much more complicated matter that must come down to each person’s conscience.

The United Nations charter is very clear regarding the legality of the threat or use of force in international relations. Without a Security Council resolution it is illegal. The only exception is found in Article 51, the right to self-defence, but an ICJ (International Court of Justice) ruling found that an actual armed attack had to have occurred by one state against another to invoke this clause. There have been attempts to argue that pre-emptive strikes are legal but these are yet to be accepted as part of international law. As Iraq had not actually attacked the UK and that the pre-emptive doctrine is not widely accepted the only course left is via a Security Council resolution. Did the use of force against Iraq have such a resolution? The answer varies depending on one’s point of view as is the case with much in international law. The resolution most looked to is resolution 1441. United Nations Security Council Resolution 1441 offered Iraq under Saddam Hussein “a final opportunity to comply with its disarmament obligations” that had been set out in several previous resolutions. Does this resolution allow for the use of force?

Those who argue that resolution 1441 sanctions the use of force mainly pin their hopes on the interpretation of the phrase “serious consequences”. It is reasonable to argue that, due to the extensive sanction regime that Iraq was under prior to the invasion it is hard to imagine what “serious consequences” could mean other than the use of force. As Jack Straw states, “Everyone knew what ‘serious consequences’ meant — war”. He continues by asserting that “Hard-nosed negotiators from Paris, Moscow, Berlin and Beijing knew full well its military consequences”.

However, the resolution specified the requirement for the Security Council to further deliberate on how to respond after the disarmament inspection team reported back. Paragraph 12 states the Council, “Decides to convene immediately upon receipt of a report [….] in order to consider the situation […]”. The phrase serious consequences appears in the next paragraph and only calls for the Security Council to see any material breach in the context, “that the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations”. Therefore, even if “serious consequences” was understood by all to mean military action, resolution 1441 did not authorise it. As Professor Mary Ellen O’Connell argues, “in the event of non-compliance the United States [or the UK] is not automatically authorized to take unilateral military action […]”.

The need for a second resolution is implicit in 1441. This follow up resolution authorising these “serious consequences” never happened. Instead the invasion of Iraq went ahead with all its tragic consequences. All the more tragic if the statement of the Secretary-General is to be believed, that “Perhaps if we had persevered a little longer, Iraq could yet have been disarmed peacefully or – if not – the world could have taken action to solve this problem by a collective decision, endowing it with greater legitimacy, and therefore commanding wider support, than is now the case”.

The next Security Council resolution relating to Iraq was concerned not with invasion but with the occupying forces obligations under international humanitarian law. Resolution 1472 “Requests all parties concerned to strictly abide by their obligations under international law […] including those relating to the essential civilian needs of the people of Iraq […]”. Stating also that, “the Occupying Power has the duty of ensuring the food and medical supplies of the population […]”. As the Secretary-General requested “I hope that all parties will scrupulously observe the requirements of international humanitarian law”. These requirements were not accomplished by the occupying powers, as has often been noted; the invasion was a success, the occupation a disaster. Jack Straw himself accepts that, “the reconstruction programme was a shambles”.

It would seem reasonable by this admission and the harsh realities of occupied Iraq to conclude that the occupying forces did not achieve their international legal obligations regarding civilian care. It would also seem reasonable to conclude that the invasion of Iraq was not sanctioned by the Security Council and was therefore illegal. So it seems that we have two counts of illegal behaviour by the UK Government. As a prominent part of that Government with responsibility for foreign Affairs, and considering Jack Straw himself admitted, “I could have stopped us going to war in Iraq” he must accept some responsibility for these illegal acts. Indeed when facing the Iraq Inquiry Jack Straw stated “I made my choice. I have never backed away from it, and I do not intend to do so, and fully accept the responsibilities which flow from that”.  Finally, the moral case for and against the war, as with many moral questions, is a matter of opinion and personal conscience. Indeed in international as in domestic law morality and legality are not always in sync. However, in this case, in my opinion, they are. The Iraq war was both illegal and immoral.

Michael Stagg

Sources

http://www.un.org/en/documents/charter/chapter1.shtml

Resolution 1441 (2002) Adopted by the Security Council at its 4644th meeting, on 8 November 2002

Resolution 1472 (2003) Adopted by the Security Council at its 4732nd meeting, on 28 March 2003

http://www.dailymail.co.uk/news/article-2208155/Jack-Straw-I-stopped-going-war-Iraq-This-I-didnt.html

http://www.think-israel.org/piggott.selfdefence.html

http://en.wikipedia.org/wiki/United_Nations_Security_Council_Resolution_1441

http://jurist.law.pitt.edu/forum/forumnew73.php

http://www.un.org/Depts/oip/cpmd/notices/SGstatement030320.html

http://www.theguardian.com/uk/blog/2010/jan/21/iraq-war-inquiry-iraq