On Saturday, the Guardian published a special section of the newspaper about the huge repository of documents that has been posted on Wikileaks about the war in Iraq. The information is stunning in its scope. These are American military records that were released by a so-called whistle-blower. It seems that despite their claims to the contrary, the Americans were actually counting the deaths, and that the total for the conflict exceeds 100,000. There are appalling reports of the behaviour of military contractors, of systematic torture, of summary executions, and so on. It makes the conduct of Israeli forces in Gaza that was documented in the Goldstone Report look almost benign by comparison.
What sort of accountability can we expect for this? Will the United Nations Security Council or the Human Rights Council call for a report, as was the case with Gaza? Will the Office of the High Commissioner do a mapping exercise, as was the case with the Democratic Republic of the Congo?
Almost five years ago, the Prosecutor of the International Criminal Court declined to pursue investigations in Iraq into the conduct of British troops, over whom the Court may exercise jurisdiction, because the incidents of killing and torture were not deemed serious enough. Perhaps he should reassess this in light of the new information.
It will be pointed out that these documents concern US troops, and not British forces, and that US troops are not subject to the jurisdiction of the International Criminal Court. But there is a serious argument that the British are also liable for crimes perpetrated by the Americans, because they were part of a joint criminal enterprise to commit a crime within the jurisdiction of the Court. That crime is aggression. Although the Court cannot yet prosecute the crime of aggression, it can prosecute war crimes and crimes against humanity perpetrated as part of a joint criminal enterprise to commit a 'crime within the jurisdiction of the court' (art. 25(3)(iv) of the Rome Statute). Even in 2003, the crime of aggression was a 'crime within the jurisdiction of the court' in accordance with article 5 of the Statute.
The latest documents provide much evidence of war crimes committed by or with the complicity of American troops. At Nuremberg, the International Military Tribunal famously stated that the crime of aggression was 'the supreme international crime', and that it encompassed the evil of the other crimes. Is this not the case with Iraq? Without the crime of aggression, committed when the US and the UK invaded Iraq in manifest violation of the Charter of the United Nations, the war crimes and crimes against humanity would not have taken place. War itself is the supreme evil.
At Public Interest Lawyers we are looking at the UK's liability for the apparent breach of non-refoulement principles that is confirmed by the wikileaks materials. See today's press release at:
Phil Shiner of PIL also spoke about the potential ICC liability of UK personnel at the wikileaks press conference on Saturday. His preliminary address is here:
PIL are actively considering the growing evidence of war crimes committed by the UK and of Art.25 complicity in those of other states in Iraq. Watch this space...
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