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While you weren’t looking

Systemic injustices that go unpunished, particularly when committed by powerful states and their allies, have fostered a global culture of reluctant acceptance of clear violations of international law.

Where there is damning evidence of violations of international law by powerful states, and limited to no accountability for the same, the breaches of legally binding international rules become the norm rather than the exception.

This has a domino effect within societies – the parallel justice system (one for the powerful and one for the weak) exists in international law and so too it is mirrored in the domestic legal systems of states. Some academics have argued the opposite: that unrectified injustices in the national systems of states are then also seen in the unjust application of international law.

Outside that academic debate, the unfortunate reality is that the consequences of injustices perpetrated by powerful states continue to ravage communities that have been engulfed in prolonged and bloody conflicts that were imposed upon them, against their will. These powerful states, including the US and the UK, evade responsibility for their actions. In fact, 17 years after the 2003 invasion of Iraq, there remains little to no accountability for this breach of the United Nations Charter and the war crimes committed against the Iraqi people.

Several inquiries on Iraq have concluded that the 2003 invasion was a violation of international law, but even some of these ostensibly fair and damning inquiries have fallen short on several counts. For example, there was a 2004 US presidential inquiry established to look into errors in intelligence, which found that there was an intelligence failure vis-a-vis Iraq. There was no finding here on “whether the intelligence had purposefully been manipulated” (Sadat, 2018).

Other inquiries have ruled more definitively on the issue, for example the Dutch Commission headed by Dutch Supreme Court Judge Willibrord Davids, which in its 551-page report – published on June 11, 2010 – found inter alia that the use of force in question had not been authorized by the UN Security Council, and could not be justified on grounds of self-defence.

Similarly, the Chilcot Inquiry Report, which dealt with British involvement in the invasion, was released in the UK in July 2016. The report clearly concluded inter alia that the UK invaded Iraq despite the fact that “peaceful options for disarmament” had not been exhausted. The war, as per the Chilcot Report, was deemed “unnecessary”. However, it is worth noting that even the Chilcot Commission had not been expressly authorized to assess the legality of the use of force, and therefore, did not offer direct findings on the illegality of the invasion. Instead, the Chilcot Report “framed the matter as a factual question, and sidestepped the core legal question” (Sadat, 2018).

That the Iraq war was patently illegal is beyond dispute. In September 2004, then UN secretary general Kofi Annan stated that the invasion of Iraq in 2003 was illegal and in breach of the UN Charter. Unfortunately, recently, the director of the UK’s Service Prosecuting Authority (SPA) announced that thousands of complaints connecting British soldiers to war crimes committed in Iraq had been dropped. The director of the SPA announced that this decision was made owing to two factors: one, there was a lack of credible evidence for most of the claims; and two, the offending was “at such a very low level”.

When an announcement of this sort is heard, one would reasonably expect public outcry. How can the images of abuse, torture and humiliation of detainees inside US-run Abu Ghraib detention facility ever be erased? How can those who have violated the UN Charter not be held accountable for the countless lives lost, families destroyed and livelihoods forever robbed?

Admittedly, there is an International Criminal Court (ICC) Office of the Prosecutor (OTP) preliminary investigation ongoing since it was reopened in 2014, after being terminated in 2006 that is looking into crimes committed by UK nationals within the context of the invasion and occupation of Iraq. Paragraph 195 of the 2018 Report provides that there is reasonable evidence available with the court suggesting that at least 61 persons were subjected to war crimes at the hands of UK servicemen, including murder, torture, attacks upon personal dignity, rape and other forms of sexual violence.

Unfortunately, there is little hope on this front as well. In 2006, while looking into allegations of acts of killing in the course of UK military operations in Iraq, the OTP found that “there was no reasonable basis to believe that these allegations amounted to war crimes within the jurisdiction of the court” (para 197, 2008 Report).

Meanwhile, the British Ministry of Defence has already put forward its position: it does not want service personnel and veterans being held accountable in any way whatsoever. Apparently, the UK also espouses the belief that their military is above the law – something we have in common with our former colonizers.

Amid the Covid-19 pandemonium, otherwise important news may not be given due attention. The UK SPA’s decision to drop thousands of cases is one such example of important news that slips by while we aren’t looking. Powerful states continue to enjoy impunity for grave violations of international law, including the invasion and occupation of Iraq. And as a result of the mass atrocities, violence and destruction inflicted upon the Iraqi people, there has been a spillover into the region at large.

As accountability for Iraq remains a distant dream, one is reminded of Justice Bonello’s observation in the Al-Skeini v United Kingdom case before the European Court of Human Rights: “any state that worships fundamental rights on its own territory but then feels free to make a mockery of them anywhere else does not… belong to the comity of nations for which the supremacy of human rights is both mission and clarion call”. Justice Bonello summed up this conduct perfectly: “gentlemen at home, hoodlums elsewhere”.

The writers are lawyers.