If you've been following the Chilcot Inquiry you'll know that Peter Goldsmith, the then Attorney General wrote to the then Chief of the Defence Staff (Admiral Sir Michael Boyce) on 13th March 2003 supposedly telling the CDS that the war in Iraq would be "legal". Strictly speaking the communication was from David Brummell (an assistant to Goldsmith) to a Ministry of Defence Legal Adviser (probably David Hemming).
One part of Peter Goldsmith's claims was that military action was legal under national law.
But was Peter Goldsmith telling the truth? Had he carried out a thorough consideration of national law in a manner which one would expect of a diligent professional? Or was Peter Goldsmith negligent? Did he mislead the Chief of the Defence Staff?
I'm not going to attempt a detailed answer to those questions here. Suffice, for the moment to say the following. I can trace no evidence that Peter Goldsmith considered either of these pieces of United Kingdom primary legislation. No evidence that the consideration of their implications happened at all and no evidence that he considered them adequately. Nor evidence that he drew the potential issues to the attention of the Chief of the Defence Staff.
I'll point you to two UK laws that I think relate directly to the possible criminal liability of UK military personnel (as well as ministers and civil servants) regarding what was done by us in Iraq.
The two UK statutes that I'm referring to as relevant to the criminality of military personnel etc in the war are:
1. The Terrorism Act 2000
2. The International Criminal Court Act 2001 and its equivalent in Scotland The International Criminal Court (Scotland) Act 2001.
What on earth has either of those topics to do with Iraq, you might ask.
At the risk of stating the obvious, a piece of UK primary legislation consists of more than its title.
To keep this post to a reasonable length I'm simply going to point you to a few relevant definitions, offences etc. I'll develop detail and/or other issues in future posts.
Terrorism Act 2000
Among the relevant sections of the Terrorism Act 2000 you might find useful and illuminating to read are the following:
1. Section 1, where "terrorism" is defined. Ask yourself if you can see a difference between what the UK did in Iraq and the definition of "terrorism".
2. Section 40 where "terrorist" is defined. And think about Tony "The Terrorist" Blair. If what we did in Iraq is "terrorism" (as defined in Section 1) then Tony is "officially" a "terrorist", as defined in Section 40.
3. Section 56. Tony "The Terrorist" Blair took a part in directing an organisation that carried out in Iraq acts of "terrorism" as defined in Section 1, didn't he? Some might say that life imprisonment is too good for him but, personally, I'd settle for that as an outcome.
International Criminal Court Act 2001
Now, take a brief look at the International Criminal Court Act 2001 (the Scottish version is very similar with respect to the issues I'll touch on here). The important aspect for this discussion is that in addition to setting the scene for the establishment of the International Criminal Court it also created offences under UK law that, I believe, can be investigated and tried in the UK. This is made explicit in the title of Part 5 of the International Criminal Court Act 2001: "Offences Under Domestic Law". That doesn't leave much doubt about it, does it?
In Section 51 three offences are stated. They are
2. Crime against humanity
3. War crimes
To understand what is an offence under UK law you need to look at the definition of what constitutes each of the three crimes just listed. A criminal prosecution in the UK will be based on the definition in this Act (or the equivalent Act in Scotland), not on a colloquial approximation of what the terms might mean.
Here is the link to the definitions for "genocide", "crime against humanity" and "war crimes". For each of the definitions it is an offence to have carried out any one of the offending actions. For the offence to have been committed it is not necessary to have carried out all the acts in a definition.
2. Crime Against Humanity
3. War Crimes
I think there is good cause for some UK military personnel to have difficulty sleeping peacefully in their bed. But detailed consideration of that is for another time.