One hundred and seventy-nine. That is the number of British Soldiers who lost their lives in the Iraq War between 2003 and 2009.
I would like to apply the same numerical certainty to the number of Iraqi citizens who died as a result of the conflict but it is impossible. First and foremost, because they are still dying in their hundreds every day and the overall death toll from the whole fallout of the invasion could well be in the millions. Just a few weeks ago, an immense blast in the bustling Karrada neighbourhood of Baghdad killed nearly 300 people. Isis claimed responsibility for the attack.
The Iraq war ended in December 2011. British involvement had officially ended two years’ earlier. Countless civilian’s lives have been ruined, millions of people have been displaced whilst terrorist organisations have been allowed to grow and thrive in a state that appears to be almost lawless.
How could this of happened? And who is ultimately responsible for the death and destruction that occurred? Was the Iraq war even legal? If not legal, was it ethical or even moral?
So many questions, some of which have finally been answered a few weeks ago in a blaze of publicity and protest at the Queen Elizabeth Conference Centre a stone’s throw away from my offices in Central London: The long awaited Chilcot Report was released to the public.
Seven years in the making, drawing on a staggering 200 cabinet and cabinet committee meetings, the report confirms a series of assumptions that have haunted families of the fallen British soldiers and Iraqi citizens for over a decade.
The main findings of the 2.6 million word Chilcot Report can be summarised as follows:
- By March 2003, diplomatic actions to resolve the Iraq issue had not been exhausted, therefore the option we chose of going to war was not in fact, the last resort.
- The legal case for going to war was ‘far from satisfactory’.
- There was no sufficient evidence of weapons of mass destruction (WMD), and the claim that Iraq was in possession of these was not challenged by those who should have challenged it.
- Tony Blair knew and had been warned that invading Iraq would increase the number of terror attacks on UK soil
- The US-led coalition resorted to force to remove Saddam before peaceful options for disarmament had been exhausted and we did it in a way which undermined the authority of the United Nations Security Council
- The planning for post-conflict Iraq was “wholly inadequate”, with shortfalls in armoured vehicles to protect UK troops which “should not have been tolerated”.
- The risks of military action were “neither properly identified nor fully exposed to ministers” and the UK took on responsibility for four provinces of southern Iraq “without ensuring that it had the necessary military and civilian capabilities to discharge its obligations”.
- Mr Blair’s sent a now infamous note on 28 July, months before the invasion telling President Bush that “I will be with you, whatever,”.
- This note was not seen by (or shown to) key Ministers such as the Secretary for Defence who should have known of it and been given the opportunity to comment on it.
- British troops did not have the equipment they needed to carry out their duties in Iraq
- Iraq was not actually providing information regarding the creation of WMDs to terrorist organisations.
Many devastated and grieving families will now be wanting to know if they can take legal action against Tony Blair and the British Government. So many people have suffered tremendous pain and loss because of a war which now appears did not have to be fought. British soldiers lost their lives and limbs or are living in constant agony because of their post-traumatic stress or wounds and Iraqi citizens have lost their lives, families, their way of life and their country.
Many have argued over the years that Tony Blair and George W Bush should be prosecuted for war crimes. The Chilcot Report deliberately averted making any comment on whether the decision to go to war with Iraq was legal – with Sir John stating that this could only be decided by the courts.
For a leader to be prosecuted for war crimes on the battlefield, it would be necessary to prove that they knew or should have known of the crimes and failed to take necessary and reasonable steps to prevent them.
Nothing in the Chilcot Report would suggest that there is any prospect of prosecuting Tony Blair for war crimes. That’s a job for lawyers representing the families of the soldiers and for the courts themselves.
Neither will any prosecution be brought for the crime of aggression. In 2010 it was agreed that for a crime of aggression to occur, the perpetrator had to be a political or military leader who is planning or preparing a State act of aggression, which, by its character, gravity and scale, constitutes a manifest violation of the UN Charter.
However, no prosecutions can be brought until 2017 and the law cannot be applied retrospectively.
“Aggression” is not a crime in UK law and so no one could not be prosecuted in our courts either.
Misconduct in a public office
Misconduct in a public office is the most likely crime that Tony Blair could be tried for if charges were to be bought against him.
The offence is extremely serious and carries a maximum penalty of life imprisonment. It is committed when:
- a public officer acting as such;
- wilfully neglects to perform his duty and/or wilfully misconducts himself;
- to such a degree as to amount to an abuse of the public’s trust in the office holder;
- without reasonable excuse or justification.
It is important to note that poor political judgement is not considered misfeasance; Therefore, for Mr Blair to be liable, an actual abuse of the public’s trust would need to be shown. I recall hundreds of thousands of people marching through the streets of London shouting in unison “not in our name” will happily tell you that their trust in the rule of law and our system of governance has been seriously and quite violently abused by the actions of Mr Blair and others.
The former Director of Public Prosecutions, Lord MacDonald QC, believes Tony Blair’s conduct in the build-up to the Iraq war could amount to misconduct in public office.
In an article in The Times, he gave this example:
It [an example of the misconduct] occurred about a week before the war and days before the final legal advice of 17th March 2003 from the then Attorney General, Lord Goldsmith.
Through his official, David Brummell, the attorney general informed Mr Blair that it “was an essential part of the legal basis for military action without a further resolution of the Security Council that there is strong evidence that Iraq has failed to comply with and co-operate fully in the implementation of resolution 1441”.
Lord Macdonald said: “Yet, without seeking any advice whatsoever, or calling for any evidence to determine whether this critical condition was met, Mr Blair simply expressed ‘the unequivocal view’ that such further breaches had indeed occurred.”
Mr Blair’s defence is likely to be that Saddam Hussain posed such an immediate threat that action had to be taken. There is no doubt that Mr Blair will defend his position vigorously.
Misfeasance in a public office
A common law action, misfeasance in a public office is invoked where a public officer has exercised (or failed to exercise) his or her power as a public officer in bad faith, knowing that the act in question would probably cause harm.
The rationale behind the tort is that our society and legal system are based on the rule of law, and that executive or administrative power should only be exercised for the public good, not for improper purposes. The tort of misfeasance in public office is available to help to rein-in the abuse of administrative or executive power.
Judged on the lower civil standard of proof, the balance of probabilities, it requires that the office holder (Mr Blair) owed the claimant (families of the British soldiers or Iraqis killed or injured in Iraq) a duty of care, breached it and that resulted in harm to the claimant. Claimants will need to show physical harm or a recognisable psychiatric illness.
Families of soldiers killed or wounded in Iraq are most likely, I believe to purse this course of action.
It is hard to put into words the devastation the war in Iraq continues to cause the families of British military personal and the millions of Iraqi citizens displaced by the conflict. The loss of life and destruction of a country, whose proud history dates back to when the land was known as Mesopotamia and recognised as one of the cradles of ancient civilisation, is too painful to comprehend. Especially when it is clear from the Chilcot Report that military action could have, at the very least, been delayed, if not avoided altogether.
Those elected to public office have a duty to act in a way that is good for their constituents and for their country. Personal friendships and agendas must be ignored. It is clear Tony Blair and some members of his cabinet did not act in accordance with this duty, choosing a course of action that ultimately cost the lives of hundreds of thousands of people.
For democracy and justice to be upheld, those that took us into this war must be held fully accountable.
Saracens Solicitors is a multi-service law firm based in London’s West End. We have dedicated and highly experienced public law specialists who can assist you with any questions you have regarding taking legal action against someone in a public office. For more information, please call our office on 020 3588 3500.