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L.I.S.G. Dossier "The Case Against War"
Part IV
WAR CRIMES PROJECT
PAPER 12
Letter to Prime Minister Tony Blair from
Public Interest Lawyers, 22 January 2003
The Right Honourable Tony Blair, 10 Downing Street, London SW1A 2AA
Fax: 0207 925 0918
22 January 2003
Your ref:
Our ref: PS/SA/
Dear Prime Minister
The legality of the use of force against Iraq
We enclose a copy of a letter sent today to your Cabinet colleagues,
the Secretaries of State for Defence and Foreign and Commonwealth Affairs.
We are sure that your lawyers will advise you as to its contents and
implications. It deals with the consequences for you, and other leaders of the UK
Government, if the UK decides to become involved in the further use of force in Iraq, and
if that use of force violates rules of international humanitarian law (IHL). Specifically,
we make clear that if the UK acts so as to bring any breaches of IHL within the definition
of "war crimes" we, and others, will take steps to ensure that you, and other
leaders of the UK Government are held accountable within International Criminal Law.
We wish to address an additional and important point. It concerns your
personal responsibility for the crime of aggression and a crime against peace. It is our
clients’ position that in present circumstances it appears likely that a decision by
the UK Government to use further force against Iraq without a specific Security Council
authorisation (which is as we write absent ) will be a crime of aggression and, therefore,
accordingly, a crime against peace. On the question of an authorisation from the Security
Council we note that you told the House of Commons Liaison Committee on 21 January 2003
that the UK would be willing to use force against Iraq without a Security Council
authorisation and specifically if one of the Permanent Members vetoed a resolution
authorising force. Thus, as far as aggression is concerned, we wish to draw your attention
to a specific passage of our attached letter to the Secretary of State for Defence in
which we write:
"We wish to raise with you at the outset of this letter our
clients’ concerns that the UK Government (and its leaders) are about to use force in
circumstances where a "crime of aggression" is being committed and, thus, a
"crime against peace." Our reasoning on this is as follows:
1. You will be aware that the crime of aggression is included under
Article 5 of the ICC Statute as one of the crimes along with genocide, crimes against
humanity and war crimes, over which the ICC has jurisdiction. The ICC may not yet exercise
jurisdiction over this crime, however, and will not be able to do so until an agreed
definition of the crime is adopted in accordance with Articles 121 and 123 of the ICC
Statute. There is nonetheless a broad consensus that the crime of aggression is a crime
under international law.
2. Crimes against peace were punishable under Principle 6 of the
Nuremberg Principles. Principle 6 defines crimes against peace as
i) Planning, preparation, initiation or waging of a war of aggression
or a war in violation of international treaties, agreements or assurances;
ii) Participation in a common plan or conspiracy for the accomplishment
of any of the acts mentioned under (i).
3. The International Military Tribunal at Nuremberg described
aggression as the ‘supreme international crime.’
4. The outlawing of aggressive war is reflected in Articles 1 and 2 of
the United Nations Charter, and in particular in the prohibition on the use of force at
Article 2(4). Article 1 (1) of the United Nations Charter states that the Purposes of the
United Nations are (amongst other things)
"To maintain international peace and security, and to that end:
to take effective collective measures for the prevention and removal of threats to the
peace, and for the suppression of acts of aggression or other breaches of the peace, and
to bring about by peaceful means, and in conformity with the principles of justice and
international law, adjustment or settlement of international disputes or situations which
might lead to a breach of the peace."
Article 2 states
"..(3) All Members shall settle their international disputes by
peaceful means in such a manner that international peace and security, and justice, are
not endangered.
(4) All Members shall refrain in their international relations from the
threat or use of force against the territorial integrity or political independence of any
state, or in any other manner inconsistent with the Purposes of the United Nations."
5. On 9 September 2002 the
Assembly of States Parties to the ICC Statute adopted a resolution proposed by the
Preparatory Commission for the International Criminal Court in which it stated that it was
desirous of continuing and completing the work on the crime of aggression and to that end
established a special Working Group on the crime of aggression. The discussion paper which
was attached to the Preparatory Commission’s Draft Resolution suggested the following
basic definition of the crime:
"For the purpose of the present Statute, a person commits a
"crime of aggression" when, being in a position effectively to exercise control
over or to direct the political or military action of a State, that person intentionally
and knowingly orders or participates actively in the planning, preparation, initiation or
execution of an act of aggression which, by its character, gravity and scale, constitutes
a flagrant violation of the Charter of the United Nations."
6. Paragraph 2 of the discussion paper suggested that act of
aggression be defined as an act referred to in United Nations General Assembly resolution
3314 (XXIX) ("Resolution 3314") of 14 December 1974. Article 1 of Resolution 3314 states:
"Aggression is the use of armed force by a State against the
sovereignty, territorial integrity or political independence of another State, or in any
other manner inconsistent with the Charter of the United Nations, as set out in this
Definition."
Article 3 provides as follows:
"Any of the following acts, regardless of a declaration of war, shall, subject to and
in accordance with the provisions of article 2, qualify as an act of aggression:
(a) The invasion or attack by the armed forces of a State of the territory of another
State, or any military occupation, however temporary, resulting from such invasion or
attack, or any annexation by the use of force of the territory of another State or part
thereof,
(b) Bombardment by the armed forces of a State against the territory of another State or
the use of any weapons by a State against the territory of another State;
(c) The blockade of the ports or coasts of a State by the armed forces of another State;
(d) An attack by the armed forces of a State on the land, sea or air forces, or marine and
air fleets of another State;
(e) The use of armed forces of one State which are within the territory of another State
with the agreement of the receiving State, in contravention of the conditions provided for
in the agreement or any extension of their presence in such territory beyond the
termination of the agreement;
(f) The action of a State in allowing its territory, which it has placed at the disposal
of another State, to be used by that other State for perpetrating an act of aggression
against a third State;
(g) The sending by or on behalf of a State of armed bands, groups,
irregulars or mercenaries, which carry out acts of armed force against another State of
such gravity as to amount to the acts listed above, or its substantial involvement
therein.
7. It is the widely held view of legal experts in the field that in the
absence of the inherent right arising to take action in self-defence under Article 51 of
the UN Charter, any military action taken by the United Kingdom against Iraq without a
United Nations Security Council Resolution expressly authorising such force would be in
clear violation of the UN Charter and international law."
Thus the purpose of this letter is to put you on notice of two
consequences of an illegal use of force against Iraq by the UK. First, as it is you who
exercises the prerogative power to wage war it is you who will ultimately be held
responsible for the crime of aggression and "crime against peace" we refer to
above; second you and other leaders of the UK Government will be held accountable to the
ICC in the Hague as we make clear in the attached letter to the Defence Secretary.
Please acknowledge receipt of this letter.
Yours faithfully
Public Interest Lawyers
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L.I.S.G. Dossier "The Case Against War"
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