Dutch inquiry finds Iraq war illegal

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Dutch inquiry finds Iraq war illegal
22 January 2010

A Dutch commission of inquiry has concluded that the US-led 2003 Iraq
war was illegal under international law. The conclusion has
far-reaching implications. Potentially, it could open up leading
politicians and military figures in the US and Britain to prosecution
for war crimes.

Prime Minister Jan Peter Balkenende of the Netherlands set up the
Davids Commission in order to avoid a full parliamentary inquiry into
the Dutch role in the invasion of Iraq. He headed the caretaker
government at the time of the invasion and has rejected the report’s
findings. The fact that a commission which was set up with the
intention of producing a whitewash has had to come to such damning
conclusions points to the weight of evidence that exists for the
illegality of the war.

The attempt to maintain the lie that the war was legal is becoming
increasingly difficult. The Dutch report entirely rejects the central
argument used to justify the actions of the British government and
claim that there was a legal basis for the invasion.

“The [UN] Security Council Resolutions on Iraq passed during the 1990s
did not constitute a mandate for the US-British military intervention
in 2003,” the report concludes. “Despite the existence of certain
ambiguities, the wording of Resolution 1441 cannot reasonably be
interpreted (as the government did) as authorizing individual Member
States to use military force to compel Iraq to comply with the
Security Council’s resolutions, without authorization from the
Security Council.”

The report goes on: “The Dutch government’s often repeated view that a
second resolution was ‘politically desirable, but not legally
indispensable’ is not easy to uphold. The wording and scope of
Resolution 1441 cannot be interpreted as such a second resolution.
Hence, the military action had no sound mandate under international law.”

Unlike the ongoing Chilcot inquiry in Britain on the war, the Dutch
team included legal experts. As Professor Philippe Sands QC, an expert
on international law, has pointed out, their conclusion is significant
for that reason:

“There has been no other independent assessment on the legality of the
war in Iraq and the findings of this inquiry are unambiguous. It
concludes that the case argued by the Dutch and British governments,
including the then-attorney general, Lord Goldsmith, could not
reasonably be argued.

“This is the authoritative view of seven commissioners, including the
former president of the Dutch Supreme Court, a former judge of the
European Court of justice, and two legal academics.”

The Dutch report will inevitably raise once again the question of the
advice that Lord Goldsmith gave to the British government. Elizabeth
Wilmshurst, deputy legal adviser to the Foreign Office, resigned in
March 2003, claiming that Goldsmith had told lawyers at the Foreign
Office that war against Iraq would be illegal. According to leaked
documents, Goldsmith told Blair in July 2002 that regime-change was
“not a legal basis for military action.”

In March 2003, Goldsmith warned Blair that he could be indicted under
international law if he invaded Iraq without a second resolution. But
days later, just before the invasion began, he made a statement in the
House of Lords in which he claimed that the war was legal.

Speaking at the Chilcot inquiry this week, Lord Trumbull, who was
cabinet secretary at the time of the invasion, confirmed that
Goldsmith had changed his mind about the legality of the war. Trumbull
attempted to lay the blame on Blair, who, he said, had “bullied”
Goldsmith into backing the war. Trumbull’s behaviour was as thoroughly
hypocritical as that of previous witnesses who have attempted to
excuse their own actions, or inaction, and claim that Blair alone was
responsible for an illegal war.

The British political establishment is becoming increasingly uneasy
about the application of international law to them and to their
allies. That is why the government intends to bring in legislation
that will override the principle of universal jurisdiction in Britain.
This follows the issue of an arrest warrant for former Israeli foreign
minister Tzipi Livni, who was due to visit Britain.

“The government is looking urgently at ways in which the UK system
might be changed to avoid this situation arising again,” current
attorney general Baroness Scotland assured an audience at the Hebrew
University of Jerusalem last week. “Israel’s leaders should always be
able to travel freely to the UK.”

Universal jurisdiction is the well established legal principle that
some crimes can be tried outside of the boundaries of the country in
which they were committed, if they can be considered crimes against
humanity or war crimes. It was expressed in the Nuremberg Trials of
Nazi war criminals at the end of the World War II.

The Nuremberg judges concluded that the trials were “not an arbitrary
exercise of power on the part of victorious nations,” but were “the
expression of international law.” This principle was confirmed by the
United Nations in 1946 and it was expressed in the trial of Adolf
Eichmann in Israel for his part in the Holocaust. In 1998, the House
of Lords upheld the principle in the case of former Chilean president
Augusto Pinochet, who had been arrested in London.

With regard to war crimes, the Geneva Conventions require signatory
nations, such as Britain and the US, to pass the necessary laws and
“provide effective penal sanctions” for persons “committing, or
ordering to be committed” any “grave breaches” of the Conventions.
Crucially, Article 129 goes on to state that each signatory “shall be
under the obligation to search for persons alleged to have committed,
or to have ordered to be committed, such grave breaches, and shall
bring such persons, regardless of their nationality, before its own
courts.”

Following the Davids Commission report, the Dutch government should
therefore feel itself obliged to issue arrest warrants--not only for
Balkenende, but for Blair and his cabinet, as well as all the senior
members of the Bush administration, including the former president.
Naturally, it has no intention of doing so. But that is far from being
the end of the matter.

In its modern form, universal jurisdiction is a democratic principle
that arises historically from the bourgeois revolutions of the late
18th century, when it was established that sovereignty resides in the
people and not the state. It implies that no one is above the law and
that a minister, civil servant or military officer cannot claim
immunity from prosecution for crimes committed against humanity
because he was acting on behalf of a state. That is why individuals
and groups can, at present, apply, as Palestinians have done in the
UK, for an arrest warrant against even the most senior representative
of a government or the armed forces.

This situation is becoming intolerable for the international league of
war criminals who head the governments of the world’s major powers. It
has led to repeated efforts to curtail universal jurisdiction by the
US, Israel Belgium, Spain and now Britain. In doing so, these
governments and their representatives only place themselves more
firmly on a collision course with the mass of the world’s population,
who continue to believe that those responsible for the crimes
committed in Iraq, Afghanistan, Palestine and elsewhere must be
brought to justice.

Ann Talbot

http://wsws.org/articles/2010/jan2010/iraq-j22.shtml

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