EXECUTIVE SUMMARY

On 20 March 2003, the USA, the UK and supporting nations (“the coalition”) commenced a full-scale military invasion of Iraq. The invasion was sought to be justified by the perceived threat of Iraq’s alleged weapons of mass destruction (WMD) and the need for it to comply with various UN Security Council Resolutions relating to disarmament, dating back to November 1990. The invasion lasted until 1 May 2003 and involved various methods of attack and weapon systems that had inevitable consequences in terms of civilian casualties. There are estimates that these include at least 20,000 civilian injuries and over 8,000 deaths.[1]

Non-governmental organisations (NGOs), other groups and individual politicians from around the world have expressed numerous serious concerns about the number of civilian casualties and about the weapons and methods of warfare used by the coalition forces in the light of clear obligations under international humanitarian law. These concerns are intensified in the light of the wide-ranging definitions of “crimes against humanity” and “war crimes” in Articles 7 and 8 of the Rome Statute establishing the International Criminal Court (ICC Statute).

Various NGOs and groups in the UK, USA, Canada and elsewhere sought to establish by means of an independent inquiry whether, in the light of available evidence about the attacks, crimes against humanity and war crimes have been committed. Fully respecting these initiatives and accordingly an independent panel of eight leading academic international lawyers met in London on 8-9 November 2003. The panel heard oral evidence from eye-witnesses and expert witnesses, were presented with two volumes of written evidence and were assisted by written and oral submissions by Leading and Junior Counsel to the Inquiry. After due deliberation during the inquiry and afterwards, the panel’s main findings are represented in this report. It should be stressed that it was not the panel’s function to determine the legality of the war or whether those responsible for alleged war crimes should be prosecuted. Its function was limited to providing a prima facie answer to:

‘Is there sufficient cause and evidence for the International Criminal Court Prosecutor to investigate members of the UK Government for breaches of the ICC Statute in relation to crimes against humanity and/or war crimes committed during the Iraq conflict and occupation 2003?’

The panel has answered this question in the affirmative. It has analysed facts and evidence concerning various matters, including the use of weapon systems using depleted uranium, damage to civilian infrastructure and in particular electricity supplies, the conduct of the occupation and the preservation of the cultural heritage of Iraq. Not all of these matters are the subject of the call for an investigation.

It should also be noted that the panel was concerned only with the possible criminal liability of members of the UK Government, given that, unlike the UK, the USA is not a party to the ICC Statute. The panel’s view is that the ICC Prosecutor should initiate a preliminary investigation under Article 15(1) of the Statute and that the matters to be investigated should include:

a. In circumstances where the USA may have led attacks that involve the commission of war crimes (or otherwise be the main perpetrator of any such crimes) (i) did the UK Government have sufficient prior knowledge of US intentions to engage its responsibility for the commission of an international wrongful act and the individual criminal responsibility of members of the UK Government and military? command and (ii) specifically in the light of the Rules of Engagement and detailed knowledge arising from any investigation as to the planning, design and implementation of these operations, did the UK have common purpose with the US in criminal activities?

b. Did attacks on the media violate any provisions of Article 8 of the Statute and specifically Article 8(2)(b)(i)(ii) and (iv)?

c. Were attacks launched on locations, or civilian means of transport, which were not “military objectives” in circumstances where there were civilian casualties so as to breach Article 8(2)(b)(i) or (ii)?

d. Were methods of warfare or weapon systems used, or locations of attack chosen, such that

· adequate assessments of “the concrete and direct military advantage anticipated” within the meaning of Article 8(2)(b)(iv) were made given the risks to civilians?

· impermissible military objectives were excluded (for example, those concerned with “regime change” rather than the elimination of any existing WMD)?

· the proportionality requirement was at all times respected and in particular all feasible precautions were taken to avoid and in any event minimise incidental loss of civilian life, injury to civilians and damage to civilian objects; and

· there was not “incidental loss of life or injury to civilians or damage to civilian objects” which was “clearly excessive in relation to the concrete and direct overall military advantage anticipated.”

e. Given the use of sub-munitions (“cluster bombs”) in urban areas by the UK,

· is the intent requirement of Article 30 satisfied?

· did single or cumulative uses of cluster bombs violate the principles of discrimination and proportionality (Article 51(5)(b) of Additional Protocol 1977)?

· was such use otherwise prohibited under Article 8(2)(b)(iv) of the Rome Statute?

Finally, the panel notes that under the International Criminal Court Act 2001, which enables the UK to meet its obligations under the Rome Statute by incorporating the offences in the Statute into domestic law, proceedings shall not be instituted except with the consent of the Attorney General (section 53(3)). In the first instance, therefore, Peacerights will submit this report to the Attorney General as well as the ICC Prosecutor.

The matters raised in this report are urgent and demand rigorous scrutiny by those responsible for the prosecution of these alleged offences. States and individuals must not deviate from the standards set by international humanitarian law and enforced by the ICC Statute. In so far as these obligations have been violated and excessive civilian casualties have resulted, those responsible must be held to account.

[1] http://www.iraqbodycount.net/editorial_augozo3_print.htm visited on 8/1/04. See also “Off Target: the conduct of the war and civilian casualties in Iraq,” Human Rights Watch, 2003.