Did Tony Blair influence trial of UK soldiers accused of killing Iraqi man?

The United Kingdom’s role in the Iraq war has come under the spotlight once again, as newly released UK government files appear to suggest that former Prime Minister Tony Blair pressured officials to ensure British soldiers accused of mistreating Iraqi civilians during the war would not be tried in civil courts.

Documents released on Tuesday to the National Archives in Kew, west London, reveal that in 2005, Blair said it was “essential” that courts like the International Criminal Court (ICC) did not investigate UK actions in Iraq.

What do newly released documents show?

On December 30, the UK Cabinet Office released more than 600 documents to the National Archives at Kew. According to the UK’s Public Records Act 1958, the government is required to release records of historical value to the National Archives after 20 years.

According to the National Archives website, most of the newly added documents relate to the policies implemented by the Blair government between 2004 and 2005, from domestic decisions to ensure the UK would not break up by delegating power to Wales and Scotland, to foreign policy decisions on Iraq and other countries.

According to UK media reports, the declassified files record that Blair told Antony Phillipson, his private secretary for foreign affairs at the time, that it was “essential” that civil courts did not prosecute British soldiers accused of abusing Iraqi civilians in their custody during the war in Iraq.

“We have, in effect, to be in a position where the ICC is not involved and neither is CPS (UK Crown Prosecution Service),” he said in a written memo. “That is essential.”

According to UK media reports, Blair’s comments followed a written memo Phillipson sent him in July 2005 about a meeting between the country’s attorney general at the time and two former UK military chiefs. He wrote that they had discussed the case of British soldiers who were accused of beating an Iraqi hotel receptionist, Baha Mousa, to death.

Mousa, who was killed in September 2003 in Basra, Iraq, had been in the custody of UK troops.

According to records among the newly declassified documents, Phillipson told Blair that the case would be one which would end with a court martial. But he added that “if the Attorney General felt that the case was better dealt with in a civil court, he could direct accordingly”.

“It must not,” Blair stressed.

Christopher Featherstone, associate lecturer at the Department of Politics, University of York, said: “Blair didn’t want prosecution through international law, and wanted military justice – he saw this as less punitive in the punishments – and he didn’t want the perception that the military couldn’t operate effectively in war zones.”

Featherstone told Al Jazeera that the Iraq war has become synonymous in UK politics with Blair and his legacy.

“He [Blair] was convinced that he could persuade the British public of the rightness of the Iraq war, both morally and strategically. However, this became more and more difficult to achieve. As such, he was very concerned about potential prosecution for UK soldiers as this would only amplify opposition to the war, at home and abroad,” he said.

Blair Iraq

Protesters against the war in Iraq gather outside the Houses of Parliament in London, UK, in January 2003 [File: Michael Stephens/PA Images via Getty Images]

What was the UK’s role in the Iraq war?

The Blair government justified the UK’s decision to support the US invasion of Iraq in 2003 using now-debunked claims that Iraq had weapons of mass destruction. The UK said its aim was to eliminate these and to liberate the people of Iraq from the rule of then-President Saddam Hussein.

In 2003, the US sent more than 100,000 soldiers, the UK sent about 46,000, Australia sent 2,000, and Poland sent about 194 special forces members.

But there was a great deal of public debate in the UK about the legality of going to war in Iraq on the basis of what was suspected to be flawed evidence about weapons of mass destruction.

Featherstone, who wrote the book The Road to War in Iraq: Comparative Foreign Policy Analysis, said Blair was “frustrated” by worries from officials about the legality of going to war in Iraq.

“From the interviews I carried out for my book research, senior military and civil servants were worried about the legality and asked for reassurance from the attorney general. However, Blair was frustrated at all the discussion of the legality of the invasion,” he said.

“Blair saw the UK role as showing the international support for the US war on terror, and saw his personal role as building the case for the invasion of Iraq and the toppling of Saddam,” he added.

Speaking to the media in July 2016 after the release of the Chilcot report – a British public inquiry into the UK’s role in the Iraq war – Blair said joining the invasion had been “the hardest decision” he had ever taken during his tenure as prime minister.

The Chilcot report concluded that there had been no “imminent threat” from Saddam Hussein and said the intelligence about weapons of mass destruction in Iraq was “not justified”.

Blair acknowledged that the intelligence was wrong but said invading Iraq was nevertheless the “right decision” at the time, as Saddam Hussein was a “threat to world peace”.

“The world was and is, in my judgement, a better place without Saddam Hussein,” Blair told journalists in reply to the findings of the Chilcot report.

However, he apologised to families who were bereaved during the war and said that “no words can properly convey the grief and sorrow of those who lost ones they loved in Iraq – whether our armed forces, the armed forces of other nations or Iraqis”.

Did UK soldiers abuse Iraqis during the war?

There is a large amount of evidence showing that they did.

Rights groups, including Human Rights Watch, Amnesty International and the European Center for Constitutional and Human Rights (ECCHR), have documented cases of UK soldiers abusing hundreds of Iraqi civilians in their custody during the war.

“Their testimonies [Iraqi civilians] show a pattern of violent beatings, sleep and sensory deprivation, ‘stress positions’, deprivation of food and water, sexual and religious humiliation, and, in some cases, sexual abuse,” the ECCHR said in a report in 2020.

In 2005, three UK soldiers were tried by court martial at a British military base in northern Germany, where photographs showing evidence of the abuses they engaged in had been produced. The soldiers denied the charges but were found guilty of abusing Iraqi civilians during the war and were dismissed from the army.

In 2007, Corporal Donald Payne became the first British soldier to be sentenced. He went to prison for a year after being court-martialled by the army for mistreating Iraqi prisoners during the war.

Payne was involved in the death of the Iraqi civilian and hotel receptionist Baha Mousa, who died in 2003 after enduring 93 beatings.

Has the ICC intervened?

In 2005, the ICC opened an inquiry into the UK’s role in the Iraq war, but closed it in February 2006 when ICC judges agreed that the case did not fall into the top court’s jurisdiction.

However, the inquiry was reopened in May 2014 by ICC prosecutor Fatou Bensouda after rights groups submitted evidence of UK soldiers’ systematic abuse, including murder and torture, of Iraqi civilians during the war.

But in December 2020, Bensouda abandoned the inquiry, saying that while there was “reasonable basis to believe” that “members of the British armed forces committed the war crimes of wilful killing, torture, inhuman/cruel treatment, outrages upon personal dignity, and rape and/or other forms of sexual violence”, the UK government had not tried to block investigations into the case.

In a 184-page report, Bensouda’s office said in December 2020: “If shielding had been made out, an investigation by my Office would have been warranted. Following a detailed inquiry, and despite the concerns expressed in its report, the office [of the prosecutor] could not substantiate allegations that the UK investigative and prosecutorial bodies had engaged in shielding [ie, blocking inquiries], based on a careful scrutiny of the information before it.

“Having exhausted reasonable lines of enquiry arising from the information available, I therefore determined that the only professionally appropriate decision at this stage is to close the preliminary examination and to inform the senders of communications. My decision is without prejudice to a reconsideration based on new facts or evidence,” she added.

The prosecutor’s decision has been condemned by rights groups.

“The UK government has repeatedly shown precious little interest in investigating and prosecuting atrocities committed abroad by British troops,” Clive Baldwin, senior legal adviser at Human Rights Watch said in a statement in December 2020.

“The prosecutor’s decision to close her UK inquiry will doubtless fuel perceptions of an ugly double standard in justice, with one approach for powerful states and quite another for those with less clout,” he added.

What did Blair say about the ICC?

Tuesday’s declassified documents have revealed that Blair was confident the ICC would not prosecute UK soldiers.

According to the documents, in June 2002, a month before the ICC statute entered into force and about a year before the UK joined the Iraq war, Blair had told John Howard, the Australian prime minister at the time, that countries like the UK had no reason to fear the ICC.

The Rome Statue of the ICC is the top court’s main treaty which states that the ICC has jurisdiction to prosecute individuals for serious crimes including crimes against humanity and engaging in committing a genocide.

Blair wrote to Howard after officials in Australia expressed fears about the ICC’s jurisdiction, as Australia had also joined the US and UK in the Iraq war.

But Blair reassured Howard in his letter that the top court “acts only in the case of failed states or where judicial processes have broken down”.

“We believe that responsible democratic states, where the rule of law is respected, have nothing to fear from the ICC,” he wrote.

According to UK media reports, Blair’s administration had agreed to sign the ICC’s Rome Statute in 1998 after the Ministry of Defence and the Foreign Office negotiated with the court that “the court [ICC] may only act when national legal systems are unable or unwilling to do so”.

“It’s certainly true that the ICC has historically been accused of being biased in terms of where it has focused its attention and effort in investigating and prosecuting cases,” Featherstone said.

“However, there are some reasons for this around resources for investigating, the ability to bring the cases to fruition, and the relative power of those being accused,” he added.

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