Statement at the United Nations Regarding Legal Accountability for the Iraq War

The following is a statement given by Inder Comar at a side event of the 39th Regular Session of the UN Human Rights Council in Geneva, Switzerland, on September 26, 2018

Inder Comar (left) with Naji Haraj of the Geneva International Centre for Justice, moderator Daniela Donges, Dr. John Pace (former United Nations human rights diplomat from 1966-1999) and Tahar Boumedra (former chief of the Human Rights Office of the United Nations Assistance Mission for Iraq (UNAMI).

Inder Comar (left) with Naji Haraj of the Geneva International Centre for Justice, moderator Daniela Donges, Dr. John Pace (former United Nations human rights diplomat from 1966-1999) and Tahar Boumedra (former chief of the Human Rights Office of the United Nations Assistance Mission for Iraq (UNAMI).

I. Introduction

On March 20, 2003, the United States of America led a coalition of countries in invading and occupying the Republic of Iraq.

Today, fifteen years later, the prospect of accountability for the invasion -- an illegal act of aggression under international law -- seems as remote as ever.

II. The Question: Will We Ever Have Accountability For The Iraq War?

The question posed to me today, which I will attempt to answer: can we hold those people responsible who invaded Iraq? Can we ever hold a great power responsible for its international crimes?

My argument today is quite simple. If nothing is done to hold those leaders accountable who destroyed Iraq, then it is only a matter of time before a crime as horrific as the Iraq invasion -- and the annihilation of another UN member state -- takes place.

III. Saleh v. Bush Case

To date, there has only been one attempt to hold members of the Bush Administration responsible for the crime of aggression against Iraq. In 2013, Iraqi refugees filed a lawsuit in United States federal court seeking to hold President Bush and others personally liable for their attack on the government of Iraq, and for a court order declaring the war illegal under U.S. and international law.

But in 2017, a federal court of appeal held that President Bush had an immunity from investigation by Iraqi victims. And since he had an immunity, the court could do nothing, and dismissed the case. This case -- Saleh v. Bush -- is the only case that I know of in which the legality of the Iraq War was brought before a court.

And despite several meaningful opportunities to rule on the legality of the Iraq War, the court declined to scrutinize the conduct of U.S. leaders, or U.S. obligations under international law.

IV. Moving Toward Accountability: International, National and Personal

How can we impose accountability over the great powers for their crimes under international law? Is the vision of a world governed by law so obscure now, that we will let the great powers commit their crimes with abandon?

I believe that it is possible for us to construct a world in which leaders of even the most powerful countries can be held liable for the internationally wrongful acts. For us to get to that world, we have to take action at three different levels -- at the international level, at the national level and at the personal level.

V. International Changes

First, what can be done at the international level? Today, very little, but I offer some suggestions shortly.

A. The ICC

While international law recognizes the crime of aggression, there are currently very few avenues for jurisdiction. True, the International Criminal Court now has jurisdiction for countries who have adopted the amendments to the Rome Statute. But the Iraq War happened long before this jurisdiction was activated. And as many of you know, the U.S. is not a party to the International Criminal Court, and it will fight tooth and nail any attempt by the ICC to exercise jurisdiction.

While it is highly improbable that the ICC will exercise its jurisdiction over the United States, or over any great power, for the crime of aggression, the adoption by countries of the ICC amendments is nonetheless important. It gives countries an opportunity to incorporate the crime of aggression into domestic law. It raises the profile of this Nuremberg-era crime. And it does leave some hope that the ICC can become more relevant as it evolves.

B. The UN

There has also been a failure to investigate the causes of the Iraq War by international institutions. Kofi Annan famously declared in 2003 that from his perspective, as Secretary General, the Iraq War was illegal. But that was the lone pronouncement about the legality of the invasion from the United Nations.

C. The Human Rights Council

Even the Human Rights Council has failed to examine the causes of the war, or to connect the glaring, obvious dots between the situation in Iraq today and the causes of the conflict stemming from the 2003 invasion. It is as if we are expected to believe that the violence in Iraq emerged just out of thin air, perhaps like a demonic genie emerging from some mysterious lamp. But the causes of the violence over the last decade-in-half are human -- all too human.

D. Changes Needed

What can we do to open the avenues of accountability at the international level? Let us talk about that difficult subject. It is difficult because many people believe that reform is impossible. But the alternative is the status quo -- a status quo in which countries can be destroyed at the will of a small group of people, sitting on thrones in distant, imperial capitals.

Security Council Reform

First, security council reform. At the international level, UN member states must remove the exemption from scrutiny that the great powers have given themselves through the Security Council. Honest people have to acknowledge, once and for all, that the current security council framework is not only an impediment to peace: it is an active agent of war and conflict. There is no greater example of how the Security Council failed in its mission that the example of the Iraq War. Despite the effective veto of the French, who demanded more time and investigation before they would consent to military action, and the failure to secure an authorization to invade, the United States and the United Kingdom, invaded Iraq, any way, committing the crime of aggression.

Support for the ICC

But we need more than just Security Council reform. At the international level, we also need to support and sustain the International Criminal Court. I recognize that this may be a controversial position to take, in light of the many criticisms -- some legitimate, some not so much -- against this fledgling institution. But we cannot overlook the fact that for the first time in human history, we wake up into a world where there is an international institution that is permanent, global, and with jurisdiction and power to scrutinize the activities of global leaders for war crimes, crimes against humanity, and the crime of aggression.

The chief reason the ICC remains limited in its effectiveness is because the great powers have intentionally hampered it. One need look no further than the diktat of current National Security Advisor John Bolton, who recently threatened ICC personnel -- including judges and prosecutors -- with US criminal prosecution if they dared to investigate the crimes committed by the American government. According to Bolton, and those who think like him, the United States must remain free to commit crimes as its pleasure, and it will not be restrained in so doing by other lawyers, judges, or courts. This was the thinking and the reasoning which killed so many Iraqis, which destroyed that country, which is currently destroying other countries in the Middle East and elsewhere -- that thinking and reasoning is not only alive and well, it is becoming more formidable, more pernicious, more dangerous. Before us sits death, on a pale horse.

More from the Human Rights Council

And finally, at the international level, the Human Rights Council must do more. It must investigate the crimes of great powers, including the United States, and including the crimes committed because of the invasion and occupation of Iraq. I call on the Council to appoint a special rapporteur on these issues. The Human Rights Council must be more active in providing oversight to the crimes committed by the great powers. Just like every other UN institution, the Council is under attack from those who wish to avoid scrutiny. It is with some irony that we meet today on the grounds of the same building which housed the League of Nations -- an institution we remember today as being incapable, and impotent, to stop the species butchery of the Second World War. We cannot let the Council, or the United Nations in general, share the fate of the League.

VI.  National Level

At the national level, what can we do? I offer a couple suggestions of policies that countries can adapt to make themselves relevant and even powerful against the crimes of the great powers.

A. Universal Jurisdiction

First, countries must adopt policies of universal jurisdiction. The national courts of civilized countries must open their doors to both civil and criminal investigation and prosecution of individuals who have committed grave violations of international law. Almost 20 years ago, General Augusto Pinochet had a warrant issued for his extradition to stand to account for his crimes committed while the leader of Chile. Pinochet was a favored Western autocrat; in hindsight, his indictment by a Western court seems close to unbelievable. But independent nations who support the rule of law must remember the Pinochet example and open their doors to investigating the crimes of the great powers.

This is a tough ask. I am not naive or blue eyed about this. When Belgium tried to do this exact thing in 2003 for a potential investigation into the 1991 Amiriyah Shelter Bombing by the United States, the United States threatened that it would destroy Belgium’s status as a center for international institutions. Belgium, soon after, amended its universal jurisdiction law to stop that investigation. I know it will be tough to stand up to the threats of the great powers. But the alternative is to continue to live in a world where the strong exploit the weak.

B. Regional Courts

At the national level, countries must also commit to more powerful regional courts as well. Regional courts and bodies permit weaker countries to band together to support and promote their mutual self interests. They should not be overlooked. So, a regional approach, combined with adopting brave policies of universal jurisdiction that would cover the crime of aggression: this is something that must be adopted at the national level.

VII. Personal Level

Finally, the third level of change, what I call change at the personal level.

A. American Culture after 9/11

And here, I will speak from personal experience as an American who lived through the transformation of the American national discourse caused by the exploitation of the 9/11 attacks in New York in 2001. American leaders intentionally and outrageously took advantage of that terrorist attack to create a permanent state of emergency, or what the Italian theorist Giorgio Agamben might describe as a permanent state of exception -- ein Ausnahmezustand --  in the United States. American leaders used 9/11 as their excuse to invade and attack Iraq. They lied to the American public and to the international community about Iraq’s connections to al Qaeda, and about the Iraqi weapons programme. I lived through all of that.

And I tell you, 15 years after the invasion of Iraq, and 17 years after 9/11, the American public remains unwilling to face up to the fact that the actions of their government have killed and displaced millions; have created untold levels of human suffering; and have destroyed the legacy of the Nuremberg Tribunal, and the international framework put in place after World War II to prohibit aggression.

Americans appear fixated on the glorification of empire, and the unquestioning devotion to war. This is a great evil: it is now destroying American society, and it is destroying the world.

America today is a far more dangerous place than it was the day before 9/11 -- both a danger to itself, and a danger to the rest of the world.

B. Changes We Need To Make As Humans

All of us, as humans, whatever our nationality, have to reject the siren’s song of imperialism, war making, armaments, and nuclear weapons. At a personal level, we must commit ourselves to democratic principles, to fundamental human rights, to the peaceful settlement of disputes, and to the rule of law, including the international rule of law.

This is a personal choice we have to make -- to never side with the murderers, or the accomplices to those murderers, whoever they may be.  

And again, let us be honest: in making that choice, this means some degree of personal sacrifice, because our entire world, our economics, or politics, is geared towards the mass slaughter of humans by other humans.

This may mean we have to choose career paths that touch, as little as possible, the financing and production of war and the weapons of war. It will mean adopting a politics that calls for dialogue and civilization, instead of domination, exploitation, and empire.

But I prefer to make that sacrifice, because at the end of the day, such a sacrifice provides some hope of species survival. If we do nothing, and continue on the current path, we are looking at human extinction — whether through one last war or because we will refuse, even through the haze of our self-inflicted wounds, to cooperate in solving the climate crisis, which is an existential threat to each and everyone one of us.

VIII. Some Hope

But let me end some hope here, as I believe there is a lot to hope for. I don’t think it would take many people, operating from various countries, who have chosen to dedicate their lives to the transformation of our species, to effect a tremendous, positive change in the world today. But it will require courage: a great courage. A world in which our species can live in harmony with each other, and with this planet, is possible.

But to get there, let us acknowledge the reality of the imperial system we live with, each and every day. And yes, let us have the courage to resist that empire and fight for democracy, through democratic means, to our last dying breath.