The Iraq Inquiry Report (2009-2016) documents how Tony Blair committed Great Britain to war early in 2002, lying to the United Nations, to Parliament, and to the British people, in order to follow George Bush, who had planned an aggression on Iraq well before September 2001.

Australian Prime Minister John Howard conspired with both reckless adventurers, purported ‘to advise’ both buccaneers, sent troops to Iraq before the war started, then lied to Parliament and to the Australian people. He continues to do so.

Should he and his cabal be charged with war crimes? This, and more, is investigated by Dr George Venturini in this outstanding series.

Australia’s involvement in Iraq (continued)

Part Two of the Draft Code of Crimes against the Peace and Security of Mankind prepared by the International Law Commission in 1996 contains the following:

Article 16. Crime of aggression

“An individual who, as leader or organizer, actively participates in or orders the planning, preparation, initiation or waging of aggression committed by a State shall be responsible for a crime of aggression.”

The following notes attached to the Commentary are of assistance. “(1) The characterization of aggression as a crime against the peace and security of mankind contained in article 16 of the Code is drawn from the relevant provision of the Charter of the Nürnberg Tribunal as interpreted and applied by the Nürnberg Tribunal. Article 16 addresses several important aspects of the crime of aggression for the purpose of individual criminal responsibility. The phrase “An individual … shall be responsible for a crime of aggression” is used to indicate that the scope of the article is limited to the crime of aggression for the purpose of individual criminal responsibility. Thus, the article does not address the question of the definition of aggression by a State which is beyond the scope of the Code.

(2) The perpetrators of an act of aggression are to be found only in the categories of individuals who have the necessary authority or power to be in a position potentially to play a decisive role in committing aggression. These are the individuals whom article 16 designates as “leaders” or “organizers”, an expression that was taken from the Charter of the Nurnberg Tribunal. These terms must be understood in the broad sense, that is to say, as referring, in addition to the members of a Government, to persons occupying high-level posts in the military, the diplomatic corps, political parties and industry, as recognized by the Nürnberg Tribunal, which stated that: “Hitler could not make aggressive war by himself. He had to have the cooperation of statesmen, military leaders, diplomats and businessmen”. [Reference omitted].

(3) The mere material fact of participating in an act of aggression is, however, not enough to establish the guilt of a leader or organizer. Such participation must have been intentional and have taken place knowingly as part of a plan or policy of aggression. [Emphasis added]. In this connection, the Nürnberg Tribunal stated, in analysing the conduct of some of the accused, that:

When they, with knowledge of his aims, gave him their cooperation, they made themselves parties to the plan he had initiated. They are not to be deemed innocent because Hitler made use of them, if they knew what they were doing. [Reference omitted].

(4) Article 16 refers to “aggression committed by a State”. An individual, as leader or organizer, participates in that aggression. It is this participation that the article defines as a crime against the peace and security of mankind. In other words, it reaffirms the criminal responsibility of the participants in a crime of aggression. Individual responsibility for such a crime is intrinsically and inextricably linked to the commission of aggression by a State. [Emphasis added] The rule of international law which prohibits aggression applies to the conduct of a State in relation to another State. Therefore, only a State is capable of committing aggression by violating this rule of international law which prohibits such conduct. At the same time, a State is an abstract entity which is incapable of acting on its own. A State can commit aggression only with the active participation of the individuals who have the necessary authority or power to plan, prepare, initiate or wage aggression. [Emphasis added] The Nürnberg Tribunal clearly recognized the reality of the role of States and individuals in stating that:

Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced. [Reference omitted]. Thus, the violation by a State of the rule of international law prohibiting aggression gives rise to the criminal responsibility of the individuals who played a decisive role in planning, preparing, initiating or waging aggression. [Emphasis added]. The words “aggression committed by a State” clearly indicate that such a violation of the law by a State is a sine qua non condition for the possible attribution to an individual of responsibility for a crime of aggression. Nonetheless, the scope of the article is limited to participation in a crime of aggression for the purpose of individual criminal responsibility. It therefore does not relate to the rule of international law which prohibits aggression by a State.

(5) The action of a State entails individual responsibility for a crime of aggression only if the conduct of the State is a sufficiently serious violation of the prohibition contained in Article 2, paragraph 4, of the Charter of the United Nations. In this regard, the competent court may have to consider two closely related issues, namely, whether the conduct of the State constitutes a violation of Article 2, paragraph 4, of the Charter and whether such conduct constitutes a sufficiently serious violation of an international obligation to qualify as aggression entailing individual criminal responsibility. The Charter and the Judgment of the Nürnberg Tribunal are the main sources of authority with regard to individual criminal responsibility for acts of aggression.

(6) Several phases of aggression are listed in article 16. These are: the order to commit aggression, and, subsequently, the planning, preparation, initiation and waging of the resulting operations. These different phases are not watertight. Participation in a single phase of aggression is enough to give rise to criminal responsibility.

(Text adopted by the International Law Commission at its forty-eighth session, in 1996, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (at para. 50). The report, which also contains commentaries on the draft articles, appears in Yearbook of the International Law Commission, 1996, vol. II, Part Two. Copyright © United Nations 2005, Draft Code of Crimes against the Peace and Security of Mankind).

The Rome Statute of the International Criminal Court lists the crime of aggression as one of the most serious crimes of concern to the international community, and provides that the crime falls within the jurisdiction of the Court. The Rome Statute was signed by Australia on 9 December 1998, ratified on 1 July 2002, and came into force between 28 June and 26 September 2002, by operation of the International Criminal Court Act [No. 41 of] 2002 of the Parliament of Australia.

However, Article 5.2 of the Rome Statute states that “The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations”.

The Assembly of States Parties of the Rome Statute adopted the following definition at the Review Conference which took place from 31 May to 11 June 2010 in Kampala, Uganda.

Article.8 bis is now part of the Statute. It reads as follows:

1. “For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.
2. For the purpose of paragraph 1, “act of aggression” means 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. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, 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.”

The Court may exercise jurisdiction over the crime of aggression, however, the relative amendments to the Statute stipulate additional conditions. The amendments must have been ratified or accepted by at least thirty States Parties, and in addition States Parties must “activate” the Court’s jurisdiction through an additional decision to be taken on or after 1 January 2017 by a two thirds majority. On 26 June 2016 Palestine ratified the amendments to the Rome Statute on the crime of aggression.

By this ratification, Palestine deposited the thirtieth instrument which opened the possibility of giving jurisdiction to the International Criminal Court to try the crime of aggression.

Two points should be made:

1) the provision of Art. 8 bis cannot be enforced retroactively, and

2) more importantly, it is clear that the United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974 is held in great consideration in defining an act of aggression.

The preceding information about the increased jurisdiction of the International Criminal Court is given for completeness.

In fact, by the International Criminal Court (Consequential Amendments) Act [No. 42 of] 2002, an Act to amend the Criminal Code Act 1995 and certain other Acts in consequence of the enactment of the International Criminal Court Act [No. 41 of] 2002, and for other purposes, the provisions of Arts. 6 – Genocide, 7 – Crimes against humanity, 8 – War crimes, of the Rome Statute have been ‘imported’ into the Australian Criminal Code 1995 by the addition to Chapter 8 on Offences against humanity and related offences of Division 268 – Genocide, crimes against humanity, war crimes and crimes against the administration of the justice of the International Criminal Court.

The Division contains nine Subdivisions, from A to J.

There is a kind of ‘parallel jurisdiction’, if that is the proper expression. That was tested in at least one case, promoted by a small, activist Sydney organisation.

Conscious of the importance of exhausting the domestic jurisdiction, had it been necessary to go to the International Criminal Court, by respecting ad litteram Art. 17 of the Rome Statute, on 16 March 2012 the organisation submitted a complaint to the Australian Federal Police against former Prime Minister John Winston Howard, “for his decision to send Australian Forces to invade and wage war against Iraq”, and accusing him of violation of the provisions of Division 268, as ‘receiving’ Arts. 6, 7 and 8 of the Rome Statute. The complaint, supported by twenty six annexes, had been prepared by a distinguished Sydney Senior Counsel. On 3 May 2012 the A.F.P. communicated that “the information … supplied [did] not disclose an offence against Division 268”. Once re-examined by another Senior Counsel, and found already sufficiently well argued and documented, the complaint was submitted on 9 May 2013 to the Commonwealth Director of Public Prosecutions, who on 18 June 2013 informed the complainant that he had “considered … [and decided] “not ]to] initiate a prosecution … based on the material [submitted] because the “material [was] not a brief of evidence, containing admissible evidence against Mr. Howard”.

On 3 September 2013 the complaint was e-mailed to the International Criminal Court and a hard copy left Sydney on 4 September 2013, by air mail letter registered, number RP007553525AU, with return receipt. The receipt was not returned. Attempts at communicating with the Information and Evidence Unit of the I.C.C. Office of the Prosecutor in The Hague produced no reply.

Of course, any renewed attempt to prosecute in Australia would require consent of the Attorney-General.

Others have been more successful with the Court: on 19 May 2014 a lady from Western Australia was able to lodge and have accepted for consideration by the Prosecutor a complaint against Prime Minister Abbott and some of his ministers responsible for the execrable ill-treatment of intended refugees who had arrived to Australia by boat to seek refuge, presumably under Art. 14 of the Universal Declaration of Human Rights, without satisfying the bureaucratic process. They have been languishing: men, women and children – some of them for more than three years – in some hellish places hired by Australia in Nauru and Papua New Guinea. The scandal has been known for years at the United Nations.

On 22 October 2014 Andrew Wilkie, the Independent Member of Parliament from Tasmania, assisted by a lawyer, wrote to the I.C.C. Prosecutor, inviting her to initiate a proprio motu an investigation of the activity of Prime Minister Abbott and all the nineteen members of his Cabinet, some assistant ministers and two generals involved at the ‘militarised’ border in the same ill-treatment of would be refugees-by-boat.

On 8 July 2015 the Refugee Action Collective of Victoria filed a communiqué for the Office of the  I.C.C. Prosecutor. It contains a notice of  intention to request the I.C.C. to investigate and act against the Prime Minister of Australia, the past and present Immigration and Border Protection ministers and the Attorney-General.

This submission charged violation of international law, of the 1951 U.N. Convention and Protocol Relating to the Status of Refugees, of the International Covenant on Civil and Political Rights, the Convention against Torture, and the Convention on the Rights of the Child, and of Art. 7 of the I.C.C. Statute.

The submission also makes reference to Art. 14 of the 1948 Universal Declaration of Human Rights, as proclaiming: “Everyone has the right to seek and to enjoy in other countries asylum from persecution”. It points out how “The Australian government also ignores the standards of human rights as set in the Rome Statute, the International Covenant on Civil and Political Rights, the Convention against Torture, and the Convention on the Rights of the Child”.

The submission, clearly articulated along eleven points, and well documented, charges and, with a view to aiding the investigation and possible prosecution, relies heavily on the concept of judicial notice. Judicial Notice is defined by the Australian Law Reform Commission Report 102, February 2006, Section 144, as: “common knowledge [which] covers facts, both local and general knowledge, which are so widely recognized that requiring proof of them would be a superfluous exercise.” And further “while matters of common knowledge falling within s. 144 need not be proved formally, parties to a proceeding are not precluded from leading formal evidence of such matters”.

The complainants add for good measure that they “are aware that the [I.C.C.] has the choice of either a narrow or broad interpretation of the concept of judicial notice, and they urge the court to apply the latter, given that much of what is alleged is common knowledge in Australia and is much resented by both humane and expert opinions”.

Refugee Action Collective charged that the Australian governments have repeatedly brushed off a number of extremely damning reports – both domestic and international – which emphasise the brutality of the offshore detention system. These include: the 2015 ‘Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment of punishment’, submitted to the U.N.’s Human Rights Council by Juan E. Méndez, the 2015 ‘Review into recent allegations relating to the conditions and circumstances at the Regional Processing Centre in Nauru’ – otherwise known as the ‘Moss Report’ – commissioned by former Minister for Immigration and Border Protection, and the 2014 report ‘Forgotten Children: National Inquiry into Children in Immigration Detention 2010’ by Professor Gillian Triggs, President of the Australian Human Rights Commission. Such reports have amply condemned the Australian Government for its cruel and unlawful detention of children, women and men who have committed no crime.

Tightly written and cogently argued, the submission is signed by a distinguished retired academic and countersigned by dozens of organisations.

It could not be ignored, and might – just might – proceed. Success can only be hoped, but habent sua sidera lites = disputes have their own stars.