The problem with pursuing politicians through the courts, argues Con Coughlin, is that it may change their decision-making process for the worse
It's time to stop hounding Tony Blair through the UK courts - it is time to move on from the 2003 invasion of Iraq
The failure of the legal challenge mounted by an Iraqi general this week to bring Tony Blair to trial over the 2003 invasion of Iraq provides yet another example of how anti-war activists are trying to use Britain’s judicial system to achieve their aims.
There have been numerous government-sponsored inquiries held since Mr Blair took his controversial decision to support US president George W Bush in launching military action to overthrow Saddam Hussein.
Of these the most thorough was the seven-year inquiry conducted by former civil servant Sir John Chilcot, which reached the damning conclusion when the 2.3 million word report was published last year that the war was unnecessary, and the legal basis upon which it was conducted questionable.
But Sir John, even though highly critical of the way Mr Blair conducted himself in the build-up to the conflict, conceded that Mr Blair had acted in what he genuinely believed was Britain’s national interest at the time.
These findings, though, have not been sufficient for Britain’s vociferous anti-war lobby, which has continued with its campaign to bring the former Labour prime minister to trial.
The latest case was brought by Iraqi general Abdulwaheed Al Rabbat, the former chief-of-staff of the Iraq army, who is now living in exile in Oman. Mr Rabbat accused Mr Blair, former foreign secretary Jack Straw and former attorney-general Lord Goldsmith – who provided the government with the legal justification for invading Iraq – of “crimes of aggression.”
Mr Rabbat’s legal team was headed by Michael Mansfield, QC, one of Britain’s leading human rights lawyers, who argued that the laws used to put the Nazis on trial at Nuremberg following the Second World War should also be applied against Mr Blair.
This argument made little headway with chief justice Lord Thomas, who ruled that these laws do not apply to the courts of England and Wales. “There is no crime of aggression under UK domestic law and there is no prospect of the supreme court reversing that decision,” Lord Thomas concluded in his judgement dismissing the case.
It remains to be seen whether anti-war campaigners will seek to launch another legal action against Mr Blair – the International Criminal Court in The Hague has already said it has no jurisdiction on the issue. But Lord Falconer, a close friend of Mr Blair and a former lord chancellor, says the case raises an important issue, as to whether politicians should be allowed to make difficult decisions in the national interest without fear of facing prosecution.
Another recent case where anti-war campaigners have sought to use British courts to challenge government policy was the case brought by the Campaign Against the Arms Trade to force the ministry of defence to stop selling arms to Saudi Arabia.
The case was brought on the basis that arms supplied by the UK to Saudi were responsible for killing innocent civilians in Yemen, where the Saudi-led coalition is fighting attempts by Iranian-backed Houthi rebels to overthrow the country’s democratically-elected government.
But despite the case becoming a cause celebre for anti-war activists in London, the High Court last month rejected the claim, ruling that Britain’s multi-billion arms sales to the Saudis were lawful.
A detailed analysis of this judgement has now been undertaken by Professor Christopher Forsyth on behalf of Policy Exchange, which in my view is Britain’s most influential and effective think tank, particularly its ground-breaking research into the impact of litigation on modern conflict, which has won it many plaudits from ministers and military officers alike.
Prof. Forsyth, a Cambridge University academic, says that the evidence presented by CAAT was of variable quality and mainly came from NGOs and other bodies working in Yemen. Even so, he expresses concern about the negative impact cases such as this, and the ongoing legal pursuit of Mr Blair, could have on the ability of British politicians to make important decision on national security issues.
The problem with the constant pursuit of British politicians through the courts, Prof Forsyth argues, is that it “may have the effect of developing defensive decision-makers.". This could result in ministers and civil servants in future taking what he describes as “judge-proof decisions.”
No one wants to see politicians breaking the law in Britain, or anywhere else for that matter. But at the same time, they must have the confidence to make tough decisions on national security issues. And the concern about the constant stream of legal cases brought by anti-war activists against ministers in London is that it will make them more inhibited about decisions relating to military action in future, as well as providing continued support for regional allies.
The British government’s reluctance, for example, to commit ground forces in the recent conflicts in Libya and Syria can be seen as a direct response to the sustained criticism Mr Blair has attracted over the Iraq conflict.
These days, when considering national security options, modern-day British politicians seem reluctant to assume a leading role for fear that they will end up being hounded through the British courts. Rather than displaying the leadership qualities that saw Britain play a prominent role in the recent conflicts in Iraq and Afghanistan, they are more inclined to take a back seat and leave the leadership role to others, an attitude that will only serve to erode Britain’s standing on the world stage.
Con Coughlin is the Daily Telegraph’s defence and foreign affairs editor