Chilcot offers truth without reconciliation or justice

James Sweeney

Professor, Lancaster Law School, Lancaster University

We now have the long-awaited report of the Iraq Inquiry, better known as the Chilcot Inquiry. We now know what was supposed true for a long time: that intelligence on the existence of weapons of mass destruction was presented with “a certainty that was not justified”, and led to the 2003 intervention in Iraq when peaceful options for Iraqi disarmament remained; that the armed forces were inadequately equipped; and that planning for the post-invasion phase was “wholly inadequate”.

But although we clearly know more “truth” than we did, the whole process bears little resemblance to a fully-fledged “truth commission” and, as Chilcot himself has said, it was not designed to examine legal responsibility. After notorious events, there are often heated discussions over whether to prioritise justice or a healing truth. But the Chilcot Report provides little of either.

Truth

Learning the truth about past injustice can provide closure and promote reconciliation, but experience shows how difficult achieving this can be.

After the fall of apartheid in South Africa, the country embarked upon a process of “truth and reconciliation”. Established in 1995, the South African Truth and Reconciliation Commission (SATRC) is probably the most famous “truth commission”, but there have been many more. So many, in fact, that academics and NGOs have developed general expectations in relation to how they operate.

According to a report from the International Centre for Transitional Justice, a truth commission is expected to have three key objectives: to establish the facts about “violent events that remain disputed or denied”; to “protect, acknowledge, and empower victims and survivors”; and to inform future policy and encourage institutional change. This will often include some form of reconciliation.

While Chilcot shares the first objective, it falls short on the second, which virtually rules out the reconciliation element of the third. Clearly, the Inquiry was never designed to be a process of truth and reconciliation, but surely this has been a missed opportunity.

It is also debatable how usable Chilcot’s “truth” actually is: at around 2.6m words it’s hard to see who (other than academics) is going to read the whole thing. This undermines its potential to influence future policy.

On the issue of victims, the Inquiry rightly met with veterans of the conflict and the families of those who died or are missing, and Sir John Chilcot has spoken thoughtfully about their “high expectations”. But while those to be criticised by the report have had months to prepare a response, the families had a mere three hours of advanced access to the executive summary. Effective historical accounting and respect for victims is about the process, as well as the findings.

Moreover, although the report has found that the people of Iraq “suffered greatly”, the inquiry did not engage with the Iraqi people directly (except via some political leaders, some of whom were seen in private meetings).

While seeking reconciliation with the remnants of Saddam Hussein’s Ba'athist regime itself would not have been appropriate, working with the divided peoples of Iraq may have yielded significant long-term advantages – especially in the light of the ongoing sectarian difficulties that have been unleashed there.

It is also worth returning to the comparison with the South African experience. Beginning with its first hearings and investigations in 1996, the Truth and Reconciliation Commission investigated human rights abuses from 1960 to 1994, heard the testimonies of 21,000 victims (including 2,000 who spoke at public hearings), and concluded its work when the sixth and seventh volumes of its final report were published in 2003.

The Chilcot Inquiry considered the period from summer 2001 to the end of July 2009, heard from around 150 witnesses, and has, like the South African commission, taken around seven years to complete its work. They were very different processes but, given the difference in scale, the drawn-out nature of the Chilcot Inquiry looks even stranger.

To give some context, some of the delay with Chilcot has been caused by the so-called “Maxwellisation” process, which allowed those who are to be criticised some chance to respond before the report was published. Patricia Hayner’s excellent book, Unspeakable Truths, gives a warts-and-all view of the South African process, and points out that the publication of its final report was delayed when F. W. de Klerk, the country’s last white president, successfully sued to block the report from naming him, albeit temporarily. Even the African National Congress attempted to prevent publication with what Hayner called a “clumsy, last-minute court challenge”.

So perhaps the Maxwellisation process has helped Chilcot to avoid such problems, but it does seem to have taken a painfully long time.

Justice

The difficulty of the truth-versus-justice dilemma can be overstated. The balance of opinion among scholars and thinkers in this field is that truth and justice are not incompatible, and that the real problem is a question of timing, or “sequencing” as it is known: the importance of running truth-seeking mechanisms and trials in sequence. In fact, a 2010 studyfound that truth commissions conducted in isolation actually have a negative impact on human rights and democracy.

The South African Truth and Reconciliation Commission was unusual for being able to grant legal amnesties in return for testimony, but even its final report specifically named around 300 people that should face trial – but for dubious political reasons the list was largely ignored.

Desmond Tutu, one of the architects of South Africa’s Truth and Reconciliation process. EPA

There are clear legal reasons why those who see Tony Blair as a “war criminal” were always going to be disappointed, but the fact that the Chilcot Inquiry is totally disconnected from the question of possible prosecutions is nonetheless a horrendous blind spot.

War crimes are, essentially, “grave breaches” of the Geneva Conventions of 1949. We are obliged to prosecute such breaches in domestic law, but under certain circumstances someone could face trial at the International Criminal Court (ICC), for example where a state with jurisdiction over the case is unable or unwilling to investigate or prosecute it.

In fact, the UK has investigated allegations that its own soldiers committed war crimes in Iraq – but even if charges are brought, it would be a stretch to argue that Tony Blair had “command responsibility” for the crimes in question.

In fact, what Blair’s critics most want is a full trial for the the decision to invade Iraq, which they see as a crime of aggression. But leaving aside questions of actual culpability, making that charge stick would be extremely difficult.

Aggression was not included as a crime in the UK’s International Criminal Court Act 2001 because a detailed definition was absent from the original 1998 agreement on the ICC. In the 2006 case of Jones v. DPP, it was found that even if the crime existed in customary international law, it is not a crime in the domestic criminal law of England and Wales.

Furthermore, an agreement on inserting a detailed crime of aggression into the agreement on the ICC was only reached in 2010, and the court will only be able to look at such crimes committed from 2017 onwards. It will have no retrospective effect, and therefore simply cannot cover the 2003 invasion. It’s difficult to see how any amendments to the 2001 UK act could be any different. The same goes even for legislation specifically aimed at Blair’s responsibility for Iraq.

Ultimately, the Chilot Inquiry has been an expensive investigation into a decidedly limited range of issues, and it has delivered precious little in terms of either justice or healing truth. Unless we learn that there is more to truth-telling than big public inquiries, and that respect for victims is key, the UK will remain ill-equipped to deal with its often chequered past.

https://theconversation.com/chilcot-offers-truth-without-reconciliation-or-justice-59640