Yearbook of International Humanitarian Law — Volume 19, 2016 Correspondents’ Reports

YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW — VOLUME 19, 2016 CORRESPONDENTS’ REPORTS 1 UNITED KINGDOM Contents Government Inquiry — Involvement of United Kingdom in Iraq ............................................. 1! Early Day Motion — Ministerial Corrections on Saudi Arabia and War Crimes ..................... 5! Early Day Motion — Government’s Response to the Second Report of Session 2015-16 from the Joint Committee on Human Rights, the Government’s Policy on the Use of Drones for Targeted Killing ......................................................................................................................... 5! Early Day Motion — Use of UK Airbases for US Airstrikes in Libya ..................................... 6! Early Day Motion — UN Convention on the Prevention and Punishment of Genocide .......... 6! Early Day Motion — Calls for Reports of Civilian Casualties in Military Conflicts ................ 7! Early Day Motion — Contamination of War Zones .................................................................. 7! Early Day Motion — Use of Schools and Hospitals in Conflict Areas ..................................... 7! Early Day Motion — Cluster Munitions Use ............................................................................ 8! Written Questions — International Law .................................................................................... 8! Written Questions — Armed Forces: Ammunition ................................................................... 9! Written Questions — Turkey: Armed Conflict ......................................................................... 9! Written Questions — Occupied Status of the Gaza Strip and East Jerusalem ........................ 10! Government Inquiry — Involvement of United Kingdom in Iraq ! Iraq War Inquiry The Report of the Inquiry, chaired by Sir John Chilcot, was published in July 2016 after a long delay. The questions before the Inquiry were (i) whether it was right and necessary for the UK to invade Iraq in March 2003, and (ii) whether the UK could – and should – have been better prepared for what followed.2 In his public statement made immediately prior to publication of the Report, Sir John summarised the conclusions of the Inquiry as follows3: • The UK chose to join the invasion of Iraq before the peaceful options for disarmament had been exhausted. Military action at that time was not a last resort. • The judgements about the severity of the threat posed by Iraq’s weapons of mass destruction – WMD – were presented with a certainty that was not justified. • Despite explicit warnings, the consequences of the invasion were underestimated. The planning and preparations for Iraq after Saddam Hussein were wholly inadequate. • The Government failed to achieve its stated objectives.4 The Executive Summary sets out ‘lessons on collective Ministerial decision- making, where the principles identified are enduring ones’ and ‘other lessons which have general application’. In relation to the decision to go to war, the Inquiry set out the following lessons: 1 Dr Caroline Kittelmann (nee Harvey), Solicitor of the Supreme Court of England and Wales. 2 Sir John Chilcot, ‘Public Statement’, <http://www.iraqinquiry.org.uk/media/247010/2016-09-06-sir-john- chilcots-public-statement.pdf>. 3 The key findings are set out at paragraphs 799-824 of the Executive Summary. 4 Sir John Chilcot, ‘Public Statement’, <http://www.iraqinquiry.org.uk/media/247010/2016-09-06-sir-john- chilcots-public-statement.pdf>, 1-2. Yearbook of International Humanitarian Law — Volume 19, 2016, Correspondents’ Reports © 2017 T.M.C. Asser Press and the author — www.asserpress.nl 1 YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW — VOLUME 19, 2016 CORRESPONDENTS’ REPORTS • Any future Government could better manage public expectations with regard to a major military operation by guarding ‘against overstating what military action might achieve and against any tendency to play down the risks’.5 ‘The Government should not commit to a firm political objective before it is clear that it can be achieved’ with ‘regular reassessment’ essential.6 • Where an issue goes before the United Nations Security Council, ‘the UK Government cannot expect to retain control of how it is to be discussed and eventually decided, unless it is able to work with the interests and agendas of other Member States.’7 • A diplomatic timetable should not dictate a military timetable. ‘If a strategy of coercive diplomacy is being pursued, forces should be deployed in such a way that the threat of action can be increased or decreased according to the diplomatic situation and the policy can be sustained for as long as necessary.’8 • With regard to the issue of influencing the United States, this was a ‘constant preoccupation’ of the Government9 but, despite the US and UK being close allies, ‘the relationship between the two is unequal’10 and influence should not be an objective in itself, but rather the ‘exercise of influence is a means to an end.’11 In relation to weapons of mass destruction, the Inquiry set out the following lessons: • It was ‘a mistake not to see the risk of combining in the September dossier the JIC’s [Joint Intelligence Committee’s] assessment of intelligence and other evidence with the interpretation and presentation of the evidence in order to make the case for policy action.’12 ‘The nature of the two functions is fundamentally different. As can be seen from the JIC Assessments quoted in, and published with, this report, they contain careful language intended to ensure that no more weight is put on the evidence than it can bear. Organising the evidence in order to present an argument in the language of Ministerial statements produces a quite different type of document.’13 • The perception that the evidence was massaged in order to make the case for action ‘has produced a damaging legacy, including undermining trust and confidence in Government statements, particularly those which rely on intelligence which cannot be independently verified.’14 • Specific lessons for any future ‘explicit and public use of material from JIC Assessments to underpin policy decisions’ would include: o ‘The need for clear separation of the responsibility for analysis and assessment of intelligence from the responsibility for making the argument for a policy. o The importance of precision in describing the position. […] Constant use of the term “weapons of mass destruction” without further clarification obscured 5 Iraq Inquiry, The Report of the Iraq Inquiry (2016), <http://www.iraqinquiry.org.uk/media/247921/the-report- of-the-iraq-inquiry_executive-summary.pdf> (‘the Executive Summary’), [827]. 6 Ibid [828]. 7 Ibid [829]. 8 Ibid [830]. 9 Ibid [831]. 10 Ibid [833]. 11 Ibid [834]. 12 Ibid [836]. 13 Ibid [837]. 14 Ibid [838]. Yearbook of International Humanitarian Law — Volume 19, 2016, Correspondents’ Reports © 2017 T.M.C. Asser Press and the author — www.asserpress.nl 2 YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW — VOLUME 19, 2016 CORRESPONDENTS’ REPORTS the differences between the potential impact of nuclear, biological and chemical weapons and the ability to deliver them effectively. For example, there would be a considerable difference between the effects of an artillery shell filled with mustard gas, which is a battlefield weapon, and a long-range ballistic missile with a chemical or biological warhead, which is a weapon of terror. o The need to identify and accurately describe the confidence and robustness of the evidence base. There may be evidence which is “authoritative” or which puts an issue “beyond doubt”; but there are unlikely to be many circumstances when those descriptions could properly be applied to inferential judgements relying on intelligence. o The need to be explicit about the likelihood of events. The possibility of Iraq producing and using an improvised nuclear device was, rightly, omitted from the dossier. But the claim that Iraq could build a nuclear weapon within one to two years if it obtained fissile material and other essential components from foreign sources was included without addressing how feasible and likely that would be. In addition, the Executive Summary gave prominence to the International Institute of Strategic Studies suggestion that Iraq would be able to assemble nuclear weapons within months if it could obtain fissile material, without reference to the material in the main text of the dossier which made clear that the UK took a very different view. o The need to be scrupulous in discriminating between facts and knowledge on the one hand and opinion, judgement or belief on the other. o The need for vigilance to avoid unwittingly crossing the line from supposition to certainty, including by constant repetition of received wisdom.’15 The Inquiry also noted that ‘[w]hen assessed intelligence is explicitly and publicly used to support a policy decision, there would be benefit in subjecting that assessment and the underpinning intelligence to subsequent scrutiny, by a suitable, independent body, such as the Intelligence and Security Committee, with a view to identifying lessons for the future.’16 In relation to the invasion of Iraq, the Inquiry noted inter alia the following lessons: • ‘The difficulty and complexity of successfully delivering distinct strategic messages to each of the audiences a government needs to reach should not be underestimated. For any future military operations, arrangements tailored to meet the circumstances of each operation need to be put in place in both London

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