The Report
of the Iraq Inquiry
INDICT was
established in 1996.230
Although it
was UK based, the non‑governmental
organisation
(NGO) operated with funding from the US Congress granted under
the
auspices of
the Iraq Liberation Act 1998. INDICT advocated the establishment of
an
ad hoc
International Criminal Tribunal to try Saddam Hussein and leading
members
of his
regime on charges of genocide and torture, war crimes and other
crimes against
humanity.
Founder members included a number of notable Iraqi exiles
including
Dr Ahmed Chalabi
and Mr Hamid Al Bagali (who was later appointed Iraqi
Ambassador
to the
UN), and Ms Clwyd.
INDICT
focused its attention on Saddam Hussein and a dozen senior members
of the
Iraqi
regime including Mr Tariq Aziz, the Deputy Prime
Minister.231
Ms Clwyd
wrote to Lord Williams of Mostyn, the Attorney General, in
September 2000,
enclosing a
copy of Leading Counsel’s opinion which advised that there was “a
powerful
body of
evidence that Saddam Hussein and Tariq Aziz were party to, and
criminally
responsible
for … detentions” and that there was “direct evidence that
implicates Saddam
Hussein and
Tariq Aziz in issuing threats to detain the
hostages”.232
Counsel
advised that, subject to the consent of the Attorney General being
obtained,
both Saddam
Hussein and Tariq Aziz could be charged in the UK with the offence
of
Hostage
Taking, contrary to section 1 of the Taking of Hostages Act 1982.
That was an
offence
prosecutable in the UK whether committed “in the United Kingdom or
elsewhere”
regardless
of the nationality of the offender.
Lord Williams
wrote to Ms Clwyd on 22 March 2001 notifying her of his
refusal to grant his
consent to
the prosecution.233
He
explained the basis of his decision as:
“I have
concluded in respect of Saddam Hussein that there is at present no
realistic
prospect of
a conviction. There are two elements to my assessment. I
have
concluded
that Saddam Hussein, as Head of State of Iraq, would presently
be
entitled to
assert immunity from criminal prosecution. Moreover, I am not
satisfied
in any
event that the evidence as submitted to me is sufficient to provide
a realistic
prospect of
a conviction.
“Whether
the court would uphold any claim of immunity that may be asserted
by
Tariq Aziz
is in my judgement less clear. However, leaving that issue aside, I
am
not
satisfied that the evidence at present submitted by INDICT provides
a realistic
prospect of
conviction for the offences which appear to me to fall to be
considered.”
In October
2002, INDICT submitted further advice from Leading Counsel
to
Lord Goldsmith,
the Attorney General, again seeking consent to the prosecution
of
Saddam
Hussein, Tariq Aziz and on this occasion two others, Mr Ali
Hassan Al‑Majid
(who was
said to have been appointed the Governor of Kuwait) and
Mr Taha Ramadan,
230
Public
hearing Clwyd, 3 February 2010, pages 11‑12.
231
Public
hearing Clwyd, 3 February 2010, page 13.
232
Letter
Clwyd to Williams, 26 September 2000, [untitled], attaching Note
Montgomery, 11 July 2000,
‘In the
Matter of Iraqi Crimes Against Humanity’.
233
Letter
Williams to Clwyd, 22 March 2001, ‘Request for a
Fiat’.
120