Like so many of us for whom the anti-apartheid struggle was a political awakening in the 1980s, I revere Bishop Desmond Tutu. A voice of humanity, moderation and forgiveness when there was every chance that South Africa’s transition could have gone very differently, Tutu combines unsurpassed moral leadership with no political ambition.
It was therefore with great interest I awoke on Sunday to Tutu’s call for Tony Blair to face the International Criminal Court on charges for aggression resulting from the 2003 Iraq invasion. Tutu goes on to question why Zimbabwe’s Robert Mugabe should go to the ICC whilst Blair cashes in on the international lecture circuit.
The first answer is that though the Rome Statute which created the Court gave it power to try aggression, the ICC only gained jurisdiction when the states which are parties to the Court defined aggression – which occurred in 2010. This does not have retroactive effect, so as a matter of law, the ICC cannot try Blair for aggression against Iraq in 2003.
However, aggression is an international crime that is part of “customary international law” – international law that is born of the manner in which states have interacted over hundreds of years, applying to all states as members of the international system. Custom was the basis of Nazi prosecutions at Nuremburg, where aggression was quaintly described as “crimes against peace” – indeed, Nuremburg described aggression as “the supreme international crime”, more serious even than Genocide. As customary international law, aggression can be tried before British courts.
The second answer is that Blair enjoys personal immunity from prosecution for as long as he has an international job that requires him to have immunity to conduct his role. Currently, his immunity comes from his role as the Quartet’s Middle East Peace envoy – a job he has held since the day of his resignation as Prime Minister in 2007.
I am not accusing Blair of taking this role to avoid the possibility of prosecution – although he seems entirely unsuited to it, given the perception of pro-Israeli bias and his record in Iraq. It is however awfully convenient that this is the legal implication. It is also noteworthy that Blair seems to spend a great deal more time making paid speeches than he does bringing Israeli and Palestinians together to talk peace.
Tutu’s broader criticism of the ICC focussing on African leaders is, however, misplaced. The ICC has complementary jurisdiction – in other words, the only cases it will try are those in which the state where the cases originated are “unwilling or unable” to try these cases at home. The judgement of whether a State is “unwilling or unable” lies with the ICC, meaning that states can’t use the ICC to shield suspects at home through sham trials.
Nonetheless, the result is those states with modern, independent judiciaries are unlikely to send cases to The Hague, whereas transitional states are unlikely to be able conduct these long and complex investigations and, where appropriate, trials. Ignoring where atrocities are currently taking place – largely in the third world – the ICC’s design makes it disproportionately likely that its caseload will come from third world states.
So what of Tutu’s challenge? Rule of law and equality before the law are two cornerstones of our society: as a former PM Blair is not exempt, and he should be accountable for his actions in office.
Blair can and should be stripped of his moribund role in the Middle East, and with it, his personal immunity from prosecution. He can – and should – then be tried for aggression before a British court. As Blair keeps insisting that the 2003 Iraq invasion was legal, presumably he would welcome prosecution in order to clear his name. His failure to resign from the Quartet or waive his immunity tells a different story.
* Toby Fenwick is a member of Putney LibDems, and is a Research Associate with CentreForum where he has worked on CentreForum’s bank share distribution proposal, and wrote the March 2012 CentreForum paper "Dropping the Bomb: A Post Trident future".