The
Long Road to The Hague: Prosecuting Former Prime Minister
Tony Blair -- Part I
02 September 2010By Lesley Docksey
Ex-Prime Minister and post-Downing Street millionaire
Tony Blair, to celebrate the publication of his book A
Journey, is holding a ‘signing’ session at Waterstones,
Piccadilly on 8 September. That this man, responsible
for taking us into an illegal war, playing his part in
the ruination of an ancient country because he
‘believed he was right’, should advertise himself in
this way has caused outrage. Time, I think, to look at
where we, and Blair, actually stand in terms of what
we can and cannot do to call him to account.
What hope for international law?
We have spent years constructing that body of
treaties, statutes and conventions known as
international law only to ignore it when it is most
needed. How often has any state or rather, how many
powerful Western states have been brought to account
for breaching international law? And how many exempt
themselves from the laws while insisting others abide
by them?
The world’s record at upholding its own laws is poor.
The United Nations passes Resolutions where states
have breached international law, demanding compliance.
It imposes sanctions, hoping to force compliance. But
beyond that what is done, except to threaten
belligerence? What other routes are available?
When the UN was set up, the International Court of
Justice (ICJ) also came into being. It can settle
disputes between states and it can give advisory
opinions on legal matters when asked by recognised
bodies or coalitions of such. A good example of the
latter is the opinion they delivered in 1996 for the
World Court Project on the legality of the use of
nuclear weapons. In neither case does this really
result in accountability.
Of the permanent Security Council members only the
United Kingdom has made a declaration accepting the
jurisdiction of the Court. Nevertheless, they all have
judges sitting on the Court’s bench, and one of them,
Sir Christopher Greenwood, aided the Attorney General
Lord Goldsmith with his legal opinion okaying the Iraq
invasion in March 2003.
But - the UN Charter authorises the Security Council
to enforce the Court’s rulings. Security Council
members can thus veto any judgement that interferes
with the political agendas of those states or their
allies. Political interests always seem to override
the rule of law.
Why is it necessary to get someone like Tony Blair
into court? It is the only way to demonstrate to those
in power that no one is above international law, and
we cannot, regardless of what statements we issue or
pieces of paper we sign (or in America’s case, ‘unsign’)
simply decide we are exempt in every case where it
could be proved we are guilty. To get just one of the
West’s leaders into court and thereby create a legal
precedent, will make all the world’s leaders sit up
and take note.
Prosecuting Blair
In 1998, the Rome Statute of the International
Criminal Court (ICC) was adopted, opening the way to
establishing the ICC. When the Court was proposed, its
importance was such that 60 rather than the usual 30
ratifications were required. Considering that the
Convention on Cluster Munitions took four years to
reach 30 ratifications allowing it to pass into law,
support for the ICC was obviously keen in that the
Rome Statute gained twice the number of ratifications
in the same amount of time. Clearly, many countries
felt the need for such a Court, but of the Security
Council’s big 5, only the UK and France are fully
signed up.
Following the illegal invasion of Iraq in 2003, many
British campaigners attempted to get Tony Blair into
court. Encouraged by Chris Coverdale of Legal Action
Against War, (LAAW), we approached our county police
forces and asked them to act. The reasoning behind
this was that any British citizen, believing that a
crime has taken place, has the duty to inform the
police and ask them to investigate. In this case we
used the International Criminal Court Act 2001, which
Blair’s own government had incorporated into British
domestic law.
In November 2003 Peacerights held a Legal Inquiry to
examine aspects of the invasion and occupation of
Iraq, and their panel of international lawyers then
compiled a full report on the evidence from eye and
expert witnesses, together with their legal opinion
that war crimes had been committed in Iraq. This was
presented to the Attorney General and the ICC, which
was unable to act.
The ICC cannot consider a prosecution unless it can be
proved that efforts to prosecute in the home country
have failed. To do that one needs to demonstrate why.
And we didn’t know why, only, unofficially, that the
Crown Prosecution Service (CPS) had told the
Metropolitan Police Force (the Met) that no
prosecution would be allowed. And by ‘we’, I do not
mean just campaigners. The lawyers also did not know
and could not find out - which is where the Dorset
Police came in.
In September 2003 I wrote a letter to Dorset ’s Chief
Constable, requesting that Dorset Police investigate
Mr Blair and members of his government for war crimes
with a view to prosecuting them under the ICC Act
2001. Unlike Chris Coverdale who, in the template
letter he sent round to campaigners, was accusing
Blair of genocide, I decided to go for war crimes and
crimes against humanity, these being much easier to
prove under the definitions of the Act (cluster
munitions and depleted uranium weapons cause
disproportionate harm to civilians, constituting war
crimes). Also, rather than swamping Dorset Police with
what I thought was evidence, I simply sent them a copy
of the relevant part of the Act, knowing full well
that it would have been unread by the majority of the
British police.
I received a letter from the Chief Constable saying
that the matter was under consideration. That in
itself was a major difference between Dorset and other
UK police forces. The difficulty was that any
complaint of illegal behaviour by members of the
government comes under the jurisdiction of the Met, so
any requests to investigate with a view to prosecution
go through them to the CPS, the body that decides
which public prosecutions go ahead. All other police
forces simply refused any such requests made of them.
It took weeks, plus letters and phone calls to the Met
from the Chief Inspector who was trying to further my
request, before the Met informed him that the CPS had
refused permission for a prosecution some months back.
This was in answer to LAAW’s application, the CPS
having instructed the Met at the end of November 2003,
but the Met not informing LAAW until sometime in
January 2004. My local force must have felt both
insulted and angry at being treated in such an offhand
manner by the Met, and this may explain why I ended up
achieving more than I hoped.
In late March I finally met the Chief Inspector who
had with him a copy of the CPS letter, detailing why
the prosecution was refused. Forbidden to show me the
letter, give me a copy or read it out to me, he
managed in one short meeting to give enough
information about the CPS reasons for refusal to allow
us to prove we could not go further in this country
(one reason being that ‘the ICC Act was not detailed
enough to allow for prosecution’).
I informed Professor Nick Grief, from Peacerights’
Legal Inquiry panel, Phil Shiner (Public Interest
Lawyers) took a witness statement from me, and that
joined the Peacerights report in The Hague . Where it
sits, gathering dust.
Well, you didn’t think it was going to be that easy,
did you?
The ICC and the Crime of Aggression
The crime of aggression (then known as ‘crimes against
peace’) was said at Nuremburg to be the supreme
international crime, and when the ICC was brought into
being, it was clear that many saw the crime of
aggression as integral to the crimes that would come
under its jurisdiction. So the most pressing subject
for discussion at the Rome Statute Review Conference
that took place earlier this year was the defining of
this crime and how a prosecution would be brought at
the Court (the so-called ‘trigger’ mechanism).
One of the main blocks to progress is that the
decision allowing a prosecution to take place lies
with the Security Council, placing it under the
control of politicians rather than judiciary. Former
judge Richard Goldstone, speaking on the BBC World
Service, said one couldn’t put the crime of aggression
into the hands of the ICC. It would be very
‘political’ to make judgements on the decision to go
to war. But the ICC prosecution would not be for the
decision to go to war. That decision is always
political. Even in civil wars, the propaganda that
drives neighbour to attack neighbour is mostly
politically driven. It is the act of waging war that
is the crime to be prosecuted, and the decision is
only part of that act. While the ‘trigger’ allowing a
prosecution to take place remains under the control of
the Security Council it is impossible for any of the
permanent members of the Council to be prosecuted for
a crime they show an unhealthy willingness to commit.
Indeed, three of them are able to control an
international body they do not support.
A letter I received from the Foreign Office states “A
provision on aggression that does not make reference
to the Security Council would also be bad for the
Court. We want to avoid the ICC being politicised… The
Prosecutor needs to know that, before he embarks on an
investigation, he has behind him the political support
of the international community and that can only be
expressed through the Security Council.” That
political support would be more honestly and
democratically expressed through the General Assembly,
where all nations can have their say. And the best way
to avoid the ICC being ‘politicised’ is to keep it
well away from the Security Council.
How successful was the Review Conference in resolving
this conundrum? Amendments have been incorporated
which include both the definition of the crime of
aggression (identifying the decision and initiation
processes, preparations for war and the various
actions that, as a whole or in part, constitute a
crime of aggression), and a set of conditions for the
exercise of jurisdiction by the court in relation to
that crime. The conditions make no reference to the
exclusive need of the Security Council for
predetermination before allowing the ICC to
investigate and prosecute. Instead, if after 6 months
the Council has not acted, the Prosecutor can seek a
formal authority to investigate from 6 judges of the
Court itself.
The amendments agreed at Kampala have to go through
the same ratification process as the original Statute,
although only 30 states are required this time, and
this must be completed by January 1st 2017. Everyone,
including the UK government says that this means
nothing will happen until 2017 and, according to the
Foreign Office, “ICC States parties now have a
seven-year period before making a further decision on
the conditions under which the Court will exercise its
jurisdiction”. But look at it another way. They have
seven years to obtain half the ratifications they
originally achieved in four. 110 countries have
ratified the Statute, and a further 35 have signed but
not ratified. Even with behind-the-scenes arm
twisting, surely 30 states will step forward and clear
the way for prosecuting the crime of aggression? They
must do it by January 2017 to get the crime of
aggression onto the books. But it is entirely possible
they will fulfil that condition before then.
However - read the Kampala resolution carefully and
you will see that this clause has been added to
Article 15 of the Rome Statute:
‘The Court may exercise jurisdiction only with respect
to crimes of aggression committed one year after the
ratification or acceptance of the amendments by thirty
States Parties.”
So if and when the crime of aggression is incorporated
into our domestic law, we can forget about seeing
Blair prosecuted for it.
But is this the only way to bring him to account?
Lesley Docksey is Editor of Abolish War
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