The Long Road to
Wednesday 06 October 2010
Ex-Prime Minister Tony Blair. (Photo: Andrew Newton / Flickr)
Ex-Prime Minister and post-Downing Street millionaire Tony Blair, to celebrate the publication of his book "A Journey," was to have held "signing" session at Waterstones, Piccadilly on September 8 that he cancelled at the last minute. 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, any powerful Western state - 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 recognized bodies or their coalitions. A good example of an ICJ advisory opinion is the one it delivered in 1996 for the World Court Project on the legality of the use of nuclear weapons. However, neither "settled" disputes or advisory opinions really result in accountability.
Of the permanent Security Council members, only the
But the UN Charter authorizes the Security Council to enforce the Court's rulings. Security Council members can thus veto any judgment 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. We cannot, regardless of what statements we issue or pieces of paper we sign (or in
In 1998, the
Following the illegal invasion of
In November 2003, Peacerights held a legal inquiry to examine aspects of the invasion and occupation of
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 not only that a failure occurred, but why. 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
In September 2003, I wrote a letter to Dorset's Chief Constable, requesting that
I received a letter from the Chief Constable saying that the matter was under consideration. That response in itself constituted a major difference between Dorset and other
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 of Public Interest Lawyers took a witness statement from me, which in turn 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
At Nuremburg, the crime of aggression (then known as "crimes against peace") was said 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
One of the main blocks to progress is that the decision allowing a prosecution to take place lies with the Security Council and is therefore under the control of politicians, rather than the 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 judgments 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 neighbor to attack neighbor 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 its permanent members 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 Ö 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 Councilís predetermination before allowing the ICC to investigate and prosecute. Instead, if after six months the Council has not acted, the Prosecutor can seek a formal authority to investigate from six judges of the Court itself.
The amendments agreed at
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?
The Long Road to
There are few legal justifications for waging war. Where individual states are concerned, every state has the right to self defense (Article 51, UN Charter), but one must prove an attack on one's territory has taken place (a breach of the state's sovereignty) or that an attack is genuinely imminent. The only other legal military action is that properly authorized by the Security Council, whether for peacekeeping, intervention or to enforce international law.
People want to see Blair tried for war crimes, crimes against humanity and the supreme crime, the crime of aggression. But another crime was committed when we invaded
There is no basis in international law for regime change. So found a Dutch legal inquiry into the Dutch government's decision to back the invasion of
A paper produced by the Cabinet Office in July 2002 discussing the military aspects of invading
And here lies the reason for the "dodgy dossier," for Blair's insistence on Saddam's weapons of mass destruction, the infamous "45 minutes," for the legal opinion on an A4 sheet of paper and the "real and present threat" he convinced Parliament this country was facing from
Now that we have so much more testimony and paper evidence of Blair's knowledge of the lack of evidence for WMD, for his dismissal of all the legal advice he was being given on the issue of invading Iraq, for his early commitment to regime change knowing full well it would be illegal, and for the lies he repeatedly told the country and Parliament in his bid to persuade us to back his eagerness for war, where do we start? This breach of international law is considered part of the crime of aggression1 by the ICC, but as we have seen, the invasion of
Regime change was considered illegal in international law regardless of the ICC and the only other international option is the ICJ, which "settles disputes between states." The only state that could justifiably go to the ICJ with this would be
However, a recognized body could possibly initiate something by seeking an advisory opinion/ruling on Blair vis a vis regime change - a route worth exploring, perhaps, but it would be a long and difficult route, with no real result at the end.
Prosecuting Blair in
On the domestic front - and Blair is after all a British problem - could he be prosecuted for committing our Armed Forces to effecting an illegal regime change, or indeed any of the other illegal acts they committed during the invasion and occupation of Iraq? Yes, every serviceman and servicewoman should be held responsible for their individual acts, but Blair was at the head of the chain of command and carries the ultimate responsibility.
Could we seriously try for a private prosecution? What are our options? We could still go for war crimes and crimes against humanity, as covered by the ICC Act 2001. John Pilger suggests using the Proceeds of Crime Act. As Felicity Arbuthnot demonstrates, Blair has accumulated millions out of the contacts he made from his decision to invade
A private prosecution would bypass the CPS, but may have to be done quickly as one needs a universal jurisdiction arrest warrant. To quote another government source: "The Government has, after careful consideration, decided that it would be appropriate to require the consent of the Director of Public Prosecutions before a universal jurisdiction arrest warrant can be issued to a private prosecutor. A suitable legislative amendment will be brought before Parliament at the first opportunity." They say they want to avoid people using this action to make political statements or cause embarrassment, but they need to be reminded that nothing should hinder any individual or group from seeking justice. Sheer expense will make people think carefully before taking such an action, and there are many better ways to cause embarrassment. And as with seeking an advisory opinion from the ICJ, it would be best to build a coalition of responsible and serious British organizations and citizens, rather than relying on an individual or a campaigning organization. A coalition would be far more likely to obtain a universal jurisdiction arrest warrant, should we need the consent of the Director of Public Prosecutions.
One could find, however, that any private prosecution that gets to court would face government QC's as well as the best lawyers Blair's money and influence could buy. This takes serious money. Given the possibility of getting Blair into a British or any other court, there would be a queue of international lawyers offering their services for free, but - and this is an essential "but" - funds must be available to cover the costs of the other side, should one lose. Put all the peace campaigners and our cash-strapped organizations together, and we would still not have the money to go up against Blair's millions. The only answer to that problem is to engage the backing of some seriously rich people who are committed to peace and law.
One thing I am sure of - if it was clear that somebody pursuing a private prosecution did have the financial resources to cover the other side's costs, then it would be very likely that the party (aka Blair) being prosecuted would attempt, quite desperately, to settle out of court - which, in the interests of law and creating a precedent, would have to be - absolutely must be - refused.
And there is one further thing to consider - the small but constant drip of courts, juries and judges upholding the law in the face of strong government or corporate opposition. Juries failed to agree, resulting in the judge having to find the Fairford Five not guilty for damaging United States Air Force equipment at Fairford airbase; judges ruled on publishing previously hidden documents, as in the Binyam Mohammed case; they ruled in favor of the Campaign Against Arms Trade and the Corner House over BAE Systems' corruption and bribery; the European Court of Human Rights ruled against the UK government following the "McLibel" case; and most recently, a judge found SmashEDO activists in Brighton not guilty for "decommissioning" EDO's factory, which supplies weapons to Israel. We have to remind ourselves that, although we are fighting against "the system," many people within that system feel as we do, and are as committed to law and the truth as we are. We have to keep going because sometimes the system is on our side.
In 2003 and 2004, people's anger over the illegality of the invasion ran hot. That anger has not gone away. It has become a cold, analytical anger that still seeks justice: justice for the Iraqis and their ruined country; justice for the dead and injured soldiers and their families; justice, too, for the damage done to our own country, our civil liberties and our so-called democracy. Until Blair is made fully accountable for his actions, we are not free from this shame. That is why, in this morass of law and politics, we must go on searching for a way that furthers, endorses and upholds both international and domestic law, and we start by getting Tony Blair into court.
1. "For the purpose of paragraph 1, 'act of aggression' means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations."
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"The master class has always declared the wars; the subject class has always fought the battles. The master class has had all to gain and nothing to lose, while the subject class has had nothing to gain and everything to lose--especially their lives." Eugene Victor Debs