The Long Road to the Hague: Prosecuting Blair

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The Long Road to the Hague: Prosecuting Blair

Wednesday 06 October 2010

by: Lesley Docksey, t r u t h o u t | Op-Ed

 

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 United Kingdom has made a declaration accepting the jurisdiction of the Court. Nevertheless, members 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 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 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 the 30 ratifications that allowed it to pass into law, support for the ICC was obviously keen - 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. Their panel of international lawyers then compiled a full report on the evidence from testimony from eye- and expert witnesses, together with their legal opinion that war crimes had been committed in Iraq. The report was presented to the Attorney General and to the ICC, which was unable to act.

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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 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 around 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 response in itself constituted a major difference between Dorset and other UK police forces. The difficulty was that any complaint of illegal behavior 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 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 Rome Statute Review Conference earlier this year was the defining of this crime and of 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 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 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 1, 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. One hundred and ten 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 fulfill 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?

The Long Road to The Hague - Prosecuting Blair Part 2

Regime Change

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 Iraq and, more importantly, it has now been confirmed by papers released since the invasion and by evidence from the Iraq Inquiry. The crime that Blair committed knowingly, deliberately, and because, in his own words, "I believe I was right" is regime change.

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 Iraq. So, said Sir William Patey to the Iraq Inquiry, senior British officials advised when they looked at a proposal for regime change in Iraq in late 2001. A Downing Street memo in March 2002 says: "A legal justification for invasion would be needed. Subject to Law Officers advice, none currently exists. Regime change by military means would require the construction of a coalition and a legal justification A full opinion should be sought from the Law Officers if the above options are developed further. Of itself, REGIME CHANGE has no basis in international law." It also, tellingly, has this to say: "In the judgment of the JIC there is no recent evidence of Iraq complicity with international terrorism. There is therefore no justification for action against Iraq based on action in self-defence (Article 51) to combat imminent threats of terrorism ... "
A paper produced by the Cabinet Office in July 2002 discussing the military aspects of invading Iraq recognizes both the US aim of regime change and the need for lawful justification. To quote: "US views of international law vary from that of the UK and the international community. Regime change per se is not a proper basis for military action under international law." And in her evidence to the Iraq Inquiry, Elizabeth Wilmshurst revealed that not a single legal adviser within the Foreign Office believed the war to be legal. All the advice being given to Blair from 2001 onwards was that invasion for the purpose of regime change was unlawful.

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 Iraq. That the whole thing was an inflated tissue of lies built on very doubtful intelligence did not matter to him. That he stood up in the House of Commons and lied to Parliament did not matter, although that in itself was a serious offense deserving of punishment. What mattered was that it was necessary to prove that Britain was under threat of imminent attack. Failing a UN resolution authorizing force, only this would make his drive to war legitimate. And he was committed to going to war. Bush and his team cared little for legality, world opinion or that of their own citizens. But Britain on the whole is a law-abiding country, and Parliament would only back Blair if they could be convinced the invasion would be legal.

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 Iraq will not be covered, having taken place before the crime of aggression becomes prosecutable. What should we prosecute him for, now that we know we cannot pursue this route?

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 Iraq itself. (It's always a good idea to install a friendly government in the country you have invaded and occupied. It avoids problems like this.) Many hold that Iraq's current government is illegal, and one could perhaps find enough surviving members of the illegally overthrown pre-invasion government to take a dispute to The Hague. But one would still have to cope with the Security Council's vetoes.

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 Britain

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 Iraq. Another possibility, considering his lies to Parliament, his manipulation of and misrepresentation of the intelligence he was given, the financial deals he has set up and his fight to keep those secret despite regulations, would be his abuse of office.

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." Kampala resolution 

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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