This question is going to be asked a lot over the next couple of days as the Chilcot report into the War on Iraq is published. The media coverage of this question has been terrible so here’s a quick summary of why Tony Blair cannot be prosecuted at the International Criminal Court (ICC) for the 2003 invasion of Iraq.
The first thing to understand is that the law in this area is very messy. There is a big difference between the law that applies to the actions of states and the law that can be used to hold an individual person criminally responsible meaning that they get sent to jail. The Crime of Aggression is the technical term for punishing someone who invades another country.
Lloyd George first proposed the idea at a Cabinet meeting in late November 1918, when the British Government was debating whether or not they could prosecute Kaiser Wilhelm II for starting the First World War. During the inter-war years several different attempts were made to devise an international legal mechanism to punish the Crime of Aggression. None of these were particularly successful and the 1928 Kellogg-Briand Pact was an attempt to get states to agree to renounce war rather, rather than impose a scheme for criminalising individual leaders. At the Nuremberg Tribunal after World War Two this was part of the basis for establishing the existence of a presumption that states should not wage aggressive war. A similar formulation was used in the Tokyo tribunal, although one of the judges issued a dissenting opinion on this point. Both of these tribunals have been criticised as victors justice, and on the point of the Crime of Aggression they arguably were – there was, for example, no question of holding the Soviet Union responsible for their 1939 invasion of Finland.
Around the same time the newly drafted Charter of the United Nations implemented a blanket prohibition on the use of force by states, but permitted self-defence and UN authorised military action. This created a somewhat awkward system riddled with exceptions – for example when in 1961 the Indian Army invaded Portuguese Goa that was not considered aggression, and the US were able to commence the Vietnam War in 1964 within the framework of the UN Charter (this point is contentious –see this argument). Importantly this was a law that applied to states as states. An illegal war referred to a state acting outside the limits of conduct permitted by Article 2 and 51 of the UN Charter – it did not necessarily make this a crime that a person could be set to jail for.
Although several separate commissions worked on proposals of this nature in the 1950s little happened. In 1974 a UN General Assembly resolution set out a definition of aggression but listed no judicial body that could prosecute someone for the Crime of Aggression. In the 1990s special courts were created to prosecute crimes arising from conflicts in Yugoslavia, Rwanda and Sierra Leone. These courts were designed to try offences committed against civilians or on the battlefield, not responsibility for the war itself. When the statute for a permanent international criminal court was drafted in 1998 no agreement was reached over the Crime of Aggression. Instead a specialised committee was tasked with drafting proposals to be adopted in 2010. The Kampala amendments, as they are known, come into force in 2017.
The amendments have a temporal limitation clause – under Article 11 of the ICC statute the ICC can only hear cases concerning war crimes that occurred after 2002 – in the case of the Kampala amendments the ICC can only deal with cases of aggression that occur after 2017. Given the invasion of Iraq took place in 2003 this makes any prosecution simply impossible. Furthermore Article 15 of the amended ICC statute requires states that are signed up to the ICC to sign up separately to the jurisdiction of the court in relation to the Crime of Aggression. Britain has not signed up to the jurisdiction of the amendments but is a member of the ICC, which allowed to the prosecutor to investigate the conduct of British soldiers in Iraq in 2006. What this means (to indulge in a thought mischievous thought experiment) is that the new Prime Minister Theresa May could decide after her Brexit negotiations break down next year, to launch a commando raid on Brussels. British soldiers could be tried at the ICC for any violations of the laws of warfare or mistreatment of civilians during the operation , but the Prime Minister could not be prosecuted for actually ordering the operation in the first place as Britain has not signed up to the Kampala amendments.
These procedural barriers aside there are two areas under Article 8 of the amended ICC statute, which indicate that any case against Tony Blair would be much more difficult than might be assumed. Firstly there is a requirement that the act of aggression’s “character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.” This as scholars have noted allows enormous wiggle room as it is not clear what these terms actually mean. Secondly other provisions in Article 8, in particular the definition of aggression as being contrary to the Charter of the United Nations, would allow the lawful enforcement argument to be presented in a different way. Given that a major plank of the case for invasion made by Blair was the enforcement of existing Security Council resolutions the argument has been made that this had sufficient legal cover under the UN Charter. Cards on the table – I completely disagree with that assessment, I think the war was a violation of Article 2 of the UN Charter. It is however (as I point out above) not the same as saying that it passes the hurdle for criminalising someone for taking the decision. Article 8 offers some wiggle room on this point for Tony Blair’s would be defence counsel.
Professor Philippe Sands engaged in an intriguing series of thought experiments about other alternative ways of prosecuting Blair. The likeliest he concluded was the creation of a special court by the UN. Political will aside this would run into significant legal hurdles given the status of the agreement between the UN and the ICC which, recognises the ICC’s primacy in dealing with the “most serious crimes” and Article 2 requires both bodies to respect the others mandate. In sum given the way the law stands at the moment it is not at all clear that Tony Blair could be prosecuted for commencing the Iraq war. This is not a conspiracy but a reflection of broader structural problem in international law; it is very difficult to hold individual leaders legally responsible for their actions. Around 17 years ago the House of Lords made some progress in this area with the Pinochet judgment but this is an uphill struggle and it will take years before there is anything approaching a regime in international criminal law that can act as a serious deterrent to someone contemplating the invasion of another country. Equally, the entire fact this discussion is even taking place in Britain is a reflection of the fact that it is a functioning democracy which respects the international rule of law. The real battle will be designing a legal regime to deter states, such as Russia where these features are lacking, from committing acts of aggression.