Why you’re unlikely to see Tony Blair at The Hague anytime soon

Stuart Rodger

Calls for Blair to be indicted at The Hague for a ‘crime of aggression’ are unlikely to come to fruition as ICC figure publicly dismisses possibility

AMID the avalanche of news and comment after publication of the long-awaited Chilcot Report, anti-war activists have inevitably restated their calls to see former Prime Minister Tony Blair indicted at The Hague.

But while these calls are widespread and numerous, such an eventuality remains very unlikely. CommonSpace looks at why. 

1.) The International Criminal Court does not currently have the right to prosecute over crimes of aggression

Quite simply, the legal mechanism for prosecuting wars of aggression does not yet exist.

Although activists argue that the launching of the Iraq war clearly violates Articles 33 and 51 of the UN Charter (which permit military intervention in cases of self-defence and after the exhaustion of diplomatic alternatives), and while the ‘crime of aggression’ is clearly outlined in the Rome Statute of the ICC – it has not yet been enacted by partied states or come into force. 

The Rome Statute itself states. under Article 15: “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….. The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute ’

Basically, this means that a prosecution could only take place by 2018 at the earliest, and it would be doubtful whether a prosecution could be made retroactively. 

2.) The ICC’s prosecuting authority has already dismissed the possibility of prosecuting for the crime of aggression.

A statement released on the ICC’s website from the Office of the Prosecutor once again reiterated that a legal mechanism for prosecuting a crime of aggression does not yet exist.

“While the International Criminal Court ("ICC" or the "Court") currently has jurisdiction over war crimes, crimes against humanity and genocide … its jurisdiction over the crime of aggression has not yet been activated. Therefore, the specific question of the legality of the decision to resort to the use of force in Iraq in 2003 – or elsewhere – does not fall within the legal mandate of the Court, and hence, is not within the scope of its preliminary examination,” it said.

However, the possibility remains open that Tony Blair may face prosecution for war crimes carried out during the war itself.

The Office of the Prosecutor said in its statement: “An important distinction must be borne in mind between war crimes, which fall within the jurisdiction of the ICC, and the crime of aggression, which, at the present stage, does not. Suggesting, therefore, that the ICC has ruled out investigating the former British Prime Minister for war crimes but may prosecute soldiers is a misrepresentation of the facts, drawn from unfamiliarity with the Court's jurisdictional parameters. Once a decision is made to open an investigation in any given situation, my Office may investigate and prosecuteany individual suspected of committing crimes within the Court's jurisdiction, namely war crimes, crimes against humanity or genocide.”

The Office of the Prosecutor was responding to what it called an “inaccurate” Daily Telegraph article, which had claimed that “Prosecutors at the International Criminal Court will examine the Chilcot report for evidence of abuse and torture by British soldiers but have already ruled out putting Tony Blair on trial for war crimes”.

3.) Of the people indicted at the ICC so far, none have been western leaders

To date, only 39 people have been indicted  at the International Criminal Court – and all 39 have been African. The indictees include Muammar Gaddafi and Joseph Konny. The warrants for arrest are publicly available on the ICC’s website. 

The warrant for Muammar Gaddafi cites what the ICC saw as his co-ordinated policy of violently suppressing public demonstrations of dissent against his regime as reason for his indictment.

Echoing the issues around Iraq, there has previously been reports that the ‘compassionate release’ of convicted Lockerbie bomber Abdelbaset Al-Megrahi had been orchestrated between Gaddafi and Blair in 2007 as a means of securing BP access to Libya’s massive oil reserves.

Read more: 8 key findings from the Chilcot Report and why they matter

Picture courtesy of Flickr / Chatham House 

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