Is Tony Blair a War Criminal?

An Eccentric Anomaly: Ed Davies's Blog

Both more specifically and more generally: did Tony Blair, the rest of the British government, a large proportion of Parliament, a swathe of the civil and diplomatic services, the monarchy and the military commit a war crime through their involvement in the planning, preparation, initiation or execution of the 2003 invasion of Iraq?

IANAL and I'm struggling a bit with some of this stuff but I think that, strictly speaking, they did not though only because waging a war of aggression or a war in violation of international treaties is not a war crime but rather, to use the terminology of the Nuremberg trials as it has entered current international criminal law, a crime against peace. Rudolph Hess's conviction is a relevant case; he was found guilty of participating in waging aggressive war but not guilty of war crimes (or crimes against humanity).

The distinction is a bit pedantic but it does have unfortunate consequences for the legal situation in British law and for jurisdiction in international law.

Like many, I think that the war was illegal despite the fact that the then Attorney-General supposedly came up with an opinion that it was actually legal. I doubt I'm the only person to think that the fact that the government refused to publish this opinion is a pretty clear indication that it was not mind-bogglingly robust; most likely they didn't publish it because people would point at it and laugh.

We can guess what it might have contained, (e.g., as Craig Murray does, suggesting a doctrine of pre-emptive self defence) though too much speculation would be a bit of a distraction. Much better to line the defendants up in the dock and see what defence they come out with.

Article 2 of the UN charter requires countries to “refrain” from attacking each other except for two cases:

Having, in the past, read all (I think) of the Security Council resolutions related to the first Gulf War and the 2003 invasion I did not see any text which authorized an invasion of Iraq. The only military action authorized was that necessary to remove Iraqi forces from Kuwait. Even if any Iraqi non-compliance with the terms of the agreements that terminated that war had somehow reactivated that authorization it would not have permitted the full-on invasion of Iraq. Actually, the relevant Security Council resolutions seem to me to be pretty light on any consequences of non-compliance, presumably leaving them to future SC discussion, so that reactivation seems difficult to argue anyway.

As various SC resolutions were being passed to attempt to deal with Iraqi intransigence there was a move by a few nations (Brazil, Russia, Germany?) to put in wording to say that further Security Council discussion would be required before action was authorized but Britain and the US argued that this was unnecessary; there was “no automaticity” in the resolutions implying any authorization of action should Iraq not comply.

So, as far as I can see there's little doubt that the Security Council did not authorize the invasion.

The other possibility would be that the invasion was actually, somehow, an act of individual or, more likely, collective self defence. Since Iraq hadn't, at the time of the invasion, actually invaded anywhere for a while this seems difficult to sustain with the lack of the occurrence of an armed attack needed for Article 51 to apply.

So the invasion seems to be in contravention of the UN Charter. But does that make it a crime? The Nuremberg Principles would seem to indicate it does:

Principle VI
The crimes hereinafter set out are punishable as crimes under international law:
  • Crimes against peace:
    • Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
    • Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).

Note the distinction in (i) between a war of aggression and a war in violation of international treaties (although, of course, any particular war could be both). Presumably the UN Charter would constitute an international treaty for this purpose - I'd have thought it would be the most powerful one, overriding any others which contradicted it but that's somewhat beside the point.

The Rome Statute (which establishes the International Criminal Court) seems to agree, defining, in the first paragraph of Article 8 bis:

For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

This is much more restrictive that the Nuremberg Principles in that it only applies to a “person in a position effectively to exercise control over or to direct the political or military action of a State” as opposed to anybody involved in planning, preparation, etc. It's difficult to know who this applies to in Britain. It must mean the prime minister and, I'd assume, the whole cabinet via cabinet responsibility but it's difficult to say who else: the chiefs of the armed forces? the monarch? the whole of parliament? or just MPs who vote for the action (or those who don't, without reasonable excuse, vote against it)?

The problem is that, despite it being nearly 70 years since Hess and co were banged up for invading Poland and so forth, war of aggression has not been well defined long enough for the International Criminal Court to be given jurisdiction over crimes of aggression yet - at least as I understand Articles 15 bis and ter (which are more than usually convoluted in their references) of the Rome Statute.

Wikipedia seems to agree.

This is reflected in British law in sections 51 and 58 of the International Criminal Court Act 2001 and section 1 of the International Criminal Court (Scotland) Act 2001 which say things like:

It is an offence against the law of England and Wales for a person to commit genocide, a crime against humanity or a war crime.

Crimes against peace or of aggression are conspicuously absent from this list. In the English/Welsh version of the act this is made explicit in section 1(1):

“ICC crime” means a crime (other than the crime of aggression) over which the ICC has jurisdiction in accordance with the ICC Statute.

In the Scottish act its equivalent is in section 28(1).

This is all a bit of a pity as it makes it quite a lot harder to prosecute people.

In essence, it seems to me that the state of international law now is that waging aggressive war is a crime but nobody has the authority to do anything about it (yet). If a tree falling in a forest is against a law but nobody has jurisdiction to enforce that law does it make a sound? Of course, that didn't stop the Nuremberg trials where they made up the law as well as the jurisdiction as they went along. It just means you have to be on the winning side to make it stick.

If you're a politician who's running a country which, through access to economic resources and technology, is likely to be on the winning side (or at least, on a side which is not likely to lose very seriously and, particularly, not on home territory where you personally live) then it's not in your interest to rush in jurisdiction for this sort of matter.

George Monbiot's Arrest Blair site is a bit odd in that it encourages people to make a citizen's arrest of Tony Blair while at the same time acknowledging that the prospects for prosecution in international or British law are non-existent for now. It almost seems like incitement to false arrest. On the other hand, the idea of pointing out that the situation needs sorting out is a good one.

If anything, things are going in the opposite direction. The Spectator reports that the obligation to comply with international law and treaties has been dropped from the ministerial code. Assuming that was in place in 2003 it would at least give a route to attack Blair though I'm not sure what implications non-compliance with the ministerial code would have.

The main thing, I think, is to make sure that the ICC's jurisdiction is increased to include aggression as soon as possible and that British law (and that of other countries) should be updated to reflect this.

While this jurisdiction is really unlikely to be applied retrospectively it'd be good if there was at least some acknowledgement that it's only really on a technicality that there haven't been prosecutions. The repeated attempts by the British establishment to frame the war as a misjudgement rather than a crime mean that the main lesson will not be learned and that the west will continue to have weak legitimacy to condemn future aggression by other countries.

Update 2015-10-28

I'm pleased to see someone (David Morrison) who actually seems to know what they're talking about come to pretty much the same conclusion.

Something which was news to me was that, though his final advice has not AFAIK been published, the Attorney-General did give a parliamentary answer on the supposed legal basis for the war: Hansard.

David Morrison discusses this answer paragraph by paragraph but doesn't mention the final paragraph 9:

9. Resolution 1441 would in terms have provided that a further decision of the Security Council to sanction force was required if that had been intended. Thus, all that Resolution 1441 requires is reporting to and discussion by the Security Council of Iraq's failures, but not an express further decision to authorise force.

This seems, to me, to be an outrageous interpretation in the light of the US and UK government's insistence during the drafting negotiations for this resolution that such a provision was not required.

Update 2016-07-10

Clive Coleman, a BBC legal correspondent, also says much the same but, interesting, adds the possibility that Blair could be subject to a criminal prosecution for misconduct in a public office or an equivalent civil claim.