Send Tony Blair to The Hague?

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Wednesday, May 25, 2016 - 12:14
By Mark Kersten*
There are those who dream of the day when former British prime minister Tony Blair faces a panel of judges and answers to allegations that he was responsible for war crimes in Iraq. There are dozens of memes with Blair’s face behind bars or his mug plastered on ‘most wanted’ posters. There’s even a placard that reads “Tony2012”, a play on Invisible Children’s Kony2012 campaign to hunt Joseph Kony, the notorious leader of the Lord’s Resistance Army and himself a target of an arrest warrant from the International Criminal Court (ICC).
Blair and his former ‘partner in crime’ (no pun intended), former U.S. president George W. Bush, are also the poster boys for the unevenness of international justice. Go to a conference on the ICC and you’ll invariably hear the question: “What about Bush and Blair? Why are they not at the Court?” 
The truth is that the world is closer to prosecuting powerful Western leaders for abuses of power than ever before. But could the ICC truly be willing and able to prosecute someone like Tony Blair?

Blair should be sent to The Hague

If you ask UK opposition leader Jeremy Corbyn or former Scottish National Party leader Alex Salmond, the answer is yes. In recent days, both have intimated that Blair should face prosecution in The Hague. Corbyn, who was derided by his predecessor, Blair, before emerging as the leader of the Labour Party, declared:
"If [Tony Blair has] committed a war crime, yes. Everyone who's committed a war crime should be [charged]… I think it was an illegal war. I'm confident about that. Indeed, Kofi Annan confirmed it was an illegal war, and therefore he has to explain to that."
Salmond has made similar remarks, arguing that if there is a: 
"causal link then that would in my view provide the body of evidence, and therefore it would be up to a group of citizens to take this evidence to the Office of the Prosecutor of the ICC and ask him or her to investigate… My own view is the ICC is a better route. And what would be the crime? The crime would be the crime of aggression."

Chilcott Inquiry

The timing of Corbyn’s and Salmond’s remarks coincide with a soon-to-be released report on the faults and failures of Britain’s invasion and occupation of Iraq. It’s fair to say that the Chilcott Inquiry’s findings represent the most anticipated revelations in recent British political history. And, if preliminary reports are to be believed, Chilcott will issue an “absolutely brutal” verdict against the masterminds of the UK’s intervention in Iraq, including Blair. 
While there is a wide consensus that the invasion and occupation of Iraq were illegal, it does not follow that Blair can be prosecuted for it. What Salmond and Corbyn are describing isn’t a war crime. It’s the crime of aggression — a crime that the International Criminal Court does not (yet) have jurisdiction over. The Court may be able to prosecute the crime of aggressive war in 2017, at the earliest. But even when that transpires, the invasion of Iraq will be excluded from its remit because of when it took place. 

Scoring political points

Corbyn and Salmond are simply attempting to score a few political points: Salmond with his left-wing and separatist Scottish constituency and Corbyn with the many anti-Blair segments of his Labour party. But here’s the problem: by misleading the public on what the ICC can do and by making the issue of accountability for alleged abuses in Iraq a matter of partisan gamesmanship, both Corbyn and Salmond are diluting and weakening the case for justice. Their comments do accountability for abuses and atrocities in Iraq a disservice. 
The focus should instead be on the ICC’s ongoing preliminary examination into alleged abuses in Iraq — and, crucially, the UK’s response to it. While Prime Minister David Cameron has shown signs of being increasingly hostile to civil society organizations that send evidence of alleged abuses to the Court, the British government is investing heavily in satisfying the ICC that it can and will prosecute those responsible for war crimes itself. It is doing so primarily through the so-called Iraq Historic Allegations Team, a 145-person strong organisation “set up to review and investigate allegations of abuse of Iraqi civilians by UK armed forces personnel in Iraq during the period of 2003 to July 2009”. 

ICC would prefer not to proceed to an official investigation

As for the ICC, it has been clear in its preliminary examination reports that the UK must demonstrate this willingness or the Court will have no other choice but to proceed to an official investigation. This is, emphatically, not what the ICC wants. Ideally, two things would happen: first, the institution would avoid any kind political or legal show-down with one of its most important and powerful supporters; and second, some senior British officials would be held to account, allowing the ICC to claim that its policy of “positive complementarity” is alive and well and that it galvanised domestic justice for abuses in Iraq. Notably, that is unlikely to include Blair. His name was not raised by the legal organisations that successfully pushed the ICC to (re)open a preliminary examination in 2014. 
Iraqi victims and survivors of abuses at the hands of Western officials and citizens deserve justice. The ICC and the UK’s response to the Court’s preliminary examination may or may not bring them a degree of accountability. At the least, they stand a chance. But short-sighted partisan bluster and squabbles most certainly don’t.
Courtside Justice is a bi-monthly column by Mark Kersten, the creator of Justice in Conflict, looking into the politics and dilemmas of international justice.

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