There has been a great deal of calling for Tony Blair to be prosecuted for war crimes for the part he played in taking us to war in Iraq. However, I would much rather see him tried for crimes against peace. Many of the cases that have been built against Tony Blair have focussed on what our armed forces in Iraq did once they went in, i.e. torturing prisoners, attacking civilians etc. Why can’t we prosecute him for starting the war in the first place? The answer is that that isn’t actually illegal yet.

The law you’re looking for is the Rome Statute of the International Criminal Court, which Britain ratified in 2001, which states that wars of aggression are “most serious crimes of concern to the international community”. A war of aggression is a war fought for any reason other than self-defense – which is why the Weapons of Mass Destruction in 45 minutes were so important, and why when Tony Blair admitted on television last month he would’ve gone to war, WMD or not, he effectively indicted himself. Undoubtedly Blair believed he was going to war for reasons that were right. But the fact is that “God and George Bush wanted it and Saddam is evil” aren’t good enough.

However, currently the ICC has no power to enforce this crime: under Article 5.2 of the Rome Statute, “the Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.” Such a provision has yet to be adopted because no-one has been able to agree all the issues surrounding such a law, like “how do you define aggression?” and “who should have the power to determine what constitutes an act of aggression?” Several states with somewhat violent backgrounds fear the consequences of the UN definitions of aggression actually being enforceable, and would rather keep such powers in the non-binding UN Resolution system and the Security Council.

Unfortunately for Tony Blair and happily for democracy, liberty, and Iraqis, there is some movement on this front. In May 2010, representatives of the signatories to the Rome Statute are having a “Review Conference”. A proposal put forward by Liechenstein on behalf of the Special Working Group defines aggression as “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”, which is ominous for Tony Blair, George Bush, and indeed, Barack Obama. The second half of this proposal is less helpful, as there are several provisions which allow the Security Council to delay or prevent any prosecution – the Security Council, of course on which both the UK and the US wield a veto. The Chilcot Inquiry is amassing evidence that will be very useful for pressuring any reluctant states to support prosecution under the sheer weight of the facts. It remains to be seen if this proposal would be passed. If they do, Tony Blair could be prosecuted for crimes against peace shortly thereafter.

Which all sounds rather far away and unlikely. Even before then though, it just takes someone with enough money to bring a court case for crimes committed in war and under the principle of universal jurisdiction Tony Blair could be tried pretty much anywhere in the world, including here. But wouldn’t it be so more satisfying if he was tried for the war itself?

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