ICC & British war crimes: The trial of Tony Blair?

Several years ago, a British television channel ran a film entitled The Trial of Tony Blair.

Not only was it pretty funny, with the former British prime minister freely sharing with all and sundry the innumerable times he ‘felt the hand of destiny’ on his shoulder, but the film’s main premise of a Tony Blair about to get shipped off to The Hague to face trial over the Second Iraq War was deeply satisfying on an emotional level.

At the time, it seemed like a piece of wishful thinking with solid production values, but recent news from the International Criminal Court gives reason to believe that Tony Blair isn’t out of the woods yet.

Allegations that British troops abused and tortured detainees during the Second Iraq War have surfaced time and again over the past decade, in no small part due to the work of Public Interests Lawyers (PIL) in Birmingham and the Berlin-based European Center for Constitutional and Human Rights (ECCHR).

The ever-increasing evidence accumulated by these two organizations and others like them has understandably led to some consternation about how the British armed forces acquitted themselves in Iraq. Unfortunately, all this concern has so far been dealt with ‘the British way’, which means a spate of drawn out, expensive public inquiries where everyone in general and no one in particular gets blamed for whatever happened.

In serious cases, the politician of the day (nearly invariably a different one than the one responsible for the events under inspection) “regrets” the actions of his predecessor, just as someday his successor will inevitably “regret” whatever shady behavior he himself is currently up to. Apparently, this manner of settling highly controversial points of public policy somehow does the trick for British people.

The al-Sweady and Baha Mousa Inquiries

Two of the most important inquiries in relation to British actions Iraq are the al-Sweady Inquiry and the Baha Mousa Inquiry.

The al-Sweady Inquiry focuses on the incidents surrounding the Battle of Danny Boy, a firefight that erupted at a British checkpoint in Iraq in 2004. An initial allegation that a score of Iraqis who were taken prisoner after the battle were summarily executed has been withdrawn, but investigations continue into allegations that detainees were abused.

The Baha Mousa Inquiry investigated the death of an Iraqi hotel receptionist (this would be Mr. Baha Mousa) in British custody in 2003. Mousa, a widower with two small children, was beaten so severely while in British custody that he suffered 93 separate injuries prior to his death. While the al-Sweady Inquiry meanders on, the Baha Mousa Inquiry resulted in only one conviction, that of the only soldier who had the, for lack of a better term, belated decency to confess. In fact, the judge claimed that it was impossible to secure further convictions, because the soldiers involved covered for each other.

So while the Baha Mousa Inquiry resulted in no fewer than 73 recommendations for future practice (some of which were immediately rejected by the British government), only one person served time in jail, just one year, for the murder of an innocent man. While yet another body, the Iraq Historic Allegations Team, is re-warming the Baha Mousa case and many others, its progress has been slow. Glacially slow.

This disappointing impunity on the ground is surpassed only by the level of impunity in the upper echelons of politics, where so far no one at all has been called to account for waging a war in Iraq on false pretenses and then killing and mistreating a significant proportion of the local population. Could ICC involvement change this?

International Criminal Court investigates

Let’s say that the decision to re-open the examination of British action in Iraq has been an unexpected and, for once, pleasant surprise.

However, everything should be taken with a grain of salt, and all that has so far happened is that the ICC’s prosecutor, Fatou Bensouda, has agreed that the evidence merits re-opening the preliminary examination. She has not requested a formal investigation, and the entire process is nowhere near the point where charges are laid or warrants issued.

Furthermore, most readers will be disappointed to hear that the examination relates to war crimes only. Under international law, there is a separation between the act of going to war and how you behave when you are actually in a war. As far as going to war is concerned, a country is not allowed to commit an act of aggression, which basically means attacking someone else, like Iraq did to Kuwait back in 1990. As far as what you can do in a war is concerned, there’s a long list of forbidden actions, but the biggest ones are prohibitions on looting, torturing, raping and killing the locals. If it sends a chill down your spine to contemplate something, it’s probably on the war crimes list.

Now when the States Parties sat down to draft the Rome Statute (this is the core document of the International Criminal Court which lays out all the rules) they managed to agree on what the war crimes were and even to write them all down in the statute. Admittedly, they did so in a manner so confusing as to keep law students up at night, but at least it’s something to work with.

What the States Parties somehow could not agree on was what constituted an act of aggression, and the reason they could not agree on this was because Britain and the United States refused to agree on it. Why anyone was listening to what the United States thought about a document it was unlikely to ratify in the same century it signed it is a mystery unto itself, but needless to say, “country A takes its army and invades country B” is generally considered a pretty good starting point on what constitutes an act of aggression. There are always a few tricky details, but in the main, it isn’t rocket science.

So while the States Parties agreed that aggression was a crime under international law, since it defied definition no one could be tried for it (this was kind of rectified by the Kampala Declaration of 2010, but not enough to make a difference for our purposes here). And this is why when we deal with the Second Iraq War, instead of going straight for the jugular and trying Bush, Blair et al for invading Iraq, which would be a pretty open-and-shut case, we muddle around with the more convoluted and difficult-to-prove war crimes. So what re-opening this investigation means for the crime of aggression is absolutely nothing in the short- to mid-term and it is why this examination will be more complicated than one would be inclined to think on the face of it.

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