The release of the Chilcot Report on July 6 has led to renewed calls for former British Prime Minister, Tony Blair, to be prosecuted at the International Criminal Court (ICC) for his role in starting the Iraq War.
The damning report about Britain's role in the war found that Blair deliberately exaggerated the threat posed by Iraq in order to drum up support for the 2003 US-led invasion. Blair had promised then US President George W Bush that “I will be with you, whatever”, eight months before the invasion began.
Determining the legality of the war was not part of the Chilcot Inquiry's remit, but it is clear that the invasion was illegal under international law. The invasion was not authorised by a UN Security Council resolution, nor was it launched in self-defence.
Yet Blair and Bush, and former Australian Prime Minister John Howard, cannot be prosecuted for the crime of aggression at the ICC because the Court does not yet have jurisdiction over that crime. This is primarily because powerful states, including the US and the UK, have historically resisted attempts to give the Court a power which they feared could fetter their military freedom and see Western leaders tried at The Hague.
During the 1998 negotiations on the Rome Statute, the ICC's founding treaty, many of the 160 states attending argued for the Court to be given jurisdiction over the crime of aggression. The US and the UK, amongst other states, were vehemently opposed.
A compromise was struck. The crime of aggression was included in the Rome Statute as one of the core crimes under the Court's jurisdiction, along with war crimes, crimes against humanity and the crime of genocide. However, the treaty stated that the Court would not exercise jurisdiction over the crime of aggression until a definition of the crime, along with the conditions under which the court could exercise jurisdiction, had been agreed.
Discussion of these matters was put off until the Rome Statute Review Conference in Kampala, Uganda, in May-June 2010. Ahead of the conference, the US, France and the UK sought to influence the outcome of discussions on amendments to the Rome States which would give the court jurisdiction over the crime of aggression. US diplomatic cables published by WikiLeaks provide insight into their manoeuvrings.
According to a February 2010 cable from the US Embassy to the United Nations in New York, the Obama administration wanted decisions on the crime of aggression to be deferred yet again after discussions in Kampala. Failing that, the US wanted to ensure that the court's jurisdiction over the crime would be subject to a “Security Council trigger”, that is, the Court would only be able to act after the Security Council had determined that an act of aggression had taken place.
The governments of France and the UK agreed. Both states are strong supporters of the ICC when it comes to prosecuting African leaders for war crimes and crimes against humanity, yet neither state wanted the Court to be given a power which could result in their leaders being charged with the crime of aggression.
The other permanent members of the Security Council, Russia and China, took the same position. By keeping the power to determine aggression within the Security Council where they have veto power, the five permanent members (P-5) could prevent any aggressions cases from being brought at the ICC against themselves or their allies.
In January 2008, French officials had asked the US Ambassador-at-Large for War Crimes, Clint Williamson, if the US could use its diplomatic clout to influence the debate on aggression. According to a cable from the US Embassy in Paris, the Williamson said that the US government “would consider bilateral interventions with appropriate countries if France and the UK judged such efforts to be helpful”. However, the “general anti-American sentiment in the ICC” meant that US action on the matter could “be counterproductive to our shared objective”.
The Bush administration had ought to undermine the ICC since the Court began operating in 2002. It bullied weaker nations into signing bilateral immunity agreements, by which they agreed not to surrender US nationals to The Hague, and passed legislation authorising the use of “all means necessary” to free any Americans detained there. In this context, the Ambassador was right to believe that US involvement in the debate on aggression would be viewed negatively by other states.
The administration of Barack Obama, which took office in January 2009, was seen as being less hostile to the Court. In November 2009, a delegation of US observers attended the annual meeting of the ICC's governing body, the Assembly of State Parties, for the first time. A US observer delegation would also attend the Kampala Review Conference.
This new, albeit limited, engagement gave the US some credibility in diplomatic discussions about the Court, which had been lacking during the Bush years. The US was now more willing to intervene in the aggression debate.
On 14 December 2009, the new US Ambassador-at-Large for War Crimes, Stephen Rapp, discussed the matter with French officials. A cable from the US Embassy in Paris reported that the French and US governments agreed that the upcoming discussion on aggression was the “most pressing concern”. They agreed that “raising this clearly with ICC member states would be an important priority between now and the Review Conference and at the conference itself on appropriate occasions”.
As well as the delegations from states parties and observer states, representatives from 143 non-governmental organisations (NGOs) were set to participate in the Kampala Review Conference. The allies sought to influence the NGO's positions on the aggression debate too.
According to a February 2010 cable from the US diplomatic mission at the United Nations in New York, Rapp told French and British officials that “the argument that works best with NGOs is the 'just don't go there' argument - that taking on the crime of aggression would politicize the court and undermine its core work of punishing genocide, war crimes and crimes against humanity”. Rapp said he expected that some NGOs would “write editorials and take positions arguing against including aggression in the ICC's jurisdiction”.'
Some NGOs and prominent individuals, such as South African jurist Richard Goldstone, did express opposition to the Court adopting the crime of aggression ahead of the Kampala conference.
While stating its neutrality on the issue, the advocacy group Human Rights Watch said that it had “serious concerns” about the proposal because “prosecutions of aggression could link the ICC to highly politicized disputes that could undermine the court's credibility and ability to address genocide, war crimes, and crimes against humanity”.
A coalition of mainly African NGOs lobbied the Foreign Ministers of participating states against supporting adoption of the crime for the same reasons.
Rapp told the French and British officials that “various sources, including NGOs, had told him that so long as the P-5 stick together, there would be no outcome on aggression”.
According to the cable, Rapp made it clear that if the outcome of the Kampala conference was that ICC judges were given the power to decide whether aggression had occurred, not the Security Council, “the [US government's] ability to contribute to and cooperate with the ICC in the future would be seriously and adversely affected”.
He further “noted that the [US government] was currently doing a review of the ways in which we could currently assist the ICC, with decisions to be taken soon”. This appears to have been a warning to France and the UK to do the US's bidding in Kampala, as both states wanted the Obama administration to end the hostility which had characterised the Bush administration's approach to the Court.
In the end, the Kampala Conference agreed to amend the Rome Statute so that the Court can exercise jurisdiction over the crime of aggression, but only in limited circumstances.
If the Prosecutor decides to investigate the crime of aggression, she must first inform the Security Council so that it may determine whether an act of aggression has occurred. If the Council does not make such a determination within six months, the court can proceed with an aggression investigation. In other words, Court action is not dependent on a “Security Council trigger”.
However, P-5 pressure succeeded in significantly weakening the aggression amendment through other provisions. The court can only prosecute aggression when the crime was committed by a national of, or on the territory of, a state party to the Rome Statute. This means that nationals of non-member states such as the US, Russia, Israel and China are exempt. Moreover, member states can opt out of the Court's aggression jurisdiction.
Finally, it was agreed that the jurisdiction would not be activated until 2017 at the earliest, and only after at least 30 member states had ratified the amendment.
Since the Kampala conference, the US has continued to voice strong concerns about the ICC acquiring jurisdiction over the crime of aggression. However, the necessary 30 ratifications were achieved in June this year and the jurisdiction can now be activated by a two-thirds majority vote at a meeting of the Assembly of State Parties.
The amendment will not apply retrospectively, meaning that Blair, Bush and the other leaders who started the Iraq war cannot be prosecuted for the crime of aggression at the ICC.
However, in a carefully worded statement published two days before the Chilcot Report's release, the ICC's Chief Prosecutor, Fatou Bensouda, appeared to leave open the possibility that Blair could be prosecuted for other offences which fall within the Court's jurisdiction.
The statement was issued in response to claims made in the British newspaper, The Telegraph, about how the ICC would respond to the Chilcot Report. The Telegraph reported that the Prosecutor had already ruled out prosecuting Blair at the ICC, but would look at the Chilcot report for evidence of war crimes committed by British soldiers.
The Prosecutor said that this was “a misrepresentation of the facts”. While the Court does not have jurisdiction over the crime of aggression, the Prosecutor said, the Court “may investigate and prosecute any individual suspected of committing crimes within the Court's jurisdiction, namely war crimes, crimes against humanity or genocide”.
In addition, the Prosecutor noted that “as general rule, my Office will prosecute those most responsible for the commission of these serious crimes”.
The Prosecutor may have been implying that Blair could be prosecuted for war crimes or crimes against humanity carried out by British forces in the Iraq War under doctrine of “command responsibility”. Under this principle, senior officials can be prosecuted if it is proven that they knew, or should have known, that war crimes were being committed by their subordinates and they failed to stop them.
This argument was made in a 250-page dossier detailing allegations of war crimes by UK forces in Iraq, which was submitted to the ICC Prosecutor in 2014. The dossier, prepared by the UK firm Public Interest Lawyers (PIL) and the European Centre for Constitutional and Human Rights (ECCHR), alleged that some British soldiers had subjected Iraqi detainees to abuse including torture, beatings, sexual assault and electrocution during the Iraq War. It argued that certain senior political and military figures, including then UK Defence Secretary Geoff Hoon, knew, or should have known, that British forces were committing “systematic” war crimes.
Despite new evidence that may be contained in the Chilcot report, however, it is unlikely that the International Criminal Court would ever dare to target former Western leaders such as Blair or senior officials such as Hoon.
Since the Court began operating in 2002, it has shown itself to be unwilling to intrude into conflicts involving Western powers. With the exception of its recently opened investigation into the 2008 Russia-Georgia war, all the Court's investigations have centred on African states. So far the Court has only indicted Africans.
A July 2003 cable from US Embassy in The Hague suggests that officials at the new Court wanted to avoid investigating the Iraq war from the beginning. Such an investigation would incur the wrath of the US, and jeopardise the UK government's support for the ICC.
After receiving hundreds of complaints, then ICC Chief Prosecutor, Luis Moreno-Ocampo, began a preliminary examination into the Iraq war in 2003. With each situation that the Court considers, a preliminary examination is conducted by the Prosecutor before a full investigation is launched. The Prosecutor evaluates whether crimes falling within the jurisdiction of the Court have been committed, and whether the situation is admissible under the Rome Statute.
The cable reported that Moreno-Ocampo had mentioned that he was looking into the actions of British forces in Iraq during a presentation to staff of the International Criminal Tribunal for the Former Yugoslavia (ICTY).
This remark, “according to one Embassy source, led a British ICTY prosecutor nearly to fall off his chair”. However, under the heading “Is Ocampo ready for prime time?”, the cable reported that “[p]rivately, Ocampo has said that he wishes to dispose of Iraq issues (i.e., not investigate them)”.
The same cable reported comments by the Court's Registrar, Bruno Cathala, who is referred to as a protected Embassy source. According to the cable, Cathala told an Embassy legal officer that it “will be crucial…for the ICC to dispose easily of 'silly things like Iraq'”. "We're not going to run all over the world", Cathala said, adding that “he personally wants relations with the [US government] to be smooth”.
Three years later in 2006, Moreno-Ocampo closed the preliminary examination stating that while there was evidence that war crimes had committed by UK forces in Iraq, the offences were not grave enough to justify a full investigation.
His successor, Bensouda, reopened the examination in 2014 after receiving the PIL-ECCHR dossier on detainee abuse. It will likely be several more years before she decides to close the matter again, or to launch a formal investigation into the allegations against British forces.
Meanwhile, the prospect of Blair being prosecuted for any criminal offences in relation to the Iraq War remains remote.