Is Tony Blair liable for the war against Iraq under International Criminal Law ?

Dr. Ronald Hofmann, postgraduate student, UCT, CApe Town

Introduction

There are already long and wide discussions about the question, whether the military acts of the “Collision of the Willing” against the Iraq in 2003 was lawful under international law or not. In this context also the question arose, whether high state officials of these states are punishable individually under international criminal law. These discussions are often motivated politically.  Until now, there was no prosecution against or conviction of a high state official because of his role in this context.

Recently, Archbishop Desmond Tutu, as a highly accepted person without any recognizable political motivation, claimed that Tony Blair should be prosecuted under international criminal law.[1]

Because of the fact that the prohibition of aggression directly affects the state sovereignty, the definition and requirements for criminal liability have always been controversial, in particular during the negotiations for the ICC Statute.[2]

To answer our question, at first, we have to look for material international law (treaty based or customary law), which allows the punishment of individuals for the crime of aggression. Secondly, we have to consider our case and its particularities to decide whether the invasion was unlawful under international law and whether the behavior and the intentions of Mr. Blair fulfill the requirements for a criminal accountability.  Lastly, I want to analyze the more formal problems, in particular the questions whether there is a court to prosecute such a crime and whether there are other obstacles, for instance immunity problems.

I. Overview of Relevant Facts

Before the war in 2003 arose, there already existed a long conflict between the Iraq on the one side and the United Nation (UN) and several Western States on the other side. This conflict was mainly based on the Iraqi invasion of Kuwait 1990, the assumption that the Iraq developed weapons of mass destruction (WMD) and the Iraqi’s nearly complete refusal to cooperate with the UN.[3]

On 18 March 2003 Mr. Blair hold a speech in front of the House of Commons, giving some reasons for the necessity of military action, including that the Iraq is in the possession of usable WMD and additionally that the humanitarian situation in Iraq is problematic.[4]

After several airstrikes against military objects the “Coalition of the Willing”, led by the United States and the United Kingdom, started an invasion with land forces on 20 March 2003, which lead to the overthrow of Saddam Hussein on 01 May 2003. British forces were actively involved in the air strikes as well as in the invasion on land.[5]

Although there were some attempts to justify the action with previous Security Council Resolutions, there was no – at least no clear – resolution of the Security Council, which explicitly allowed for the use of force against the Iraq.[6]

According to the report of the Iraq Survey Group (ISG), which was released on 30 September 2004, the Iraq had no WMD and had not produced such weapons since 1991.[7]

Arguably more than 100.000 civilians have lost their lives in the battle and afterwards.[8]

On 17 June 2007 Mr. Blair stepped down from his position as Prime Minister and was at the same day announced by the UN as an official envoi of the so called “Middle-East-Diplomatic-Quartet”.[9] He is holding this office until now.

II. Crime of Aggression

The first question must be, whether the crime of aggression was individually punishable under international law in 2003.

1. Rome Statute (ICCSt)

Whereas within the customary international law the main question is, whether the prohibition of aggression is only directed to states or also allows punishment of individuals, within the treaty-based ICCSt there is no doubt that it concerns the accountability of individuals.[10]

The next question is, whether the ICCSt itself establishes a material culpability for the crime of aggression. The statute determines the crimes about which the court shall have jurisdiction and also includes the crime of aggression, Article 5 ICCSt. Furthermore, it also defines the four core crimes under the jurisdiction of the court and especially in Article 8 bis ICCSt the crime of aggression. Insofar it is important to mention that Article 8 bis ICCSt was inserted by resolution RC/Res. 6 of 11 June 2010 at the Review Conference of the Rome Statute and is not in force until now.[11] At the time of invasion in 2003[12] there was no such a definition. According to the old Article 5 (2) ICCSt the court should have become jurisdiction about this crime only at a later stage. Because of this, the old Article 5 (1) (d) ICCSt only functioned as a “placeholder”. It also doesn’t seem to be possible to deduce such a material criminal liability only from the formulation in the old Article 5 (1) ICCSt that the crime of aggression is one of the most serious crimes which concerns the international community as a whole. Such a view would be critical in the context of the nullum crime lege certa principle. The content of the crime of aggression within the statute was one of the most controversial questions during the negotiations of the statute. For a criminal liability at least a minimum standard of certainty is necessary.

2. Customary International Criminal Law

The question, whether there is an international customary rule for punishment of individuals for committing the crime of aggression is discussed quite controversially. Many authors state that the crime of aggression is “widely regarded as a crime under customary international law”[13], that at least “aggressive war is directly criminalized under international law”[14] or “that at least some instances of aggression may be regarded as criminalized”[15]. These assessments can be criticized for at least three reasons. Firstly, in this context, the different authors avoid using the widely accepted definition for emergence of international customary law (at least) clearly. Secondly, there is often no clear distinction between administrative international law which is focused on states and international criminal law which is focused on individuals. Lastly, most authors enumerate cases where the international community recognized the prohibition of aggression, but they do not mention cases, where no steps to prosecution where undertaken.

Although starting an aggressive war is one of the worst wrongdoings and although there seems to be a strong need for punishment of individuals, we should not lose sight of the main principles of criminal and international law.

Therefore, I want to concentrate on the requirements for a rule to become international customary law and on a clear distinction between international administrative and criminal law.

a) Customary International Law

The existence of Customary International Law is recognized in statutes of international courts,[16] in statutes of international criminal courts,[17] in case law[18] and doctrines.[19]

Generally, there are two main requirements for the emergence of customary international law, although many details are controversial and not finally resolved.

Firstly, there is an objective component (consuentudo). This requires an actual state practice, which is derived from the common states behavior.[20] Such a state practice must at least be widespread and uniform.[21] On the other hand this does not mean that this state practice must be perfect and needs absolute consistency, rather the conduct of states should in general be consistent with such rules.[22]  One has to take into account legislative measures, relevant treaty practice, declarations by states or international organizations and last but not least decisions of courts.[23] It is clear that it is normally very difficult to determine the existence of a customary rule because regard must be had to so many different points and state practices. Furthermore, how Cassese clearly pointed out, there is a general conflict in the context of the importance of court decisions between the common law system and the civil law system.[24] I will come back later to this question when I consider the Nuremberg cases.

Secondly, there must be a subjective element (opinio iuris), which generally means that the states accept that a certain state practice is based on international rule.[25] This opinio iuris is derived from state practice.[26] In this context, treaty practice, declarations by states, the adoption of resolutions and decisions of courts are crucial signs for such an opinion. In the Prosecutor v. Tadic case the ICTY decided that even “verbal acts”, namely official pronouncements of state officials or military manuals, play an important role in determining the opinion iuris.[27]

Because all or at least the most of these signs which determine an opinio iuris have an objective nature, it can be said that there is no absolute borderline between the two requirements.[28]  In most cases the objective state practice will be a crucial sign for the opinio iuris.

Lastly, I want to mention the following: If, after the Prosecutor v. Tadic case, we assume that “verbal acts” can play a crucial role and can maybe be solely sufficient for determining the opinio iuris, the question arises, whether the opinio iuris alone can indicate ius cogens under international customary law.[29] In the North Sea Continental Shelf Cases the ICJ decided that state practice alone is not enough.[30]  But what happens, if the opinio iuris requirement is fulfilled but there is no state practice? Can there be a customary rule? In my opinion such a view should be not possible. Firstly, in criminal law it seems to be questionable whether a rule can be grounded on verbal declarations only (lex certa). There will often be no clear distinction between non-binding memoranda as they are common in politics, and an opinion iuris about an individual punishment of an individual behavior. Secondly, there might arise problems with the principle of protestatia facto contrario non valet. What happens if states widely declare that they accept a certain rule but in practice they don’t perform it? Such a declaration is worthless. Hence it can be said that “verbal acts” are a crucial sign, but more “visible” or “real” (widespread) actions of states are needed for the emergence of a customary rule.

b) Aggression in International Public Law

To determine the prohibition of aggression in customary international criminal law, we must answer the question whether an act of aggression is prohibited in international administrative law.[31]

At this point I want to anticipate that a general prohibition of the use of force in international relationships – with some narrow exceptions[32] – is universally accepted. The first attempts to regulate aggressive war can be found in the ancient world, if you look for instance at the works of Aristoteles[33] or later at the works of Grotius[34]. Notwithstanding, until the beginning of the 20^th century, war was a legitimate way to solve problems between states and was regarded as an emanation of the state sovereignty.[35] At the beginning of the 20^th century more and more the conviction arose that international conflicts should be solved peacefully. Some milestones in this context were the Covenant of the League of Nations, the Geneva Protocol of 1924, the Treaties of Locarno in 1925 and the Kellog-Briand Pact of 1928.[36] After World War II a crucial point was the implementation of the Charter of the United Nations (UNCh), according to its Article 2 (4) UNCh the threat or use of force is inconsistent with the purposes of the UN. Furthermore, the adoption of the UN General Assembly Resolution 3314 (XXIX) in 1974 (with the definition of aggression in its annex) constituted another confirmation of the prohibition of using force. Last but not least, the prohibition of aggression as a rule of customary international law was explicitly accepted by the ICJ in Nicaragua v. United States of America.[37]

c) Aggression in International Criminal Law

How I have already mentioned, the question about the “individual prohibition” and the individual culpability seems to be much more complicated to answer.

The first question should be, whether there is an automatic mechanism according to which an individual behavior is punishable, if there is a prohibition directed at states in international administrative law.  I think – no.[38] Some general arguments can be found for this opinion, which are grounded in the different nature of these branches of law. Firstly, the subjects (addressees) of the international administrative law are states and not individual persons. Secondly, in criminal law, a lot of cogent principles to secure the fundamental rights of the accused must be considered which are not valid in administrative law. Lastly, the consequences of the two law-branches are quite different. Whereas administrative law allows for instance the imposition of sanctions on states or the decrial of states, criminal law allows the individual punishment of individual persons.

On the other hand, in the Nuremberg Case, the court pointed out the following often cited passage:

“Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who committed such crimes can the provision of international law be enforced.”[39]

But the court also mentioned some further requirements, including a clear recognition of such rules and a practice of states with the intention to criminalize such prohibitions.[40] In this context, the court referred to treaties, to the behavior of politicians and court decisions where an individual criminal liability was recognized.[41] These further requirements are nothing else than the common test for the question of emergence of customary international law. Because of this, such an automatic mechanism must be denied.

a) State Practice

As I showed above, a widespread and uniform – but not cogent “perfect” – state practice is necessary, which is defined by legislative measures, relevant treaty practice, declaration by states or organizations and court decisions.  Furthermore, for our case it seems to be important to look back to the legal situation in 2003 because otherwise the principle of nulla poena sine lege would be infringed.

aa) Legislative Measures / Treaty Practice

In this context some main occurrences have crucial importance:[42] Firstly, we have to look at the London Charter (LC) from 1945[43] and secondly, the ratification of the ICCSt. Under the topic “crimes against peace” in Article 6 (c) LC the planning, preparation, initiation or waging of a war of aggression was declared punishable for the first time under criminal law. The “Nuremberg Principles” were subsequently approved by two resolutions of the General Assembly of the UN.[44] The next step, after a long break with only a few drafts of the criminal statute by the International Law Commission of the UN, was the introduction of the ICCSt which came into force on 01 July 2002. Although the statute determined a general jurisdiction of the ICC about the crime of aggression, until the Kampala Review Conference, there was no consensus even between the state-parties about the aim and the scope of this crime. Therefore it seems to be critical to refer to this statute in this context.

Furthermore, it also seems to be important that a lot of other international and domestic measures do not include this crime. If you look for instance at the Völkerstrafgesetzbuch in Germany, which allows for the punishment of all international core crimes, it doesn’t include the crime of aggression. Furthermore, the statute of the ICTY doesn’t recognize this crime although – different from the case of the ICTR – the crime was possibly committed in former Yugoslavia.

bb) Court decisions / Criminal cases / Prosecutions

In this context, it can only be referred to the Nuremberg and Tokyo cases, which occurred recently after the World War II.  In these trials several individuals were convicted for committing crimes against peace.

One of the main critical points within these trials seems to be the following: The Soviet Union which was state party to the LC and which also partly staffed the prosecution and the judges in the trials had signed the Molotov-Ribbentrop-Pact[45] on 23 August 1939 alongside with Germany. The agreement also included a secret additional protocol, in which the parties agreed on a territorial division of Poland.[46] Subsequently, Germany and the Soviet Union attacked and occupied Poland on the 01 September 1939 and the 17 September 1939.[47] Whereas the court explicitly determined the accountability of some Germans accused for crimes against peace in Poland,[48] no criminal cases against officials from the Soviet Union were conducted. At this point I want to come back to the general conflict between the civil law and the common law systems, pointed out by Cassese. From a civil law viewpoint it is quite critical to concede such a decision much importance, if the decision is so substantially problematic.

An additional important point in this context is the following one: Although for the question of emergence of customary international law there is no need that other subsequent trials occurred, it additionally seems to be important that there were obviously subsequent armed conflicts which perhaps fulfilled the definition of aggression.[49] Insofar, we only have to look at the invasion of Kuwait by Iraq in 1990. I think that there is no doubt that this war was an act of aggression. Why did nobody prosecute Iraqi officials or at least tried to do so, if a customary rule for an individual punishment exists?

b) Opinio iuris

Insofar we can say that there is a wide acceptance that individuals should generally be punishable for the crime of aggressio. A “good will” of the state community can be found in general verifications of the “Nuremberg Principles” of the General Assembly until the ICCSt was introduced. On the other hand one has to take into account, that after the general confirmation of these principles in 1946/1947, for nearly fifty years, no concrete steps were undertaken, although the International Law Commission in 1995 delivered several drafts of the “Principles of International Law”.[50] It seems to be quite questionable whether we can speak about an opinio iuris if the international community was not able to adopt it in such a long time.

Furthermore, the adoption of the ICCSt with the general determination of the jurisdiction of the court about the crime of aggression was surely a further mile stone in this question, although it must be mentioned that some of the most important and powerful states of the world, most notably the US, Russia, China and India are not state parties. Additionally, the aim and the scope of the crime were quite controversial even between state parties and only in 2010 at the Kampala Review Conference a general agreement could be found in this matter, whereas until now only three state parties have ratified it.[51] It is clear that this fact together with the general introduction of the ICCSt cannot lead to a suspension of a possible customary rule in the case of aggression. But is it not possible to take these uncertainties as a further indication that there is no clear (lex certa) widespread opinio uiris about this matter?

 If we only take these critical points into account, we should ask the following question: Should a customary rule which can lead to such serious consequences for a possible perpetrator be grounded only in court decisions having their origins in World War II and which were widely questionable; in the recognitions of such a rule by the international community which more referred to a prohibition of such acts in international administrative rather than criminal law; in a state practice or a practice of international organizations which was everything but uniform and often politically influenced; or in the content of such a rule, the concrete scope of which is until now quite controversial? Although it seems to be critical to apply the in dubio pro reho principle in the question of the existence of a customary rule because the doubts mentioned above have legal and no factual character,[52] courts should be very careful with the application of such a customary rule.

III. Ádditional problems in the Iraq case

The following questions have to be answered only, if we assume that such a customary rule exists. I want to focus on two main points.

Some voices argue that only particular violation of the prohibition in administrative law can lead to a criminal liability and scope of the ladder one is “plainly narrower”.[53] In this context they argue that only aggressive war as a form of aggression, which requires a state act contrary to international administrative law, a specific intensity in the use of force and an aggressive element (animus aggresionis), can establish criminal liability.  In the Iraq case only the first and the third point are problematic.

In the context of animus aggresionis they require an intention to “annexing or subjugating” the other state and refer to the Nuremberg cases.[54] But is such a view not historically outdated? Today the international community would never accept – at least a permanent – occupation with such a goal. Furthermore, inadequate (aggressive) intentions (political or economic) can be achieved through the military supersession of a government by means of “friendly” political forces in this country as well. Lastly, the possible serious consequences of aggression are the same, irrespective of such an intention.

Secondly, although there were some attempts to argue that the invasion in Iraq was justified under international law, there are no convincing arguments for this. There was no justification under Article 51 UNCh because preemptive self-defense measures are “clearly unlawful under international law”[55] and additionally, the ISG-report in 2004 clearly showed that there never was usable WMD within the Iraq. Such an invasion was also not justified because of the Resolutions 660, 678 and 1441 of the Security Council, although the Security Council would generally have the power to authorize such measures under Article 42 UNCh.[56]

IV. Procedural Problems

Lastly, I want to shortly have a look at two procedural problems which could be relevant in our case – the question as to a court with jurisdiction and whether there are problems with a possible immunity of Mr. Blair can occur.

1. Court with jurisdiction

Firstly, we have to examine a possible jurisdiction of the ICC. How I showed above, the ICCSt didn’t determine a material culpability for the crime of aggression, at least not in 2003. But on the other hand the ICC can also apply customary international law, Article 21 (1) (b) ICCSt. Because of the fact that the United Kingdom is state party to the ICCSt since the 04.10.2001,[57] the court could generally have jurisdiction about Mr. Blair, Article 12 (2) (b) ICCSt. The problem seems to be that the court according to Article 5 (2) ICCSt in 2003 should not have exercised its jurisdiction about the crime of aggression. Insofar we could think about the following interesting question:  Although Article 5 (2) ICCSt stated that the court had no jurisdiction about the crime of aggression, we could ask, whether this provision only refers to the crime of aggression determined in the ICCSt or also to a possible crime of aggression under customary international criminal law? Article 5 (2) ICCSt was not clear or at least not cogent in this context.  An additional problem to take into account would be the principle of complementary of the ICC, which means that the ICC can exercise jurisdiction only in those cases where the domestic state is unwilling or unable to prosecute the crime.[58]

Furthermore, we could think about the installation of an ad-hoc tribunal through the Security Council. Such tribunals were already installed by the Security Council in the Cases of Ruanda and the former Yugoslavia.[59] Inherently, such an action of the Security Council under Chapter VII UNCh would be possible. But if you take into account that that the UK as well as the United States are permanent members of the Security Council and could block such an installation with their veto (Article 27 (3) UNCh), it becomes quite clear that this possibility is not very likely.

Lastly, if you assume that the crime of aggression is punishable under customary international law, also national courts could have jurisdiction. Because of the principle of nullum crimen sine lege scripta this would perhaps not include courts in a civil law system, but at least in countries within the common law system, a prosecution would be possible. A jurisdiction would also not be confined to courts in the United Kingdom, because the crime concerns the international community as a whole and its fundamental values and because of this, a problem in the context of the general possibility of universal jurisdiction should not arise.[60]

2. Immunity

Secondly, you have to think about a possible immunity which could avoid a prosecution of Mr. Blair. Generally, there are two kinds of immunity thinkable: an immunity ratione personae and an immunity ratione materie.[61]

Insofar we have to distinguish first between a prosecution in international and national courts. In the case of international courts, immunity can generally not avoid a prosecution.[62] In the case of a prosecution before a national court we have furthermore to distinguish between the two kinds of immunity. Whereas the immunity ratione materie because of the nature of such a crime could perhaps not prevent a former prime minister from prosecution,[63] the immunity ratione personae, because of the actual office of Mr. Blair as envoy of the UN, would prevent him from a prosecution in a national court, as long as he is in the position.

Conclusion

How I showed about, there seems to be – at least for acts occurred in 2003 – no legal basis for a prosecution of Mr. Blair with regard to aggression. Although we have generally a strong need for an individual punishment of this crime and there is also no doubt that the convicted persons in the context of the World War II trials had deserved a punishment for the committed crimes against peace, we should be carefully with a determination of a customary rule in this context. If we cannot proof the existence of such a rule, in a dogmatic way and with a strict and consequent examination of the two requirements for the emergence of such a rule, an application in an international criminal trial would be quite difficult. If you additionally take into account the other indicated problems and last but not least the political brisance of such a case, a prosecution against Mr. Blair seems to be quite unlikely.

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