The Scottish Parliament has moved to amend their legal framework in such a way that it would make it possible for Tony Blair to face trial for his involvement in the Iraq war under the accusation of war crimes. This comes only a few days after Archbishop Desmond Tutu, a Nobel Peace laureate, has repeated his call for Tony Blair and George W. Bush to be brought in front of the International Criminal Court (ICC) to answer for their war with Saddam Hussein.
The recent call to have the two trialled is just the latest in a series of calls from influential political thinkers (Benjamin Ferencz- one of the chief prosecutors for the US at the Nuremberg trials) , Nobel laureates ( Mohammed ElBaradei) and other influential public figures. All these voices point to the fact that the invasion of Iraq has been an aggressive act, unprovoked, which severely breached international law. Indeed, the United Nations Charter -Article 2 (4) to be more exact- clearly says that states should refrain from the use of force without the mandate of the Security Council or if it is not in a defensive manner. Furthermore, in 2004, the UN Secretary General at the time, Kofi Annan, declared that, from the point of view of the UN Charter, the war represents an illegal act of aggression.
Moreover, the Rome Statute of the ICC defines the act of aggression as "the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state". But there's a twist here. The United States does not recognize the ICC so it would be hard for George W. Bush to face the Court. And there's more. Iraq itself did not ratify the Rome Statute of the ICC so the court does not have jurisdiction over acts committed on Iraqi territory. It is unclear whether Tony Blair, as a leader of a country that does recognize the ICC, can be brought to face the court for his actions over Iraq.
However, legal wrangling does not take away from the severity of their actions. International rules have been broken in attacking Iraq and the leaders of the US and the UK were fully aware of this. In March 2003, Lord Goldsmith, UK Attorney General warned Tony Blair that "aggression is a crime under customary international law which
automatically forms part of domestic law. It might therefore be argued
that international aggression is a crime recognised by the common law
which can be prosecuted in the UK courts" . The war's legality was also decried by Louise Doswald-Beck, Secretary-General of the International Commission of Jurists and even one of George W. Bush's advisers on the issue, Richard Perle, admitted in 2003 that the war was illegal but still justified.
The 'illegal but justified' excuse is also used by Tony Blair when he answers to Desmond Tutu's accusations. He finds it 'bizarre' that people condemn him for overthrowing a dictator that massacred hundreds of thousands of his citizens and uses morality as an argument to justify the invasion. He forgets to mention that Saddam was supported by the US with weapons and funds during the Iraq-Iran war and that he used these weapons against his own citizens once the war was over. And if he truly believes that removing dictators is a good reason to invade a country why stop (or even start, for that matter) with Iraq? The world had its fair share of dictators that were terrorizing their own people. What made Iraq special? (And why is he not coming out in support of an invasion of Syria to remove Assad?)
The answer is that Bush was planning a 'regime change' in Iraq long before the attack took place, even before he won the presidency. 'Rebuilding America’s Defenses: Strategies,
Forces and Resources For A New Century', written in September 2000 by the
neo-conservative think-tank Project for the New American Century
(PNAC) was claimed by W. Bush as a blueprint for his foreign policy plans. The strategy included clear references to overthrowing Saddam Hussein and analysed the ways to achieve this. Commentators point out that George W. Bush never understood why his father had not removed Saddam in the first Iraq war. The Bush administration's defense against the war crimes accusations was that the war was sanctioned by the UNSC's resolution 1441. But resolution 1441 (which can be downloaded here ) only reaffirms older resolutions asking Saddam to comply with the requests from the International Atomic Energy Agency and warns him of 'serious consequences' if he fails to do so. Resolution 1441 does not support any intervention in the country without a further resolution adopted by the UNSC.
As all the arguments to attack Iraq have been proven to be false, no arms of mass destruction being discovered in Iraq, the humanitarian argument is the only one that Tony Blair and George W. Bush can still use. International law, however, is in place in order to avoid just this kind of situations where the blurry lines between what is moral and what is not can end up causing conflict. Was is moral to save the people from a dictator? Was it moral to invade an independent state? Would we look at the situation differently if those involved were the leaders of other countries? This last question is really what it all comes down to. Would the international community acted differently if the leaders of, say, Iran or Russia would have launched a full invasion of a country on humanitarian grounds?
Whether George W. Bush and Tony Blair can be considered war criminals is an issue that should be decided by a judicial court. Maybe they will be able to prove their innocence and to show that international law has not been broken. But until their arguments are heard in an open debate in front of a neutral judge, the questions about their real motives (and the legality of their means) remain up for discussion.