Realism, rather than cynicism, is the most appropriate response to the British High Court ruling that former British Prime Minister Tony Blair should not face prosecution for his role in the 2003 Iraq war.
First, there is no crime of aggression in English law under which the former prime minister could be charged. The British parliament could add such legislation to the statute books but has demonstrated no inclination to do so.
Second, Iraq has neither signed nor ratified the Rome Statute, which created the International Criminal Court, so the ICC does not have automatic jurisdiction for crimes committed on Iraqi territory.
Third, there is the question of international appetite for a trial. To prosecute Blair would mean former US President George W. Bush must also be tried, for it was he who led the main perpetrator, the United States, into the war.
So, too, Jose Maria Aznar, Spain’s former prime minister, a prominent backer of Bush’s war. Spain was elected to a non-permanent seat on the UN Security Council two months before the March 2003 invasion and, together with the United States and Britain, proposed a draft resolution to secure international endorsement for war.
Given the above, it is realistic to accept there is no chance of Bush, Blair or Aznar being tried on any of the counts set out in the 1945 Nuremberg war trial indictment, which arguably established an international standard for crimes against peace. Nuremberg brought Nazi high officials to justice in a courtroom and in the court of world opinion, using the legal traditions and practices of four countries. The Nuremberg indictment counts relevant to Iraq are as follows: War crimes, crimes against peace and conspiracy (“to embrace the commission of crimes against peace”).
After the second world war, there was a yearning to secure justice for the systematic, state-sponsored killing of some 6 million European Jews along with millions of non-Jews. A similar sort of yearning — for justice, rather than revenge — repeatedly comes up in relation to the Iraq invasion. The lawyer for Abdul-Wahid al-Rabbat, the former Iraqi general who tried to bring a private war crimes prosecution against Blair, laid out the case the former prime minister should answer. He painted a tragic picture: Hundreds of thousands dead, more than 4 million displaced and a decimated country left in a state of chronic instability.
Faced with this reality, cynicism flourishes. Lina Khatib, head of the Middle East and North Africa Programme at the Chatham House think-tank, captured the depths of hopelessness in the region. “The Arab world long gave up on any repercussions for any US and UK leader on Iraq,” she said. Chris Doyle, director of the Council for Arab-British Understanding, said the British High Court ruling “reinforces the view that exists in the Middle East that Western leaders, be they from the [United Kingdom or United States], are never held to account.”
It is true that in the 14 years since the ICC was established, it has only brought charges against Africans. This has led to allegations the court is unduly, even unjustly, focused on citizens of poor and relatively powerless countries.
A new reality could be fashioned, however. One way for the ICC to be more effective and acquire a bigger footprint is for countries that seek justice to sign up to the court. ICC prosecutors can only begin an investigation if a case is referred either by the UN Security Council or by a ratifying state.
Iraq is not a ratifying state. When Saddam Hussein was in charge, Iraq was one of seven countries that voted against the establishment of the court. It was in fine, if unsurprising, company. The others were Libya, Israel, Qatar, Yemen, the United States and China.
The Palestinian territories did become party to the Rome Statute of the ICC, with the result that the court is investigating the 2014 Gaza conflict for alleged war crimes by the Israeli military.
Afghanistan also ratified the statute, which is why the ICC is investigating suspected crimes against humanity and war crimes on Afghan soil by foreign forces. If that inquiry gathered steam, it would be the first international tribunal to investigate US nationals.
Realistically speaking, that would not result in arrests of US officials because their country has not ratified the statute but it would be a reason to be less cynical about the way the wheels of justice turn.