After Chilcot Report: Will ICC Try Blair, Bush?

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George W. Bush, Tony Blair: war partners.

Will the recent release of the British government’s highly incriminating Iraq Inquiry, commonly called the Chilcot Report, create the final shove to force the International Criminal Court (ICC) to try Tony Blair and George W. Bush for war crimes?

The Report

Sir John Chilcot, a retired British civil servant, chaired a committee of five who, for seven years, reviewed reams of data regarding Britain and Prime Minister Tony Blair’s roles in the U.S.-led Iraqi invasion beginning in 2003. Chilcot publicly presented the report which was published July 6.

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The panel was damning of Blair’s actions on several points regarding the war. Those points included:

  • The UK joined the invasion before peaceful options were exhausted.
  • Blair deliberately exaggerated Saddam Hussein’s threat to the U.S. and UK.
  • Blair promised Bush in writing: “I will be with you, whatever.”
  • The UK military was ill-equipped to invade Iraq.
  • Blair ignored warnings of the invasion’s aftermath.
  • The UK had no post-invasion strategy.
  • The UK was lax in tallying Iraqi civilian casualties, wanting instead to “rebut accusations that coalition forces were responsible for the deaths of large numbers” of Iraqis.

You can search the entire Iraq Inquiry here, including Chilcot’s statement.

Will Chilcot Report join ICC’s other damning evidence?

Chilcot’s panel made no determination, in fact may have been forbidden to, regarding the legality of the UK’s Iraq invasion. But the report is being presented to the International Criminal Court, who will review it.

The question is whether the 2.6 million-word report will join other evidence before the ICC which might lead to trials for Blair and even Bush. That other data is also damning, particularly for Bush.

The ICC

The International Criminal Court is a relatively new body, founded in 2002, created by the Rome Statute, a treaty adopted in 1998 which established four core international crimes: genocide, crimes against humanity, war crimes and the crime of aggression.

Authorities this past week have argued that “crime of aggression” prosecution is not available to the ICC, although that’s not clear why. They speak vaguely, as in this July 7 report from The Washington Post:

In theory, one place where world leaders — both current and former — who have committed war crimes could face trial would be the International Criminal Court, established by the Rome Statute in 2002 to investigate and prosecute when states are “unable” or “unwilling” to do so themselves. Unfortunately, the ICC has a mixed record of going after heads of state. It has tended to pursue only African leaders (in part because of independent war-crimes tribunals in other conflict zones) and struggled to get convictions.

Mark Kersten, a researcher at the Munk School of Global Affairs at the University of Toronto who runs the Justice in Conflict blog, said it is ‘very unlikely’ that Blair will face charges. ‘The ICC cannot investigate or prosecute the crime of aggression, so the invasion of Iraq is out of its remit,’ Kersten said. Thus, one of the most popular complaints about Blair’s decision to go to war in 2003 — that the war was an ‘illegal’ act of military aggression — cannot be judged at the ICC. As things stand now, that act can really be sanctioned only by the United Nations Security Council, of which both Britain and the United States are permanent members.

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But if the ICC can’t prosecute the crime of aggression, deemed the chief crime by the Nazis in World War II, the court can look for the other three areas: genocide, crimes against humanity, and war crimes.

The British law firm Public Interest Lawyers (PIL) went after Blair in 2014, filing a complaint with the ICC. As PIL principal Phil Shiner explained in a Feb. 27, 2014 statement in The Guardian:

…on 10 January 2014 my firm and the European Centre for Constitutional and Human Rights lodged a formal complaint to the ICC about the systemic abuse of hundreds of Iraqis in the period 2003 to 2008 while being interrogated by UK interrogators. The defence secretaries at the material time knew (or ought to have known) that interrogators were being trained to use, and were using, coercive interrogation techniques that were in flagrant breach of international legal standards. But who insisted the UK had an interrogation capability in Iraq that allowed us to punch our weight with our co-illegal aggressors, the US, knowing that a lawful approach to interrogation did not permit the use of such techniques? The complaint to the ICC has been made to explore the potential of criminal accountability for such systemic issues at the very top of the military, civil service and potential chain of command.

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Forceful Continuum

The PIL’s 2014 effort is only a part of the forceful continuum of accusations which should eventually lead to Blair’s, and particularly Bush’s, prosecutions for Iraqi war crimes. We reported in detail in 2014 of condemnations of Bush in our CFR column “A Bush Insider Cites War Crimes Against His President, VP”.

Richard Clarke
Richard Clarke

The CFR column included an accusatory statement from Richard Clarke–who served a brief stint as Bush’s national coordinator for security and counterterrorism; discussion of former U.S. Congressman Dennis Kucinich’s legislation to impeach Bush in 2008, and the results of a 2012 Malaysian trial which convicted Bush, Dick Cheney, and others in the administration of Iraqi war crimes.

Clarke, in an interview on the TV news program “Democracy Now”, stated:

I think things that they authorized probably fall within the area of war crimes. Whether that would be productive or not, I think, is a discussion we could all have. But we have established procedures now with the International Criminal Court in The Hague, where people who take actions as serving presidents or prime ministers of countries have been indicted and have been tried. So the precedent is there to do that sort of thing. And I think we need to ask ourselves whether or not it would be useful to do that in the case of members of the Bush administration. It’s clear that things that the Bush administration did — in my mind, at least, it’s clear that some of the things they did were war crimes.

We also pointed out in that column that 122 states are parties to the ICC, but the United States and Israel have refused to ratify, recognize or adhere to statutes of the court. Because the U.S. is not a state party to the court, no U.S. official can be tried, unless the alleged crime(s) took place in the territory of a state that has accepted the court’s jurisdiction. Iraq is not a state member.

However, in 2006, the ICC’s prosecutor reported that he had received 240 communications alleging various war crimes in connection with the invasion of Iraq. Some of those appear to involve the UK, a state party to the ICC, and the country that worked most closely with the U.S. in Iraq. It’s possible the prosecutor may find the U.S. complicit in UK alleged war crimes, which would be considered a war crime in itself.

All the added data, including the PIL’s complaint, Clarke’s accusation, the Malaysia war-crimes trial convictions, and now the UK’s Iraq Inquiry are evidence which just might push the ICC to prosecute Blair and Bush. But you can bet it will be a courageous move that will counter great political pressure.

If the ICC does rebuff that pressure and go after Blair and Bush, then we might see that courage even move to try President Barack Obama, who has expanded Bush’s efforts, as we described in our column for reality: a world of views: “Obama Widens Carter’s, Bush’s Global-Rule Policies”.