An unfortunate truism: Tony Blair and others will never stand trial over the alleged crime of aggression in taking their respective countries to war in Iraq in 2003. The corollary of this is that the culture of impunity for Western leaders over breaches of international law (Treaties and jus cogens) continues. This rather hackneyed issue has reared its head again following the refusal of the Archbishop Desmond Tutu to share a stage with Mr Blair at a South African forum. Archbishop Tutu should be lauded. Others have criticised the decision to go to war in 2003 yet still remained sycophantic to Mr Blair.
The strongest argument in favour of a prosecution is that Resolution 678 was not capable of revival in 2003, and furthermore that Resolution 1441, on its proper construction, did not authorise military intervention. A further UN Security Council Resolution explicitly authorising war should have been sought. In its absence, the war appears to have been illegal. There are of course compelling arguments in support of the legality of the war, invoking the UN Charter, Rome Statute and international peremptory norms. The position remains that there is a prima facie case for prosecuting Mr Blair and others. Scale this matter down to a less serious offence and remove the politics, Mr Blair would be held to account.
The former Law Lord, Lord Bingham, in his book 'Rule of Law' written after his retirement, expressed his position that the decision to go to war was in serious violation of international law and the rule of law, and demonstrated the difference "between the role of world policeman and world vigilante".
There remain a plethora of commentators who support Blair's decision to remove Saddam. They apply their Raskolnikov-esque utilitarian justification for the war as a "bad-man" being removed. Such people included people I admired, such as the late Christopher Hitchens. Regrettably these people evinced a nihilistic approach to international law (the same approach they criticised the likes of Saddam of invoking). Following the themes from Crime and Punishment, it appears that Blair and others truly believed they were within the "extraordinary" group of people, not required to follow the morals and laws as us "ordinaries" do.
The waging of war cannot simply apply morals whilst choosing to ignore the rule of law. With Iraq there remains a strong case that there was no jus ad bellum - right to war - and thus any decision to proceed to war would be without a legal basis. The status quo is summed up brilliantly by Sir Ian Brownlie QC, former international law barrister: "The overall problem remains. Political considerations, power, and patronage will continue to determine who is to be tried for international crimes and who not". The culture of impunity prevails.
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