The Observer today reports that Archbishop Desmond Tutu 'has called for Tony Blair and George Bush to be hauled before the international criminal court in The Hague'. They're evidently struggling at that newspaper to find an issue of topical interest. Their report is based on this piece, also in the Observer and which is open to the construal that indictment before the ICC is what Tutu is indeed calling for. But what a sorry hotchpotch his article is, for a man claiming the moral authority of some law, among other things, to justify his attitude to Tony Blair.
Tutu, naturally, is entitled to his view of the Iraq war - he writes of the 'immorality of the United States and Great Britain's decision to invade Iraq' - as he is entitled, equally, not to participate in conferences and other events in which Blair is involved. I don't plan to rehearse once more the moral arguments for and against removing Saddam Hussein's regime, though it should be clear that no one gets tried before the ICC just because some people think they've behaved immorally. However invoking - as he does in his denunciation of Blair - law as well as morality, Tutu ought to know that the content of the law at any given time isn't just what he happens to want it to be. Someone committed to the rule of law must surely know that.
OK, so here is the charge sheet:
On what grounds do we decide that Robert Mugabe should go [to] the International Criminal Court, [but] Tony Blair should join the international speakers' circuit...
The cost of the decision to rid Iraq of its by-all-accounts despotic and murderous leader has been staggering, beginning in Iraq itself. Last year, an average of 6.5 people died there each day in suicide attacks and vehicle bombs, according to the Iraqi Body Count project. More than 110,000 Iraqis have died in the conflict since 2003 and millions have been displaced. By the end of last year, nearly 4,500 American soldiers had been killed and more than 32,000 wounded.
On these grounds alone, in a consistent world, those responsible for this suffering and loss of life should be treading the same path as some of their African and Asian peers who have been made to answer for their actions in the Hague.
But even greater costs have been exacted beyond the killing fields, in the hardened hearts and minds of members of the human family across the world...
I'll get to some of the incidental features shortly, but the essence of it is that Blair was co-responsible for initiating a war with very bad consequences and for which there was no proper authority, no legal legitimation. Even if one does not challenge this view, though it isn't a view shared by all international lawyers and other legal scholars, the principal crime for which Tutu wants Blair and Bush tried would have to be the crime of aggression (see 1(d) under Part 2 here); and that crime is not yet indictable before the ICC. It is a point I've made several times before on this blog, but it is widely ignored by the 'Blair to The Hague' lobby; you might think it was a minor technical issue. Even Sir Geoffrey Bindman, who does know better, rather slid over this point on Radio 4's Broadcasting House this morning: he was talking about a prosecution for the crime of aggression and said, rightly, that this has now been defined by the ICC and would be justiciable once ratified; he then added, as if it made no difference to the matter under discussion, that prosecution isn't possible at the moment. If I may add something Bindman left out: even after ratification, the law won't be retroactive; the ICC will have jurisdiction over crimes of aggression, but 'only over those committed one year after 30 States Parties have ratified the newly-made amendment'.
Those who opposed the Iraq war as 'criminal' may regret the above facts but if they also favour the rule of law they shouldn't be wanting Tony Blair tried by the ICC. Unless, of course, they're not too pernickety about the principles governing the proper application of law. If one takes Desmond Tutu at his word in today's Observer article, he does't seem all that pernickety about it. He can be read as proposing that Blair and Bush are legally responsible for those killed not by US and UK forces, but by others, including in terrorist attacks. Tutu, indeed, goes so far as to suggest that 'the hardened hearts and minds of members of the human family' are all Blair and Bush's fault as well. He has an elastic concept of guilt. So far as morality is concerned, that's his business. So far as law and the specific morality of law are concerned, it's not only his.
