Bush, Blair, and Iraq: Aggression and the Limits of Justice

Former British Prime Minister Tony Blair (left) and
former US PresidentGeorge W. Bush (right), close allies during
2003 invasion of Iraq    --nickread.co.uk

In the wake of South Africa's Discovery Invest Leadership Summit, calls have increased for former US President George W. Bush and former British Prime Minister Tony Blair, the latter of which spoke at the summit, to be tried at the International Criminal Court for the 2003 invasion of Iraq.  Pressure intensified after Archbishop Desmond Tutu, slated to speak alongside Blair, refused to attend the summit, stating his view that the former leaders used Iraq "to behave like playground bullies and drive [the global community] further apart".

Ultimately, Tutu and many others are pointing out what they see as imbalances in the system of international law--war and aggression are denounced and punished when conducted by less powerful states, but those at the top of the international pecking order seem to be immune to the same pressures.  While basis may exist for Tutu's claims, the torch will not be taken up by international institutions--especially the ICC.  This is not because of bias or political fear; his voice will not fall on deaf or unwilling ears.  The ears of the institution are active, but the hands are immobilized.

In the case of Bush, he cannot be tried because neither the United States nor Iraq is party to the Rome Statute governing the ICC.  Absent a Security Council Resolution, one of these states must be a member for the court's jurisdiction to apply (see our earlier post on Syria).

Former South African Archbishop
Desmond Tutu, who recently accused Blair
of crimes against world peace --Associated Press

But what about Blair?  The United Kingdom has ratified the Rome Statute and a crime by any state party national can be prosecuted by the court.  As mentioned, what Desmond Tutu is denouncing is the crime of aggression, loosely defined as unwarranted military action of one state against another.  The crime of aggression is, indeed, a key part of the Rome Statute.  Unfortunately, the court's jurisdiction on this particular offense will not apply until at least 2017, and only then after a sufficient number of states ratify and agree on a definition for the crime.

The implication is that even with the strongest international pressure, Blair and Bush cannot be brought before the ICC for their involvement in Iraq, at least in the form of current accusations.  For now it is not a matter of unfairness, but a matter of jurisdiction.