Words are important. Words are more than just a hammer to nail home a message. They have connotations, associations, subtleties. The importance of word choice is clear to anyone who’s ever read anything. Glittering and glistening might, on a very functional level, have the same meaning, but their usage and connotations differ dramatically.

That’s why messaging in media is incredibly important. It’s why if we’re constantly told migration is a problem, people think it’s a problem. It’s why David Cameron shouldn’t be surprised that his describing thousands of people fleeing conflict as a ‘swarm’ has inculcated a simmering resentment towards ‘others’ in British society, leading to the Pyrrhic triumph of populist lies.

With the Chilcot Inquiry set to release its report on Wednesday and taking what might be said to be a spiteful attitude to the myriad issues surrounding the Iraq War (You wanted a report? Well, have all the reports! Have two and a half million words worth of report! Have three times the length of the bible! Happy now, you demanding bastards?) one notable area it won’t report on is the legality of the war, or indeed on any potential criminal responsibility of the main players.

And the reason I bring this up in relation to words and their import is that the terms ‘Tony Blair’ and ‘war criminal’ have been bandied about in the same sentence many times by many people over the last decade, without people having a full justification for doing so or indeed understanding what either of those terms mean.

Whilst I can’t hope to explain Tony Blair, if such a feat is in fact possible before he metamorphoses into a new variety of human cockroach, I can attempt to shed some light on the international legal regime surrounding the use of force. The reason this matters is the same reason there’s a debate about the use of the term ‘genocide’. The impact of words can become devalued if their use becomes commonplace or normalised, such that the fact that you’re accusing Tony Blair of quite heinous atrocities becomes forgotten in signalling that you’re the right kind of progressive vegetarian feminist to the hot girl at the house party.

He might well be a war criminal, but casual dilution of discourse provides an element of dissociation from its full connotations. For a term to actually mean something, you need to have an understanding of what it is and what you mean when you say it.

And if it’s blatantly wrong to do so, because ole’ Tone isn’t actually a war criminal, then don’t say it! If the aforementioned hot girl happens to know anything about international law, then you’ll look like a right chump.

Helpfully, though, whether or not Tony Blair is a war criminal is the subject of this post (as the discerning and erudite reader may well have already surmised). So, read on if you want to be the irritating ‘well, actually…’ guy at your next house party and alienate any potential friends.

The Legalese

The starting point for any discussion on international law is nearly always the UN Charter. Signed and ratified by nearly every nation in the world, it’s the closest we’re going to get to a written constitution, since most of it is accepted to be declaratory of the state of international law as a whole. The relevant bits for this discussion are Article 2(4) and Chapter VII. Art 2(4) says:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

To paraphrase, the use of force is illegal. Chapter VII provides for some exceptions to this, namely that the Security Council (UNSC) can legitimise the use of force (Art 42) or that the use of force in self-defence is permitted (Art 51), subject to some constraints.

Importantly, the UNSC is only allowed to use force if it considers “measures not involving the use of armed force” are “inadequate or would prove to be inadequate”. There must be a positive decision by the UNSC to allow for the use of force. Moreover, self-defence is only permitted “if an armed attack occurs against a Member of the UN”, and only if the UNSC hasn’t already taken measures. This has been interpreted to allow states to defend themselves in the face of an imminent attack rather than waiting until one actually occurs, but does not encompass potential attacks or possible threats to a state. Pre-emptive strikes are generally illegal, for obvious reasons.

The accepted text on War Crimes is the Rome Statute of the International Criminal Court (ICC), introduced in 1998 to cover international crimes in general. Previous texts and bodies (e.g. the International Criminal Tribunal for the Former Yugoslavia, or ICTY) were as limited in scope as the name implies. Lacking any specific body to adjudicate over Iraq, any prosecution for war crimes brought against Tony Blair would have to be brought to the ICC.

Skipping over jurisdiction and admissibility (in basic terms the competence of the ICC to try people) Art 8 defines war crimes within the context of the ICC. I’ll note here that I’m skipping jurisdiction and admissibility in large part because they’re both technical and dull; what’s at issue is whether Blair is a war criminal in an international legal sense or not, without getting into whether there’s a remedy. Feel free to load up the Rome statute and have a go at the procedural questions for yourself, though.

/crickets.

No?

Well anyway, for our purposes, war crimes are “Grave breaches of the Geneva Conventions” or “Other serious violations of the laws and customs applicable in international armed conflict”, per Arts 8(2)(a) and (b). The other bits and bobs of Art 8 don’t apply here, as they refer to non-international armed conflict; the UK’s involvement in Iraq, even when fighting insurgency, always involved operating on foreign soil and was thus always internationalised.

Various examples of these violations are given. For this, suffice to say that there is a lengthy wikipedia page entitled “Iraq Prison Abuse Scandals“. It’s probably safe to assume that violations of the laws of war were committed by British forces in Iraq. In an actual prosecution, this would require lots of proof and such, but this is a hypothetical on a blog, so I can assume what I like.

For someone to be liable for a crime, they have to be criminally responsible – you can’t be guilty if you had no involvement. The article that sets out individual criminal responsibility is Art 25, and is the one that generally applies to the actual actors involved in committing the crime. Basically, you’re liable if you commit a crime, order for a crime to be committed, aid or abet the commission of a crime, or are part of a group acting towards the commission of a crime.

Since this might not capture the full reality of international crimes, article 28 outlines the responsibility of commanders or other leaders. A political leader like Radovan Karadzic, who commanded an army that was committing massive violations, but who nevertheless might not have ordered that such violations be committed, could be caught under this.

Art 28(a) explicitly refers to military commanders, and so we can safely disregard its application to Blair. Art 28(b) reads:

With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:

(i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;

(ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and

(iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

So, where violations are committed by the subordinates of a civilian commander, the leader must have known or consciously disregarded clear information of the commission of crimes; had responsibility for and control of the actors involved; and didn’t take steps to prevent the commission of such crimes. There’s quite a lot involved, reflecting the fact that civilian leaders might not have as much control over military forces as their uniformed counterparts.

To quickly deal with the Geneva Conventions, they only provide that states “enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed”, grave breaches of those Conventions. There’s no provision on the responsibility of leaders who didn’t directly order violations.

So that’s a lot of jargon and nonsense. Does any of it render Tony a war criminal?

Teflon Tony

To deal with the issue of the Rome statute first; no, nothing in there indicates that Tony Blair, even if a prosecution were brought before the ICC in a jurisdictionally valid and admissible case, could be considered a war criminal. For all that he’s a bastard, he was so far removed from having actual knowledge of the day-to-day activities of troops and having effective control over the actions of individual soldiers and units that any criminal responsibility seems far fetched.

The requirements in Art 28(2) impose the condition that he would have to have effective responsibility for and control over the actions of individual soldiers; as a civilian, even if he knew of violations being committed by British soldiers (as seems possible) and worked to cover them up (as would be likely if he did know) he never had the level of control over the British military that would enable him to give actual orders to soldiers.

Effective control has a wider meaning than the ability to issue orders, it might be argued. This is true, in that it requires control be effective in a very practical sense rather than a formalistic understanding of the term; however, that would require that Blair had the ability to make commands over the tactical disposition of British troops. That’s something that generals did, not politicians, and while prosecutions might be able to be brought against military commanders, Blair never had enough control over the activities of British forces to make him liable for violations they committed.

So as much as I hate to break it to everyone, Tony Blair can’t be considered a war criminal in the eyes of the ICC. There’s a provision introducing a new crime of aggression that might capture what Blair did, but that isn’t in force yet and wouldn’t apply retroactively anyway. The ICC itself has stated repeatedly that the decision to go to war is beyond its ambit.

This crime of aggression would encompass “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations”. So, say, the decision by a political leader to go to war where that war is illegal under the UN Charter.

Since all wars are illegal under the UN Charter unless authorised by the UNSC or undertaken in self-defence, it would seem that Blair probably was guilty of this. There was never explicit authorisation from the UNSC to invade Iraq; the Resolution the Coalition relied on to provide justification was so vague that the UK government’s attorney general, Lord Goldsmith, suggested they would need a new resolution to go to war. Nor was there any threat of an attack, imminent or otherwise, to justify self-defence, something Blair well knew. It was so blatant that Kofi Annan had no hesitation in describing the war as illegal. Since there’s no crime of aggression on the ICC’s books yet, though, nothing can be done.

In sum, Tony Blair probably can’t be described as a war criminal. I’d welcome an argument based on the Nuremberg Tribunals that Blair is guilty of a crime against peace (somewhat similar to the crime of aggression outlined above) but those tribunals were so flawed and one-sided that drawing precedent from them is, at best, cherry picking.

On the other hand, Blair is responsible for initiating an illegal war and causing the deaths of hundreds of thousands of people. So he may not be a war criminal, and it may be inaccurate to describe him as such. But he’s still a dick.

Image Credit: The Independent

(And yes, “Tony Blair” and “War Criminal” being repeated over and over might give me a bit of SEO traffic. Woop!)

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One thought on “Is Tony Blair a War Criminal?

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