On September 2nd Desmond Tutu, a Nobel Peace Prize Laureate and the retired South African Anglican Archbishop, said, “The immorality of the United States and Great Britain’s decision to invade Iraq in 2003, premised on the lie that Iraq possessed weapons of mass destruction, has destabilized [sic] and polarised [sic] the world to a greater extent than any other conflict in history.” Therefore, Tutu continued, “In a consistent world, those responsible for this suffering and loss of life [George W. Bush and Tony Blair] should be treading the same path as some of their African and Asian peers who have been made to answer for their actions [at the International Criminal Court] in the Hague.”
These remarks in London’s Observer newspaper followed Tutu’s withdrawal last week as a speaker at a conference in South Africa because Tony Blair was also to be a conference speaker.
Tony Blair immediately responded to Tutu’s comments. Blair said, Tutu had repeated “the old canard that we lied about the intelligence [on Iraq] is completely wrong as every single independent analysis of the evidence has shown.” In addition, according to Blair, “to say [as Tutu had] that the fact that Saddam massacred hundreds of thousands of his citizens is irrelevant to the morality of removing him is bizarre.” Finally Blair claimed that “despite the problems, Iraq today has an economy three times or more in size with child mortality rate cut by a third of what it was.”
However morally appropriate Tutu was on his criticism of the decision to start the Iraq war, his call for ICC prosecution of Bush and Blair is not legally well founded.
That was the legal conclusion on February 9, 2006, by the ICC’s Office of the Prosecutor in response to many communications expressing concern regarding the launching of military operations and the resulting human loss. This conclusion was documented in a detailed memorandum by the ICC Prosecutor that set forth the following reasons:
- The ICC did not have jurisdiction over any actions by Iraqi or U.S. citizens because Iraq and the U.S. were not States Parties to the Court’s Rome Statute.
- Although the Court had jurisdiction over the crime of “aggression” under the Statute’s Article 5, that crime had not yet been defined and thus could not be a basis for any charges.
- Although there was information indicating war crimes of intentional killing and inhuman treatment had been committed, the information did not suggest that they were “part of a plan or policy or as part of a large-scale commission of such crimes” as required by Article 8 of the Statute.
- There was no information that the Coalition forces had an “intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such”, as required in the Statute’s definition of the crime of genocide (Article 6).
- There was no information of “a widespread or systematic attack directed against any civilian population” as required in the Statute’s definition of crimes against humanity (Article 7).
Therefore, the Office of the Prosecutor stated the statutory requirements for initiating a formal investigation of the situation in Iraq had not been satisfied.
 As discussed in a prior post, a definition of the crime of aggression was agreed to at the Court’s June 2010 Kampala Review Conference, but its actual use by the Court will not happen until after January 1, 2017 and only if there is a two-thirds vote of approval of the amendment by the Court’s Assembly of States Parties and ratification of the amendment by at least 30 States Parties.
 There are many posts about the ICC on this blog. To find them, just click on “International Criminal Court” in the tag cloud to the right of this post.
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