London media is buzzing today with reports that Desmond Tutu has called for Tony Blair to be prosecuted at the International Criminal Court for the invasion of Iraq. For the record, here is Archbishop Tutu's statement. It was apparently prompted by a conference in South Africa where Blair was being paid GBP 150K to speak and where Tutu was speaking free of charge. Tutu walked out because he refused to be associated with Blair.
When I heard the news of this on BBC4 this morning, I was curious at what appeared to be a misunderstanding of the jurisdiction of the International Criminal Court. Tutu was angered about the invasion of Iraq. Although I share his feelings on this, I also know enough about the legal framework of the Court to realize that Blair cannot be prosecuted for the crime of aggression. Regrettably, the Court cannot exercise jurisdiction over the crime of aggression until the Kampala amendments are adopted and, in any case, not before 2017, so there is no question of it prosecuting a crime of aggression perpetrated in 2003.
But in fact, despite the comments in the press, Tutu did not call for Blair to be prosecuted by the International Criminal Court. He merely made a very important and valuable point.
It is sheer hypocrisy to prosecute African leaders for various violations of international law while people like Blair continue to be feted as distinguished statesmen on the international lecture circuit. Although Blair cannot be prosecuted by the International Criminal Court, there are very strong reasons to believe that he perpetrated the crime of aggression in 2003. This is the act described by the International Military Tribunal as 'the supreme international crime'.
Blair can perhaps be prosecuted for war crimes and crimes against humanity committed by British troops in Iraq. On this, there is no doubt about the jurisdiction of the International Criminal Court. Proving his liability as the leader may be challenging, although the recent conviction of Charles Taylor sets out legal principles that make this simpler.
To date, the Prosecutor of the International Criminal Court has chosen to give the British a get out of jail free card for their conduct in Iraq. It is an unfortunate exercise of prosecutorial discretion. But in any case Blair cannot be prosecuted for aggression before the International Criminal Court as the law now stands.
The point Desmond Tutu is making is that there is a terrible double standard at work. We have an International Criminal Court that is focussed on Africa. Yet perhaps the most serious crimes of our time are committed outside Africa, by non-Africans, as Desmond Tutu explains. He is fed up with hearing talk about international justice and accountability when it is one-sided. His eloquent and principled voice deserves our attention.