HOLYROOD could – and should – introduce retrospective legislation to indict the former prime minister on war crimes over Iraq invasion, argues Jim Sillars
Desmond Tutu was right in naming Tony Blair a war criminal, but wrong about getting him in front of the International Criminal court some day. Lesley Riddoch, writing in these pages this week, appears on sound ground in thinking that Blair is likely to evade trial and punishment for the invasion of Iraq.
In this debate, it is worth considering where the law stands. In the case of R v Jones, which came before the House of Lords in 2006, Lord Bingham stated “customary international law has recognised a crime of aggression”, but the “crime of aggression is not a crime in the domestic law of England and Wales”.
The Crown Office told me a Scottish court would take the same view. The International Criminal Court now has a definition of aggression, but it will not become effective until a year after all states finally agree to include it fully in its statute.
So, Blair is in the clear, it seems. But, as the song goes: “It ain’t necessarily so.” Step forward Alex Salmond’s government, or a bold back-bencher in the Scottish Parliament.
This devolved parliament of ours, devoid of so many powers, has one that can – if used – resonate throughout the world and meet the gravamen of the former archbishop’s charge that while Africans and others in high places get hauled before international courts to answer for war crimes, it doesn’t happen to western leaders.
In claiming “victor’s justice”, Tutu was echoing the words of Hermann Goering at Nuremberg, so far proved right.
Here are examples from a large volume of evidence showing that Blair does have a case to answer.
Regime change through aggressive war is a crime under international law. To give effect to regime change in Iraq required an act of aggressive war. On the eve of war, 18 March, 2003, Blair claimed: “I have never put the justification for action as regime change.”
Before then, in parliament, on 24 September 2002, Blair, dealing with an intervention on whether he supported regime change, replied: “I consider it odd that people can find the notion of regime change in Iraq somehow distasteful. Regime change in Iraq would be a wonderful thing. That is not the purpose of our action.” (My emphasis.)
This is a classic example of being economical with the truth.
In a memo about Iraq dated 14 March, 2002, sent from the United States to Blair by Sir David Manning, his adviser – dealing with his coming trip to the Bush ranch in Texas – wrote: “I had dinner with Condi [Condoleezza Rice, Bush’s national security adviser] on Tuesday… I said that you would not budge in your support for regime change, but you had to manage a Press, a parliament and a public opinion that was different than anything in the States.”
That was followed on 18 March by a memo from our ambassador to Washington, Christopher Myer, to Sir David, by now back in Downing Street, detailing a discussion with Paul Wolfowitz, the US deputy secretary of defence, at lunch on 17 March. “On Iraq, I opened by sticking very closely to the script that you used with Condi Rice last week. We backed regime change, but the plan had to be clever and failure was not an option.”
There is much more evidence available showing Blair was wholly committed to regime change, with his main concern being how to hide that from the British public and parliament and, further, how to manipulate public opinion towards support for what was, plain and simple, aggressive war.
There was the disgraceful dishonesty in the war resolution he put before parliament on 18 March, 2003, claiming: “It has not proved possible to secure a second resolution at the United Nations because one permanent member of the Security Council made plain in public its intention to use its veto, whatever the circumstances.”
The culprit was France’s then president, Jacques Chirac, and remarks in an interview he gave on 10 March.
But Blair’s assertion was not true, on two counts. First, there was not a majority for war on that council. Second, the French threat of veto was not absolute, but on a time scale.
In a long interview, Chirac said: “My position is that, regardless of the circumstances, France will vote ‘no’ because she considers this evening that there are no grounds for waging war in order to achieve the goal we have set ourselves, i.e. disarm Iraq.” (My emphasis.)
When pressed on whether this was France’s final position, Chiraq made clear his desire to give the inspectors more time, but then went on to say that if they came to the Security Council and said they had failed to find weapons of mass destruction: “In that case, it will be for the Security Council and it alone to decide the right thing to do. But in that case, of course, regrettably, the war would become inevitable. It isn’t today.” (My emphasis.)
That was a very different French position from the one that Blair claimed gave him and Bush no option but invasion.
In his book DC Confidential, Myer wrote: “I never interpreted president Chirac’s refusal in March 2003 to accept the draft of a second Security Council resolution authorising war as a refusal for ever and a day … that, at least, is what French diplomats told me in private. They accused the Americans and British of deliberately exaggerating France’s position to justify going to war without further UN cover.”
So, how do we stop this Scot from going, as they say, Scot free from the gravest crime in law, aggressive war? Use our separate legal jurisdiction to import the definition of aggression into Scots law that’s how – either through an amendment to the International Criminal Court (Scotland) Act 2001, or by a short bill and making it retrospective to 2000. Then our Lord Advocate can be asked to indict Blair.
Retrospective? “Repugnant”, I can hear the lawyers cry. Usually, I would agree. But we have to ask if it can ever be right that a leader who, through conspiracy with another power, and who paved the way to aggressive war through lies, distortions and manipulation of a parliament and people, should go unpunished while the victims of that war are either lying destroyed in their many thousands, or are living with the terrible consequences of it?
War criminals are in a different category for all others who unleash death on humanity. They should never be safe.
Retrospective law is said to be abhorrent when conduct (legal at the time) is made criminal afterwards. That doesn’t fit Blair’s case. He knew aggressive war was a crime. He believed he was safe, there being no legal system that could touch him. There is one now – ours.
At Westminster, on Iraq, Alex sought to impeach Blair. He had no majority down there. He has a up here. From Scotland Salmond, or a back-bencher from any party with a private bill, can send out a much needed message, to Desmond Tutu and millions of others who think we preach but will not practice the law against international crimes if the leaders are ours, that they are wrong.
Those MSPs who marched under the slogan “Not in our name” now have a chance to make it stick. They are planning a bust for Blair at Westminster. We should be planning a trial.