JURIST Guest Columnist Jesse Oppenheim, Brooklyn Law School Class of 2013, offers legal context to Archbishop Desmond Tutu’s recent opinion in The Observer…

On August 28, word leaked out that Archbishop Desmond Tutu had pulled out of an international summit in South Africa because he refused to share a platform with the “morally indefensible” former UK Prime Minister Tony Blair. Days later, Tutu published an opinion article in The Observer explaining his position. The Iraq war “has destabilized and polarized the world to a greater extent than any other conflict in history,” wrote Tutu, who was awarded the Nobel Peace Prize in 1984 and the Presidential Medal of Freedom in 2009. Tutu also commented that “in a consistent world, those responsible for this suffering and loss of life should be treading the same path as some of their African and Asian peers who have been made to answer for their actions in the Hague.” Despite the qualifier that we do not, in fact, live in a more consistent world, many have interpreted Tutu’s words as calling for the International Criminal Court (ICC) to arrest and try former US President George W. Bush and Blair for leading the invasion of Iraq. Such an interpretation of Tutu’s comments indicates a fundamental misunderstanding about the reach and laws of the ICC; bringing such charges would likely be illegal.

First, it is unclear what crimes would be brought against Bush and Blair. Presumably, advocates for such an indictment would seek to charge Bush and Blair for the crime of aggression in a manner similar to the Tokyo War Crimes Tribunal of 1946. However, the Rome Statute, which grants the ICC its powers, currently lacks a codified crime of aggression despite the 2010 Kampala Review Conference’s consensus adoption of such a definition — only one nation, Liechtenstein, has since ratified that definition. As Article 5 subsection 2 of the Rome Statute currently reads:

The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.

Even if such a provision were fully adopted and ratified today, the ICC would still be unable to prosecute Bush and Blair. Article 22 of the Rome Statute codifies the principle of nullum crimen sine lege: “A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court.” Because the 2003 invasion of Iraq would predate a present adoption of a crime of aggression, Article 22 would preclude such a prosecution. Furthermore, Article 24, the non-retroactivity statute, dictates that “[n]o person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute” and that “in the event of a change in the law applicable to a given case prior to a final judgment [sic], the law more favourable [sic] to the person being investigated, prosecuted or convicted shall apply.”

There is, however, a possible argument that the crime could be considered jus cogens — literally, “crimes of thought” — universal atrocities which are prohibited and should be prosecuted regardless of statutory restraints. Such an argument proved persuasive in the Special Court for Sierra Leone’s prosecution [PDF] of Sam Hinga Norman, where the use of child soldiers was found to be prosecutable despite a lack of codified statutory law. However, given the Rome Statute’s codification of other jus cogens — such as genocide, apartheid and torture (child soldiers are prohibited by Article 8, subsection b, part xxvi) — the canon of statutory interpretation expressio unius est exclusio alterius (the express mention of one thing excludes all others) would likely be found to be controlling, thus precluding charges of aggression against Bush and Blair for commencing the Iraq War.

Article 22 raises even further statutory bars to a prosecution of Bush by requiring that the crime occur within the jurisdiction of the court. Article 12 recognizes that, as a precondition to the exercise of jurisdiction of the ICC, the Court may exercise its jurisdiction only if one or more of the States involved are Parties to the Rome Statute or have accepted the jurisdiction of the Court. In other words, a state must submit itself to ICC jurisdiction. Neither the US nor Iraq has ratified the Rome Statute and, therefore, short of a UN establishment of a Special Tribunal, Bush is beyond the jurisdiction of the ICC. Even if either the US or Iraq ratified the Rome Statute today, such a prosecution would be precluded by Article 11, subsection 2: “If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State.”

The UK, however, is a party to the Rome Statute; but, it is still highly unlikely that Blair will be prosecuted by the ICC. Under the principle of complementarity embodied in the Preamble, Article 1 and Article 17 of the Rome Statute, a case is only admissible to the jurisdiction of the ICC when the defendant is citizen to a nation that is “unwilling or unable genuinely to carry out the investigation or prosecution.” Surely, the UK has a sufficient criminal justice system in place to prosecute crimes, so the question becomes that of unwillingness. Article 17, subsection 2 establishes protocols to determine unwillingness; however, it is unlikely that the ICC will find that the UK has been unreasonably unwilling to prosecute a crime which had not yet been codified at the time it was allegedly committed — a prosecution that would contravene the ICC’s own principles and violate Article 22.

Therefore, an ICC prosecution of Bush and Blair is not only highly unlikely but would also most likely be illegal. Presumably, Tutu knows this. He is a highly skilled and experienced diplomat — hence his qualifier that we live in an inconsistent world — and it is neither the place nor the intent of this article to debate the virtues of Tutu’s position, the Iraq War, the ICC or any juxtapositions thereof. This article is intended merely to state that those who call for the utilization of Tutu’s declaration as a starting point for an ICC indictment of US and UK leaders simultaneously seek an unprecedented and illegal expansion of the court’s power.

Jesse Oppenheim is a Notes and Comments Editor of the Brooklyn Journal of International Law.

Suggested citation: Jesse Oppenheim, Despite Claims, ICC Prosecution of Bush, Blair Would be Illegal, JURIST – Dateline, Sept. 13, 2012,http://jurist.org/dateline/2012/09/jesse-oppenheim-desmond-tutu.php.