04 September, 2012

Tutu and Blair -~ The International Criminal Court

The refusal of Archbishop Desmond Tutu to attend a conference along with former Prime Minister Tony Blair made headlines -Why I had no choice but to spurn Tony Blair - The Guardian 2nd September.  Tutu went further and argued that Blair and Bush ought to be tried by the International Criminal Court - The Telegraph 2nd September  - Archbishop Tutu - Try Blair for War Crimes.  The actions of Blair and Bush in relation to Iraq will always be controversial and debate continues as to whether the invasion of Iraq (a sovereign State) in 2003 was lawful.  However, this post is not concerned with either the legality or the "morality" of the war but only with the question of the ICC's jurisdiction since trials are only possible where the court has jurisdiction.

The United States of America has not accepted the court's jurisdiction and also Iraq is not a States Party.  The United Kingdom became a States Party on 4th October 2001.  The court only has the jurisdiction granted to it by the Rome Statute on the International Criminal Court - see ICC website - jurisdiction and Court's Statute.

The court's jurisdiction:

The Court does not have universal jurisdiction.*  The Court may only exercise jurisdiction if:
  • The accused is a national of a State Party or a State otherwise accepting the jurisdiction of the Court;
  • The crime took place on the territory of a State Party or a State otherwise accepting the jurisdiction of the Court; or
  • The United Nations Security Council has referred the situation to the Prosecutor, irrespective of the nationality of the accused or the location of the crime.

    It would seem that only the first of those points applies to Blair.  Bush would seem to be completely safe from the tentacles of the court.

    Furthermore, the ICC has no power to act in relation to events before 1st July 2002.  Note also the principle of "complementarity."
The crime of aggression is often mentioned as a possible basis for indicting Blair.  As a result of a conference held in Kampala in 2010, the crime of aggression is now defined in Article 8 (bis) of the Statute - see ICC Now - Delivering on the promise of a fair, effective and independent Court The Crime of Aggression.

The Kamapala conference also agreed that the Court will not be able to exercise its jurisdiction over the crime of aggression until:

·        at least 30 States Parties have ratified or accepted the amendments; and
·        a decision is taken by two–thirds of States Parties to activate the jurisdiction at any time after 1 January 2017.

* See Ministry of Justice announcement relating to Universal Jurisdiction.  English law now requires the consent of the Director of Public Prosecutions before an arrest warrant may be issued based on universal jurisdiction.  - Police Reform and Social Responsibility Act 2011 section 153

List of States Parties

European Journal of International Law - Complementarity 

George Monbiot - The Guardian 3rd September  - We're one crucial step closer to seeing Tony Blair at The Hague

Haifa Zangana - The Guardian 3rd September - Why is Iraq now immune from criticism over appalling human rights record?

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Man on the Village Green said...

Extremely helpful. Thank you.

P.S. Standard drafting practice would be to leave 'bis' ('ter' etc.) out of brackets, i.e. 'Article 8 bis'. The confusion may arise from the fact that in many instances (and especially in EU legislation) 'bis' is translated or rendered in English as (a) : thus 'Article 8(a)'. The Statute of the ICC prefers the Latinate formulation, which certainly has the advantage of avoiding confusion when references are made to it in different languages.

ObiterJ said...

I agree - no brackets !

José M. López Sierra said...

Dear Partner,

Since the United Nations determined in 1960 that colonialism is a crime against humanity, there is no longer a need for plebiscites. The solution is to give Puerto Rico her sovereignty.

But being the United States government does not want to, it continues to advocate the use of plebiscites to find out what Puerto Ricans want. Even if 100% of Puerto Ricans would want to continue being a US colony, Puerto Rico would still be obligated to accept her sovereignty to then decide what she wants to do.

The only thing these plebiscites are good for is to divide Puerto Ricans. A Puerto Rican didn’t invade us to make us a colony. When will we understand that we need to unite?

This is why we must peacefully protest at least 3 times a year until Puerto Rico is decolonized!

José M López Sierra