John Gittings

"Can we Prosecute Tony Blair?"
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Review: Noah Weisbord, The Crime of Aggression

Noah Weisbord, The Crime of Aggression Noah Weisbord, The Crime of Aggression (Princeton UP, 2019), 257pp.

The Political Quarterly, 91:1, 2020, pp. 245-46.

One question above all demanding an answer will be posed by many British readers as they open this new study of international law and the crime of aggression: can we now prosecute Tony Blair? The same question with a change of principal actor will be posed in the US. We may only have a hazy knowledge of the subject -- and this book shows just how elusive legally the concept of aggression can be to pin down -- but we all remember how Kofi Annan, the UN Secretary-General at the time, described the invasion of Iraq without qualification as an "illegal war". Noah Weisbord is equally forthright at the start of his enquiry: the US had "illegally invaded Iraq" (with Blair's full participation). Benjamin Ferencz, the Nuremberg trial prosecutor who would tutor Weisbord at Harvard, although a proud American also put it clearly: "So the United States went to war, in violation of the [UN] charter". Ferencz, whose experience of Nuremberg led him to campaign all his life for the International Criminal Court (ICC), becomes in this book a touchstone of principle and re-appears effectively throughout its pages.
States can be held responsible for aggression -- a principle first established under the League of Nations and then more firmly in the UN Charter, even though any action to punish or remedy the aggression was corralled by the great powers' insistence on a Security Council veto. Can individuals be similarly held responsible and can effective action be taken against them? Nuremberg was ahead of its time, an "avant-garde moment" according to Weisberg which was only the starting-point. The trials established individual responsibility for the crime against peace as the supreme international crime, and in 1950 the UN General Assembly affirmed the principles of Nuremberg in a resolution which still resonates today. (It would have been helpful if the author had appended it here). Any person who "commits an act which constitutes a crime under international law is responsible therefor [sic] and liable to punishment", whether or not it was a crime under internal law, and such a person is not exonerated by being Head of State or a responsible government official. Nuremberg served as precedent for the ICC but it would take another half century for this to be achieved.
Here as elsewhere the cold war provided a hostile climate: the definition of aggression reached with difficulty by the General Assembly in 1974 contained "blind spots and biases", says Weisbord. In Ferenz's view, its definition (Resolution 3314) was little better than a sieve, and allowing the Security Council to define, subject to veto, whether aggression had occurred was like "asking the fox to guard the chicken coop". The resolution did not even touch on the issue of individual responsibility, focusing only on that of states. Only when the cold war had ended could there be a renaissance of the Nuremberg principle. This post-cold war moment offered an opportunity as significant as those provided by the ending of the two world wars, but this was undercut by a series of new wars that challenged even the existing definitions of aggression. The story since then is one of significant but mixed progress. The setting up of international tribunals on Yugoslavia and Rwanda by the Security Council was modelled on the Nuremberg precedent and the establishment of the ICC in the Rome Statute of 1998 took a big step further. This provided for jurisdiction over the crime of genocide, war crimes, crimes of humanity -- plus fourthly and crucially the "crime of aggression" -- and against any person in authority committing such crimes.
Yet within nine months of the treaty coming into force, the Iraq War was launched by Bush with his "delusional interpretation of international law" -- though "deceitful" would be a stronger word, and with Blair a full partner in the deceit. The crime of aggression, unlike the others set out at Rome, remained undefined and the Court unable to pursue it, until the Kampala Compromise was painfully reached in 2010. In theory at least, individual leaders who planned and executed aggression would now be personally responsible, but the devil of impunity, says Weisbord, lurks in the detail of Kampala. Under the compromise, ICC member states could take advantage of a formal opt-out mechanism, and non-member states could only be pursued with a Security Council referral. Without such a referral, jurisdiction was limited to member states that had not opted out. Nor was the diplomatic struggle over until 2017. Activation of the crucial "fourth crime" was delayed until more difficult negotiations at the end of 2017. Weisbord sums up: "Now, for the first time since Nuremberg, individuals could be prosecuted internationally for illegal war". It had taken far too long to get there.
There has been positive gain from Rome and Kampala, both in the growing acceptance of the principle that former leaders should be held to account for international crimes, and in successful legal actions by the ICC (though not yet for the crime of aggression). Since 2010, there have been attempts by major powers to limit the scope of the ICC further, but Weisbord also explores innovative proposals that could limit the immunity claimed by the strongest nations. This is a challenging area of international law, and although the author tries hard to enliven his narrative, the significance and sequence of all the events he describes is not always easy to grasp. It might have helped to have a straight-forward chronology of his central theme. But that theme could not be more important and this is an important contribution to our understanding.
So what about Tony Blair and all those who planned an illegal war in 2003 with the disastrous consequences so familiar to us? They are off the hook for the simple reason that the definitions of the crime of aggression finally reached at Kampala cannot be retro-actively applied. What has been achieved, Weisbord concludes, is modest so far, but it is "a memorial to the victims of a violent century" and a reminder that humanity should aspire to aim still higher.
John Gittings [ends]

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