To prosecute Tony Blair or George W. Bush or others responsible for the criminal attack on Iraq, or other top officials for other recent wars, does not require the International Criminal Court (ICC).
It is commonplace to insist that the ICC cannot handle the supreme crime of aggression, although it might at some point in the future. The United States is also believed to be immune from prosecution as a non-ICC member.
But this focus on the ICC is a sign of weakness in a global movement for justice that has other tools readily available. When the losers of World War II were prosecuted, there was no ICC. The ICC’s existence does not impede anything that was done in Nuremberg or Tokyo, where the crime of making war was prosecuted by the victors of World War II under the Kellogg-Briand Pact.
Nor does the existence of the UN Charter throw up any obstacles. The invasion of Iraq (and every other recent Western war) was just as illegal under the UN Charter as under Kellogg-Briand.
Nor does one have to go back to Nuremberg for a precedent. The special tribunals set up for Yugoslavia and Rwanda prosecuted the waging of war under the name of “genocide.” The notion that the West cannot commit genocide (anymore) is pure prejudice. The scale and type of killing unleashed on Iraqis by the 2003 coalition perfectly fits the definition of genocide as routinely applied to non-Westerners.
The special tribunal on Rwanda is also a model for addressing the lies and propaganda that are such a focus of the Chilcot Report. As at Nuremberg, the propagandists were prosecuted in Rwanda. While Fox News executives should certainly be prosecuted for sexual harassment where merited, in a fair world in which the rule of law were applied equally, they would face additional charges as well. War propaganda is as illegal under the International Covenant on Civil and Political Rights as war was under Kellogg-Briand.
What we are lacking is not the legal ability to prosecute, but the will power and the democratic control of institutions. In war or genocide, as with torture and other atrocities constituting “the evil of the whole,” we are dealing with crimes that can be prosecuted in any court under universal jurisdiction. The possibility that U.S. or UK courts are going to handle this matter themselves has long since been ruled out, freeing the courts of any other nation to act.
Now, I’m not against prosecuting Blair before Bush. And I’m not against prosecuting Blair for minor components of his crime before the entirety. But if we wanted to end war, we would pursue those lesser measures with an openly expressed understanding of what is actually possible if only we had the will.
When France, Russia, China, Germany, Chile, and so many others stood against the crime of attacking Iraq, they acknowledged the responsibility they have shunned ever since of seeking prosecution. Do they fear the precedent? Do they prefer that war not be prosecutable because of their own wars? Imagine how shortsighted that would be, and how ignorant of the damage they do to the world by allowing the truly monstrous warmakers to walk free.