Rather to my surprise, I find myself in agreement with Desmond Tutu. Not a man who I admire much, on the whole. But I think he is right that Bush and Blair should face charges before the International Criminal Court for their roles in initiating the Iraq War.
By and large, I reckon that the 1/3 rule applies to warfare: about one third of the wars that are actually fought, should be fought. I have no truck with out-and-out pacifism. It was right for the Brits to fight the Falklands War to reverse the Argentinian invasion of those islands. And it was right for the Americans and the British to reverse Saddam Hussein’s invasion of Kuwait. But most wars are dumb. And also, these days, illegal. It is now illegal for a nation to just declare war and merrily launch its missiles. And a very good thing that is too, on the whole.
In the very old days, domestic disputes were resolved by force. If your neighbour took your land, you mustered all the armed men you could find and commenced an action to recover it. But for really quite a while now, a better course has been followed: you sue in the law courts and, for all its imperfections, the legal route is greatly preferable to the military route. The courts, albeit rather slowly and inefficiently, punish the wrongdoer. And if your neighbour ignores the court’s ruling, he gets arrested for contempt of court, and if appropriate, sent to prison for a while.
And so also these days in international affairs. By the Rome Statute (which sets outs the rules for the ICC). The jurisdiction is as follows:
Crimes within the jurisdiction of the Court
The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes:
(a) The crime of genocide;
(b) Crimes against humanity;
(c) War crimes;
(d) The crime of aggression.
The last of these is the most recent; aggression essentially includes any war that is unsupported by UN sanction:
Crime of aggression
1. For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.
2. For the purpose of paragraph 1, “act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression:
(a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof;
(b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;
But the definition of war crimes is also pretty broad, and includes:
(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:
(i) Wilful killing;
(ii) Torture or inhuman treatment, including biological experiments;
(iii) Wilfully causing great suffering, or serious injury to body or health;
(iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
(v) Compelling a prisoner of war or other protected person to serve
And also under Article 8(2)(b):
(iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive …
Given the boasts of the Americans about “shock and awe” (about which particular point they are right) it can hardly be denied that the invasion necessarily involved wilful killing, wilfully causing great suffering, and incidental loss of life or injury on a pretty massive scale. Estimates of how many Iraqis were killed range from around 100,000 to a million or so.
So, what is the supposed justification? It is Security Council Resolution 1441, which, after a finding that Iraq was out of line and a stern finger wagging as follows:
1. Decides that Iraq has been and remains in material breach of its obligations under relevant resolutions, including resolution 687 (1991), in particular through Iraq’s failure to cooperate with United Nations inspectors and the IAEA, and to complete the actions required under paragraphs 8 to 13 of resolution 687 (1991);
2. Decides, while acknowledging paragraph 1 above, to afford Iraq, by this resolution, a final opportunity to comply with its disarmament obligations under relevant resolutions of the Council; and accordingly decides to set up an enhanced inspection regime with the aim of bringing to full and verified completion the disarmament process established by resolution 687 (1991) and subsequent resolutions of the Council…
gets to the meat as follows:
11. Directs the Executive Chairman of UNMOVIC and the Director-General of the IAEA to report immediately to the Council any interference by Iraq with inspection activities, as well as any failure by Iraq to comply with its disarmament obligations, including its obligations regarding inspections under this resolution;
12. Decides to convene immediately upon receipt of a report in accordance with paragraphs 4 or 11 above, in order to consider the situation and the need for full compliance with all of the relevant Council resolutions in order to secure international peace and security;
13. Recalls, in that context, that the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations;
14. Decides to remain seized of the matter.
In other words, it is clear that if Iraq did not comply with this final warning, the matter was to come back to the Security Council. And it absolutely clear that this is how the resolution was understood at the time and the Americans were then clear that this was not to be treated as a “trigger” resolution, breach of which would automatically sanction war. Their ambassador said that the resolution:
contains no “hidden triggers” and no “automaticity” with respect to the use of force. If there is a further Iraqi breach, reported to the Council by UNMOVIC, the IAEA or a Member State, the matter will return to the Council for discussions as required in paragraph 12.
So did the ambassador for the Brits:
We heard loud and clear during the negotiations the concerns about “automaticity” and “hidden triggers” – the concern that on a decision so crucial we should not rush into military action; that on a decision so crucial any Iraqi violations should be discussed by the Council. Let me be equally clear in response… There is no “automaticity” in this resolution. If there is a further Iraqi breach of its disarmament obligations, the matter will return to the Council for discussion as required in paragraph 12. 
So for the Americans or the Brits now to assert that this resolution did in fact automatically authorise an invasion without a further resolution is just plain bollocks. Blair (who used to be a lawyer) says the point is arguable: it is not arguable at all. The war was plainly illegal. That is the view of the vast majority of authoritative opinion, including Kofi Annan (then Secretary-General of the UN) and Lord Bingham, (then the most senior UK judge).
So, will any court do anything about it? Well, the Malaysians have for a start: last November their Kuala Lumpur War Crimes Tribunal did hear a prosecution case against Bush and Blair (neither of them turned up to their trial, of course) and made this finding and order:
We therefore find that the charge against the two accused is proved beyond reasonable doubt.
The two accused are, therefore, found guilty as charged and the two accused are accordingly convicted on the charge.
1. The Tribunal in accordance with Article 31 of our Charter, recommends to the Commission to file reports with the International Criminal Court against the two accused.
2. The Tribunal in accordance with Article 32 recommends to the Commission that the name of the two convicted criminals be included in the Commission’s Register of War Criminals and publicized accordingly.
So it might be wise for both Bush and Blair to give Malaysia a wide berth for the rest of their lives. And if other countries follow Malaysia’s lead, the list of safe place for Bush and Blair to travel to on their holidays might end up even shorter than that of Julian Assange.
There are lots of wars. Why prosecute for this one? Because, as Desmond Tutu says, of the seriousness of its consequences, which has caused and will cause massive numbers of people to lose their lives as the antipathy caused by the war is played out.
Is it relevant that Bush and Blair were acting not only illegally but stupidly? The great majority of military wisdom was against the invasion – they realised that whilst it would be possible to successfully go in, it would be very hard successfully to then pull out. And that is the fundamental problem. Instead of leaving a secular if unpleasant dictator in place, they have breathed life into the embers of Islamic fanaticism, and it will be a long time before the fire thereby lit is burned out. In the event, of course, the fact that weapons of mass destruction which were supposed to be the casus belli (a thin excuse in any case – which would have served rather better if excuse had been needed to invade Israel) never existed is simply an aggravating factor.
The tragedy is that the war has caused a deep rift between Islam and the West. The best way to heal it might well be to show that international justice is not the puppet of the West. Just as the best way to deal with a neighbour who violates your family and your property at home is not to start a Sicilian-style vendetta, but to have him dragged before the court.