Agreeing to Disagree

Thomas Jones · Blair's Law

'In a healthy democracy people can agree to disagree.' That's been one of Tony Blair's stock responses to critics of the Iraq war since before it started. He wheeled it out most recently to dismiss Desmond Tutu's call for him and George W. Bush to be 'made to answer for their actions in the Hague'.

Obviously Blair's right, up to a point: the existence of God, who to vote for, the price of jam, what would win in a fight between a weasel and a rattlesnake – all things that people can agree to disagree about. But with some questions – such as, say, whether or not someone's committed a crime – the disagreement has to be settled in a court of law. If you're spotted kneeling over a bloody corpse with a knife in your hand, the police are unlikely to let you go just because you tell them they're entitled to their opinion, even if you're a former prime minister (we're talking about a hypothetical 'healthy democracy' here, remember).

If Blair's as sure of his innocence as he proclaims, he shouldn't have anything to fear from being put on trial. You might even think he'd welcome the opportunity to clear his name and silence his critics once and for all. On the other hand, it's obviously never going to happen, so there's no reason for him to give it much thought. But that needn't stop the rest of us speculating. Were he indicted, and for whatever reason didn't feel like agreeing to disagree with his accusers at the International Criminal Court, he could always run to the embassy of a friendly state that isn't a party to the Rome Statute: Kazakhstan, say, or the United States. Either would surely be happy to offer him asylum. Justice wouldn't be served, but at least he'd have to give up his lucrative touring of the international lecture circuit.


  • 3 September 2012 at 12:48pm
    semitone says:
    Blair's stock response is posturing, but aren't Tutu's comments a posture as well? Can anyone explain how a case is referred to the ICC? Then presumably anyone with evidence of illegality can contact the appropriate authority.

  • 3 September 2012 at 1:08pm
    Leo says:
    I feel like Blair should be made to stand trial, and when he objects to it be told 'well, Tony, if you've got nothing to hide you've got nothing to fear'...

  • 3 September 2012 at 4:24pm
    Neil Kitson says:
    From Statute of Rome

    Article 17
    Issues of admissibility

    1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where:
    (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
    (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;

    (c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;

    (d) The case is not of sufficient gravity to justify further action by the Court.

    2. In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable:
    (a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5;
    (b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;

    (c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.

    3. In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.

    I don't think we have to be international lawyers to get the gist of this stuff. After all, most of those convicted of war crimes at Nuremberg weren't international lawyers. It seems clear that the ICC can act if the UK is unwilling to prosecute Blair (Straw, Brown, Goldsmith...) The proposition that Blair will never be prosecuted seems too pessimistic. I hope.

    • 4 September 2012 at 8:38am
      Phil Edwards says: @ Neil Kitson
      Yes. Boiling it down a bit, one of the grounds for inadmissibility is that the state with jurisdiction has investigated and decided not to prosecute; however, this doesn't apply if the decision not to prosecute is on the grounds of unwilingness or inability to prosecute. Inability doesn't apply here, but unwillingness is judged by (among other things) whether a decision not to prosecute was made for the purpose of shielding the person concerned from criminal responsibility.

      I don't know how cases before the ICC are initiated, but it does look as if a letter to Keir Starmer saying "have you begun proceedings against Tony Blair, and if not, why not?" could set the ball rolling.

    • 4 September 2012 at 10:00am
      semitone says: @ Phil Edwards
      Thanks everyone - much clearer now.

  • 4 September 2012 at 11:38am
    Paul_S says:
    "If Blair’s as sure of his innocence as he proclaims, he shouldn’t have anything to fear from being put on trial. "

    Whatever one's opinion of Blair (and mine is well below sea level), i'm afraid this just isn't true. We might like to say it as useful anti-TB rhetoric. But nonetheless, even somebody convinced of their innocence (even, somebody who *is* innocent) can have many, perfectly sensible and powerful reasons for not wanting to appear in a criminal court of any jurisdiction, especially before all the world's media, with all that would entail during and after.

    Blair may suffer from messianic delusions, but he's not crazy enough to fail to spot an elephant trap when he sees one.

  • 4 September 2012 at 8:46pm
    kearns says:
    There's no possibility of the ICC prosecuting Blair for the crime of aggression as the Court will only be able to exercise jurisdiction over that crime from 2018 at the earliest. He could be done, as per Charles Taylor at the Sierra Leone Court, for complicity (aiding and abetting) in the crimes of British (and possibly US etc) soldiers committed in Iraq. The House of Lords in the Jones Case of 2006 affirmed that British courts could indeed prosecute individuals for the crime of aggression. All's clarified nicely by Prof Schabas here:

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