International Criminal Court And

The International Criminal Court and Blair/Bush: Amy Ross

Guest Comments by Amy Ross

“The International Criminal Court and Blair/Bush”

“Regarding accountability and the ICC: It does seem that the Blair administration was much more cognizant of the potential conflict with the ICC. Indeed the prominent British human rights lawyer Cherie Booth (aka Mrs. Blair) wrote in an essay on the ICC in 2003 that “…it is of singular importance to note that no one– not even a serving head of state –will be able to claim immunity from the jurisdiction of the Court.” (in “From Nuremberg to The Hague: The Future of International Criminal Justice,” Philippe Sands editor.)

Britain’s House of Lords had previously asserted in the Pinochet case (1998) the lack of immunity for certain crimes under international law: the judges stressed that
accountability was ESPECIALLY important for state figures.

However, the ICC is unlikely to open a case against the British in Iraq. For starters, the member states have only agreed to include the crime of aggression in the ICC’s statute (alongside war crimes, crimes against humanity and genocide) in 2009. At the ICC’s first major press conference in The Hague (July 16 2003), the Chief Prosecutor acknowledge that nearly 1/4 of the ‘communications’ his office had received in the institution’s first year concerned complaints related to Iraq. But, said Mr. Moreno-Ocampo, the ICC did not envision taking up these cases due to the principle of complementarity, which says that national courts have the first chance to investigate and prosecute incidents attributed to its nationals. It is only if a state is ‘unable and unwilling’ that the ICC’s jurisdiction kicks in. At this early stage in the ICC’s development, I would be surprised if Moreno-Ocampo decided to take on a member of the Security Council. I suspect he needs British cooperation too much in Uganda, the DRC and the Sudan to risk the antagonism.

I do believe that Bush and other high-level administration officials will face a court someday, but I think it will be after 2009, and probably in a national court such as Brussels or Madrid (exercising universal jurisdiction) rather than the
ICC. . .

Re: the ICC and complementarity. In theory, since the British have a functioning judiciary, capable of handling investigations and prosecutions, the ICC can refrain from issuing an indictment of Blair EVEN IF there is evidence of crimes within its jurisdiction. The same should be true regarding the United States, even though the US is not a party to the treaty. As long as the US, (and Britian and Australia and Italy) demonstrates competency in regard to prosecuting and punishing crimes of international concern, the ICC is supposed to stay out of the way. However: if the
US fails to investigate/prosecute (proves to be unable or unwilling’) than the ICC, and foreign courts, can assert jurisdiction. That’s why it is so important that we demand an investigation of Bush, now. If such a move is blocked, that opens up possiblities (later) in international arenas.

Amy Ross
Assistant Professor
Department of Geography
University of Georgia
Athens, Georgia
30602