One law for us, another for them

Blair will not face prosecution for his role in the 2003 Iraq war, the high court has ruled. The lord chief justice, Lord Thomas of Cwmgiedd, and another senior judge, Mr Justice Ouseley, said on Monday that there was no crime of aggression in English law under which the former prime minister could be charged. Within the UK, however, the clear principle is that “it is for parliament and parliament alone” to decide whether there should be a crime of aggression in domestic law. 

The judges recognised that a crime of aggression had recently been incorporated into international law, but said it did not apply retroactively. The offence is not on UK statute books.

The aim of the case was to force Blair – as well as the former foreign secretary Jack Straw and the former attorney general Lord Goldsmith – to answer for their actions in court.

Michael Mansfield QC said the offence of waging an aggressive war had effectively been assimilated into English law. Mansfield argued that the international crime of a war of aggression had been accepted by then UK attorney general Sir Hartley Shawcross QC in the 1940s, at the time of the Nuremberg trials of Nazi war crimes. The Chilcot inquiry’s conclusion that the invasion of Iraq was unnecessary and undermined the United Nations required the prosecution of Tony Blair, Mansfield told the high court.

In their judgment, Thomas and Ouseley conceded: “We see the force of Mr Mansfield’s contention that if there is a crime of aggression under international law, there should be a means of prosecuting it as otherwise the rule of law is undermined.”  Prosecution before an international court nonetheless presented “significant practical difficulties”, said the judges.

Responding to the judgment, Imran Khan, the solicitor, explained the government had been given “de facto domestic immunity” because “as long as it fails to enact legislation which makes the crime of aggression a domestic criminal offence, any leader can act as he/she chooses knowing that whatever action they take, it can be taken with complete impunity.” Other countries, including Germany, Kosovo, and Serbia, have enacted domestic legislation, Khan said. “The failure of the British government to give tangible commitment to the prosecution of the crime of aggression undermines the rule of law. It sets a dangerous precedent in times of global insecurity and sets an example to the rest of the world of how to commit the most serious of crimes and get away with it."