Channel 4's drama The Trial of Tony Blair portrays the PM standing before a judge for his part in the Iraq war, but could it actually happen?
Phillipe Sands
Phillipe Sands QC is a practising barrister in the Matrix Chambers and a professor of international law at University College London
History may well view the decision to join President Bush's invasion of Iraq as the most foolish decision taken by a British prime minister at any time in the last 50 years. The war has occasioned great suffering and loss without much apparent benefit, to this country or any other. Four years on the effects of this decision are felt ever more widely. Yet all the major decision-makers - Messrs Blair, Hoon and Straw together with their legal adviser Lord Goldsmith - remain in high office, and there is still no recognition of responsibility. In another age all four would long ago have been out of office.
Confronted with this dismal situation it is left to Channel 4 to take a hint from Lord Byron - "Fools are my theme, let satire be my song" - and feed the viewer's imagination with possibilities that may yet unfold. Alistair Beaton's The Trial of Tony Blair is about responsibility. It is premised on the idea that the prime minister's action was not merely foolish, but that it crossed the line separating error from criminality. Across the political spectrum a great many will draw sustenance - and perhaps some pleasure - from Robert Lindsay's tragicomic portrayal of Tony Blair slip-sliding away, from the retirement home in Connaught Square (around the corner from the Edgware Road's Little Beirut) towards custody and justice in The Hague.
Could it actually happen?
I must declare a minor interest. A few months back I received an unexpected phone call from David Aukin, theatre, film and television producer and occasional mischief-maker. I had come to know David when we were on the board of the Soho Theatre, not well, but well enough to know that an invitation to dinner was most likely connected to some new project. "There's someone I'd like you to meet," he said.
That someone was Alistair Beaton, satirist and playwright. The previous autumn David and Alistair had collaborated on A Very Social Secretary, the unforgiving account of David Blunkett's ill-fated relationship with Kimberley Quinn. That project had inaugurated Channel 4's new cable TV channel, More 4. Now they were working on a new project, and they needed a little help on the international law. "We've been looking at your book Lawless World. We want to do a satire about Tony Blair being 'Pinocheted' for waging an illegal war in Iraq. We're interested in the different scenarios," he explained. The last two chapters of Lawless World were on the illegality of the Iraq war, and it included a few sentences on the legal dangers that Mr Blair might face once he was out of office.
Satire works if it has some connection with reality. The less tenuous the better. To many the idea that any former British prime minister could be hauled before some judge for an international crime is little short of ludicrous (although perhaps a little less so in this case, since the PM was questioned by Scotland Yard in the cash-for-peerages investigation). Yet the subject is one that occupies the minds of a growing number of people, in this country and around the world.
The possibility that Mr Blair might face difficulty was plausible enough to trouble Mr Blair's attorney general. The legal advice of March 7 2003 - leaked during the last general election campaign, when the PM had to be rescued by Gordon "I would have done the same thing" Brown - pointed towards the illegality of the war without a second security council resolution explicitly authorising the use of force. A little-publicised part of Lord Goldsmith's advice addresses the consequences: he notes the possibility of a prosecution for the crime of aggression, since it "is a crime under customary law which automatically forms part of domestic law". This advice was not made available to cabinet or parliament, and the attorney's truncated and revised "view" made available to parliament just before the war did not include this or any of the other warnings in the full advice.
Just before the war began - without security council authorisation - the legal argument on which the government acted caused the deputy legal adviser at the Foreign Office to resign. Elizabeth Wilmshurst's letter of resignation did not mince words: "I cannot in conscience go along with advice ... which asserts the legitimacy of military action without such a resolution, particularly since an unlawful use of force on such a scale amounts to the crime of aggression."
The possibility that Mr Blair should be subject to criminal investigation for the circumstances in which he took Britain to war causes a surprisingly large number of people to write to me. Their backgrounds are varied; from around the world journalists, judges, politicians and even some prosecutors have written, wanting to know whether an illegal war can give rise to the crime of aggression and what can be done about it for Messrs Blair and Bush. I am able to point them to Lord Goldsmith's advice.
He was right to highlight the possibility. The crime of aggression came of age in 1945, during the Nuremburg trials, where it was an Anglo-American invention. Since then it has become part of general international law. It has also been incorporated by legislation into the domestic law of a great many countries, as one of my research assistants discovered (for the interested reader: countries in central and eastern Europe and South America seem to have a particular affection for legislation of this kind). In a recent judicial decision the House of Lords confirmed that the crime of aggression was well defined and established as part of general international law, but not yet part of English law since parliament had not yet legislated.
Against this background there can be little doubt that The Trial of Tony Blair is based on a plausible premise. It gets off the ground. Whether or not the illegality of the war could give rise to the individual criminal responsibility of the prime minister is far more complex. It turns on a series of factual questions. When did he take his decision to go to war? Did he know the intelligence on WMD was dodgy? Did he know another security council resolution was needed? Did he lean on his attorney general? Did he mislead parliament and the cabinet? Did he fail to take adequate steps on post-conflict measures and reconstruction? The answers to these and other questions are not yet fully known. There is enough material in the public domain, however, to suggest that the prime minister's potential difficulties are not entirely theoretical.
Alistair Beaton falls into the category of diligent satirists. He wants to know: "What are the various scenarios for the arrest of Mr Blair?" With food and wine the possibilities seem endless.
Option number one is arrest while travelling in a country that has made the crime of aggression illegal in its domestic law. Alistair has spotted an endnote in Lawless World that identifies Azerbaijan as one such country. For dramatic purposes this is not attractive. If Mr Blair is holed up in central Europe he is less closely in contact with his current and former colleagues. There is also the fact that English is perhaps not widely spoken in Baku.
These factors also seem to make option two less feasible. This is the Pinochet scenario (and in the real world the least implausible): Mr Blair travels to a friendly foreign country (Spain? France?) which has received a secret extradition request from another foreign country (Cuba? Venezuela?). This option has one dramatic advantage: travel could be to an English-speaking country. (Ireland? Canada? A Caribbean country where a 1970s pop star has a holiday home?) On a Channel 4 budget and for dramatic purposes, this too has its drawbacks.
Alistair is excited by option three: an indictment by the international criminal court in The Hague. This is a total non-starter, since the ICC does not yet have jurisdiction over the crime of aggression (the reader will have to accept this as the truth, and be willing to forego for now a detailed exposition as to the differences between genocide, war crimes and crimes against humanity - over which the ICC does have jurisdiction - and the crime of aggression - over which it does not).
Option four is equally attractive to Alistair's dramatic requirements: Mr Blair is prosecuted in England at a time of a future Conservative government. Apart from the minor difficulty that the crime of aggression is not part of English law, Alistair is eventually persuaded that the prospect of some future attorney general authorising such a prosecution is so remote as to make it non-existent. There is a momentary pause to examine the possibility of a prosecution in Scotland (which has its own legal system). That too seems unlikely.
Which brings us to option five, the one Alistair finally chooses for The Trial of Tony Blair: a new international court created by the UN to address various aspects of Iraq. It might be called the Charles Taylor option, since it is the model used to address the barbarous atrocities that occurred in Sierra Leone. It is perhaps not the likeliest of all the possibilities, but it has the dramatic merit of dropping a key decision - whether Britain should veto the security council resolution setting up a special international court - into Mr Brown's lap (let critics not dwell too long on the fact that Mr Brown could be a co-conspirator, having sat in the cabinet throughout and supported all the key decisions on Iraq).
The Trial of Tony Blair is for those with a fertile imagination. Some will say it is more likely than a Tony Blair Institute of Foreign Policy being established at the LSE. Yet it raises issues that are mightily serious, focusing on the one act of Mr Blair's premiership that will forever dominate his legacy. Whether that legacy ever leads down an unexpected path of criminal process is another matter, but one that cannot be excluded out of hand. At the very least, Mr Blair's advisers will make sure that his future trips abroad are carefully planned. Book signings, lecture tours and invitations from icons of the 70s will need to be carefully screened.
Phillipe Sands QC is a practising barrister in the Matrix Chambers and a professor of international law at University College London. He appears regularly on news and current affairs programmes in the UK and abroad, reviews and writes for the British broadsheets and has been involved in many of the recent high profile cases at the World Court.
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