In his 2001 book, The Trial of Henry Kissinger, published two years before he went off the rails over the Iraq war, the late Christopher Hitchens wrote of his subject, “His own lonely impunity is rank; it smells to heaven. If it is allowed to persist then we shall shamefully vindicate the ancient philosopher Anarcharsis, who maintained that laws were like cobwebs; strong enough to detain only the weak, and too weak to hold the strong. In the name of innumerable victims known and unknown, it is time for justice to take a hand.” This captures exactly, albeit more eloquently, Desmond Tutu’s angry denunciation of Tony Blair last week. Pulling out of a South African conference on leadership at which Blair was also scheduled to speak, the former Archbishop of Cape Town, anti-apartheid activist and Nobel Prizewinner, refused to share a platform with him. He suggested that if Robert Mugabe, Ratko Mladic, Saif al Islam and others – largely Africans – could be charged with crimes against humanity, then Blair and Bush should also be arraigned before the international criminal court at the Hague as war criminals for launching a war of aggression against Iraq.

The accusation is not new. The anti-war movement leveled the charge against them in 2003 and one or two journalists and the odd historian have added their voices to those demanding that they be indicted. Such voices can be, and have been, ignored or derided as inflamed lefties too marginal to warrant serious attention. But Archbishop Tutu cannot be so easily dismissed. A towering figure from the anti-apartheid struggle, he is a man of unimpeachable moral standing. Blair, who usually dismisses his critics as unworthy of his precious time, has clearly been stung by Tutu’s comments. He has been prompted to respond at some length, prefacing his now familiar self-exculpatory justification for launching the invasion with an expression of respect for the archbishop’s fight against apartheid, a cause “where we were on the same side of the argument.” But he describes Tutu’s charge against him and Bush that “we lied about the intelligence” as an “old canard” that “all independent analysis” has shown to be completely wrong. He goes on, as he always does, to describe as bizarre the argument he attributes to Tutu that Saddam Hussein’s massacre of hundreds of thousands “is irrelevant to removing him.”

It is astonishing that Blair is still able to get away with this crude obfuscation of the issues around the invasion of Iraq. No-one, least of all those who opposed the war, was in any doubt about the monstrosity of Saddam’s dictatorship. Terrible though this was, there was no justification in international law for launching an invasion to remove him from power. Whenever Blair and his defenders are called upon to justify their invasion of Iraq, they invariably attempt to do so by accusing opponents of the war of acting, willy-nilly, to keep Saddam in power. In adopting this line of attack, Blair cannot but reveal the actual motive for the invasion – regime change. This was transparently Bush’s motive and it was understood to be so by Blair who also approved of it. But, for domestic political reasons he was unable to admit this openly as he would never have won a parliamentary majority for the invasion had he done so. Therefore a different reason had to be found. Iraq would be attacked to rid the country of Saddam’s weapons of mass destruction. But even this did not provide sufficient justification in international law.

The Iraqi government denied that it still possessed WMDs, claiming (as it turned out, truthfully) that they had all been destroyed following the country’s defeat in the first Gulf war. According to Blair he (and everyone else) genuinely believed that Saddam did have such weapons and was lying when he denied it. Blair also claims that he genuinely believed in the veracity of intelligence reports confirming this. It is important to ponder this for a moment because he always attaches great importance to what (he says) he “genuinely” or “sincerely” believes. It is as though the strength of his belief that something it so, actually makes it so. So, to believe that Saddam possesses WMDs, is to know that he does.                                                              

This characteristic confusion of knowledge and belief also applied to his assessment of Saddam Hussein. Because, in Blair’s view Saddam was inherently evil, nothing he said could be believed and when he claimed to have destroyed his WMDs, Blair knew that he was actually concealing a vast armory. Thus, when to everyone’s surprise Saddam agreed to allow UN inspectors into the country, Blair knew that if they failed to find the WMDs, it was only because they had been successfully concealed. It will be remembered that the US/British build-up to the invasion of Iraq intensified during the early months of 2003. The invasion could not be put off to much later than the beginning of April, due largely to the rising temperatures which would add to the strain of the thousands waiting to be deployed and to the difficult conditions the invaders would face in Iraq. This explains the impatience with Hans Blix and his team, who, having failed to find any trace of WMDs, and becoming increasingly skeptical as to whether there were any, pleaded for more time. This could not be allowed because as long as the inspectors remained in the country, the invasion would have to be delayed – something that could in no circumstances be countenanced. But, to break the deadlock and facilitate an immediate invasion, there had to be a dramatic intervention.

It came in the form of Blair’s speech to parliament in which he claimed that Saddam possessed missiles with nuclear warheads that could be deployed against Britain in 45 minutes. This mendacious claim succeeded in its intention. He persuaded a majority of his own party to vote with the Tories in favor of the invasion of Iraq. The claim was mendacious because Blair was aware that the dossier on which it was based, was “dodgy”; it was a farrago of half-baked claims and speculation extracted in part from some obscure student’s graduate thesis written 12 years before, downloaded from the internet. Blair knew, because he was party to the operation, that the intelligence was being doctored and twisted to make the case for war. Put very simply, his mind was made up and he did not want to be hindered in his resolve by any inconvenient facts.

Then there are the inconvenient facts of UN resolution1441and the failure of the Security Council to sanction the invasion. Resolution1441did not provide such sanction. For that, a new resolution was necessary. Blair knew this and every effort was made by Britain and the US to get a new resolution. When in early March 2003 it became clear that French president Chirac intended to veto any resolution put before the Security Council to secure UN backing for military action against Iraq before the inspectors had finished their work, the US and British governments, fell back on the untenable position that resolution 1441 was sufficient to provide UN backing for the planned and imminent invasion. This was a threadbare argument and everyone knew it. Blair and the warmongers, backed by a jingoistic right-wing press, unleashed a stream of lying invective against the French. The war against Iraq was unleashed without a second resolution.

In a letter to The Guardian on 5 September, the eminent British lawyer, Geoffrey Bindman QC wrote: “The invasion of Iraq violated the UN charter, and those who launched it committed the international crime of aggression.”  The International Military Tribunal which tried the Nazi war criminals after the second world war defined a war of aggression as “a military conflict waged without the justification of self defense” and went on to state that “to initiate a war of aggression…is not only an international crime; it is the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” The Rome statute of the International Criminal Court refers to the crime of aggression as one of the “most serious crimes of concern to the international community.” But, although that crime falls within the jurisdiction of the International Criminal Court, the ICC does not have the right to exercise its jurisdiction until the member states agree to it doing so. When they do so, its jurisdiction will not be retrospective.

Awareness of these statutes explains Blair’s mendacious attempt to suggest that the invasion of Iraq was undertaken in self defense against what might be an imminent nuclear attack on Britain. Blair was certainly aware of the fact that Resolution 1441 did not sanction the attack on Iraq. His attorney general, Lord Goldsmith, told him so in written advice on 7 March 2003, where he pointed out that without a second resolution, invading Iraq would be considered a war of aggression, a crime under international law and “a crime recognized by the common law which can be prosecuted in the UK courts.” Also under pressure from his military chiefs, understandably worried about prosecution for war crimes, he was desperate to get from the attorney general a revised opinion to the effect that Resolution 1441 alone would suffice to provide a UN sanction for the imminent attack. It is crystal clear that Goldsmith’s volte face was wrung from him under great pressure. Over 90 per cent of international lawyers agree that without a second UN resolution, the invasion of Iraq was illegal in international law. Blair’s often-repeated claim that the war was justified because it got rid of Saddam Hussein is a smokescreen, intended to deflect attention from the truth that it was “a military conflict waged without the justification of self defense” and therefore a war of aggression and “the supreme international crime”.

Will Blair be brought to trial at the Hague? It is very unlikely, because if and when the ICC gets the authority to exercise its jurisdiction in cases of aggression, such jurisdiction will not be retrospective. Will Blair ever be prosecuted in the UK courts? He should be. Until he is brought to justice, his impunity is rank and “it smells to heaven.”