Misconduct in a public office
The former Director of Public Prosecutions, Lord MacDonald QC, believes Tony Blair’s conduct in the build-up to the Iraq war could amount to misconduct in public office.
Why can Blair not be tried for crimes of aggression?
It remained possible to prosecute individuals for the crime of aggression until the 1998 Rome Statute which created the International Criminal Court (ICC).
Although it provided for prosecuting the crime of aggression, it delayed bringing the offence into force until a modern definition was agreed by its member states.
This was done in 2010 when it was agreed the offence was one of planning or preparation “by a person in a position effectively to exercise control or to direct political or military action of a state” of an act of aggression, “which, by its character, gravity and scale, constitutes a manifest violation of the charter of the UN”.
However, it was also agreed that there should be no prosecutions until further agreement in 2017. This means that it would not be possible to prosecute Tony Blair for aggression now or in the future, because even when the offence is in place and prosecutable, it will not be legally possible to apply it retrospectively.
“Aggression” is not a crime in our domestic law and so could not be prosecuted in our courts.
The International Criminal Court (ICC) can and does prosecute individuals for three distinct crimes – genocide, war crimes and crimes against humanity.
In order for a leader to be prosecuted for war crimes on the battlefield, it would be necessary to prove that they knew or should have known of the crimes and failed to take necessary and reasonable steps to prevent them.
It is possible to bring such a prosecution in our courts, and at the ICC if our domestic prosecuting authorities are unable or unwilling to bring them.