JURIST Guest Columnist Eric Leonard, the Henkel Family Chair in International Affairs at Shenandoah University, says that Archbishop Desmond Tutu’s statements regarding the prosecution of George W. Bush and Tony Blair serve as an ardent call for advancement towards a truly universal system of justice…

While Archbishop Desmond Tutu’s recent call for the International Criminal Court (ICC) to pursue the prosecution of former US President George W. Bush and former UK Prime Minister Tony Blair for the 2003 invasion of Iraq may be interesting and engaging, it is not legally viable. However, I am not sure that Tutu intended the ICC to act on his recommendation. It is probably more defensible that his call was political in nature rather than legal, in a hope that the system of international criminal justice would move forward in providing mechanisms for prosecution of such situations. Unfortunately, this political push has little to no chance of gaining traction despite the best intentions of such an esteemed international figure.

Let me begin with a discussion of the legal viability, or lack thereof, of this recommendation. The ICC, except in very particular circumstances involving a UN Security Council (UNSC) resolution, is not a court with universal jurisdiction. Therefore, in order for the ICC to prosecute, the crime must have been committed in the territory of a member state or by a national of a member state. Iraq is not currently a member state, so that path to prosecution is not possible. Further, the US is also not a member state, so prosecuting Bush is likewise not feasible. While the UK is a member state, another glaring impediment to prosecution in this circumstance is the crime itself. It appears that Tutu is calling for prosecution according to the crime of aggression. The problem is that the crime of aggression is not currently actionable under the Rome Statue — the governing statute of the ICC. Therefore, it is even less practical to consider prosecution of either Bush or Blair.

However, as I stated earlier, this is not truly a call for a legal response to this situation. This appears to be an attempt to initiate a political discussion about such behavior by the world’s most powerful leaders. If it were a truly legal claim, why not push for prosecution of former Australian Prime Minister John Howard? While Australia was a major player in the Iraq invasion, the reality is that Tutu wants to make a political statement by going after predominant world powers and pushing for a system of justice that is more objective in its application. While an objective system of justice is the main focus of the ICC, the court is not fully capable of tackling this problem.

The ICC remains a part of the larger political landscape and is constrained by the distribution of capabilities that make up that political context. Could Bush be prosecuted for war crimes in Iraq? Technically yes, but such a prosecution is only possible with a UNSC resolution granting the ICC jurisdiction over the case. Even if such a resolution were granted, the US could gain exemption from this prosecution like it did in Sudan and Libya — the other two ICC cases involving universal jurisdiction.

In the case of Sudan, the Bush administration chose to abstain from Security Council Resolution 1593, which referred the Darfur situation to the ICC. No one believed the Bush administration would vote in favor of the resolution, given the belligerent attitude of the administration towards the ICC at this time. In fact, most observers believed a veto was a given. It is plausible to argue that the primary reason the Bush administration abstained from this vote, rather than veto, was the exemption in the resolution for UN and US soldiers deployed in that area who are not party to the Statute. As stated in the Security Council Resolution:

The Security Council … [d]ecides that nationals, current or former officials or personnel from a contributing State outside Sudan which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that contributing State for all alleged acts or omissions arising out of or related to operations in Sudan established or authorized by the Council or the African Union, unless such exclusive jurisdiction has been expressly waived by that contributing State.

In short, if the US had soldiers or personnel in the Darfur region, they would be exempt from ICC prosecution.

The events in Libya presented a similar situation. The Obama administration voted favorably for Security Counsel Resolution 1970 [PDF] granting the ICC jurisdiction in Libya. While this approval of the resolution shows the Obama administration’s more amiable relation with the ICC, it still exhibits the exceptionalism of the US toward the ICC. Again, a favorable vote was dependent on US exemption from prosecution. In language similar to the Darfur resolution, the document states that:

[The] Security Council … [d]ecides that nationals, current or former officials or personnel from a State outside the Libyan Arab Jamahiriya which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State.

Although many analysts do not discuss these exemptions, it is critical to understand that the ICC can only gain universal jurisdiction with such stipulations. Thus, Tutu’s call appears idealistic from a legal standpoint. Again, however, I believe that Tutu’s main point is more political in nature. Tutu’s intent is not necessarily to bring Bush and Blair to justice, for he wishes to expose the shortcomings of the international criminal justice system and the means by which to correct it. Only by doing this can the dialogue on international justice evolve.

Another mechanism utilized to prosecute those accused of committing war crimes, crimes against humanity or genocide, is domestic prosecution by states not directly involved in the situation (meaning no relation to the location of the crime, the accused or the victims). This is a pure form of universal jurisdiction with prosecution coming from such states as Canada or, at one time, Belgium. In fact, this may be the most feasible option for prosecuting the leaders of dominant states, but again the politics of the system appear to trump the legality of the case.

The best exemplification of this issue involves the old Belgium universal jurisdiction law and their attempts to uphold a universal sense of justice. In 1999, the Belgian government passed a law (which was an amendment to a 1993 law) stipulating that “[t]he Belgian courts shall be competent to deal with breaches provided for in the present Act, irrespective of where such breaches have been committed.” Such a proclamation meant that the Belgium government could prosecute for an act of genocide, war crimes or crimes against humanity regardless of where the crime occurred, who committed the crime or whom it victimized. It was truly universal jurisdiction. In 2001 they acted on this law and prosecuted four Rwandan citizens for their role in the 1994 genocide. The Butare Four case, as it became known, was crucial to the discussion of jurisdiction and powers of prosecution. It seemed that a new era of international criminal justice might be dawning.

However, the specter of power politics once again reared its ugly head.

In the aftermath of the trial, a plethora of cases were presented to the Belgian prosecutors. These included criminal complaints against former US President George H. W. Bush, former US Vice President Dick Cheney, former US Secretary of State Colin Powell and retired General Norman Schwarzkopf — all for alleged crimes committed during the first Gulf War. Additionally, there were several legal complaints filed against numerous government officials, including Augusto Pinochet, Fidel Castro, Saddam Hussein and Yasser Arafat. You can imagine the trepidation that these governments felt at the thought of a foreign government being able to prosecute their former leaders. Thus, the US took action and pressured the Belgians into amending the law, going so far as to threaten the removal of NATO headquarters from Brussels. According to the amended law, Belgian courts can now only proceed if the case involves a Belgian citizen — either in regards to the nationality of the defendant and/or the victim. In short, the Belgian law is no longer predicated on universal jurisdiction but extraterritorial jurisdiction, as are most ICC cases.

So what does this tell us about Tutu’s call for prosecution of these former leaders? It tells us that he is trying to find a solution to the core problem of international criminal justice: the lack of objectivity. While Tutu’s call shows the inability of the international community to currently overcome this problem, this is not a cause for dismay amongst the international justice advocates. One need only look at the evolution of humanitarian law over the past century to gain perspective. The international system has come a long way from Nuremberg and Tokyo, and the creation of an ICC and prosecutions by domestic governments shows promise for the future. Tutu is simply pushing for further change and advancement that may one day come in the form of a truly universal system of justice. His comments should be praised and the system should continue to evolve.

Eric Leonard is the Henkel Family Chair in International Affairs at Shenandoah University. His primary areas of expertise are global politics, foreign policy, human rights, humanitarian law and political philosophy. He has published several articles and is the author of The Onset of Global Governance: International Relations Theory and the International Criminal Court.

Suggested citation: Eric Leonard, International Justice: Tutu’s Push for Reform, JURIST – Hotline, October 3, 2012, http://jurist.org/hotline/2012/10/eric-leonard-tutu-icc.php .