NORMAN LAMONT: If anyone should be in the dock over Iraq, it's not British soldiers but Tony Blair

The International Criminal Court based at The Hague, which was established by governments around the world in 2002 - the early years of Tony Blair's government

The road to Hell is paved with good intentions, as the proverb goes.



Those words are certainly true of the International Criminal Court based at The Hague, which was established by governments around the world in 2002 supposedly to deal with major incidents of genocide and crimes against humanity.

But, as some of us predicted when legislation to create the Court was passing through Parliament during the early years of Tony Blair’s government, the remit of the Court would inevitably be widened and its high-sounding purpose degraded.

That is precisely what has happened, as demonstrated by events this week. British people will have been shocked to learn that this body has decided to launch a preliminary investigation into allegations of ‘war crimes’ by British troops during the invasion and occupation of Iraq between 2003 and 2008.

But it is not just individual soldiers who are facing legal scrutiny from The Hague.

Absurd

The International Criminal Court (ICC) has warned that it will investigate the actions of figures much higher up the military hierarchy, including commanders and even senior Labour politicians. Among their number are Geoff Hoon, the Defence Secretary under Blair, his successor John Reid, and the former Armed Forces Minister Adam Ingram.

This proposed inquiry could hardly be more ridiculous. It is absurd to imagine that British troops and senior officers have seriously engaged in any systematic war crimes or abuses.

Our Armed Forces are rightly admired across the world for their high standards of professionalism and ethical conduct. There will, of course, always be occasional cases of indiscipline or bad things done under the provocation of war, but it would be outrageous to equate such behaviour with institutionalised criminality.

Furthermore, although we are from different parts of the political divide, I know Geoff Hoon, John Reid and Adam Ingram well. They are intelligent, tough-minded, honourable men of the highest integrity who were well-suited to their roles at the Ministry of Defence. It is a grotesque calumny to use the term war crimes in the context of their public service.

Nevertheless, this shameful case is precisely what some of us warned would happen.

During the debates on the Bill in the House of Lords, I said there was a real risk that the Court could become an arena for vexatious litigants and meddlesome lawyers with a political agenda to pursue.

Indeed, that is precisely why several democratic governments, most notably those of the U.S. and Israel, refused to sign up, rightly fearing that its operations would be ruthlessly exploited by their enemies.

The International Criminal Court (ICC) has warned that it will investigate the actions of figures much higher up the military hierarchy, including commanders and even senior Labour politicians

Meanwhile, some regimes — including most ironically of all, Saddam Hussein’s Iraq — eagerly supported the Court, despite having shown contempt for essential human rights.

One of the particular dangers I drew attention to in the Lords was the so-called ‘Doctrine of Command Responsibility’, which holds that commanders and politicians can be guilty of war crimes not by ordering them, but simply by failing to prevent them.

That is to say they can be convicted not for what they did or knew, but for what lawyers sitting in a courtroom many years later considered they should have known.

The concept of ‘Command Responsibility’ was first given legal status in 1945, when General Yamashita, commander of the 14th Japanese Army, was accused by the U.S. of having presided over atrocities against thousands of civilians and prisoners-of-war.

There was no evidence that Yamashita had ordered these offences to be perpetrated or was even aware of them, but he was found guilty on a majority verdict on the grounds that he had ‘failed to control the acts of members of his command’. He was subsequently hanged.

Former defence secretary Geoff Hoon is among those named in the file

The doctrine, now seized on with alacrity by the ICC, is exceedingly vague and the thin end of a wedge that could easily be exploited for political ends.

In the case of Geoff Hoon, for instance, he could be attacked by lawyers for what he ought to have known as well as what he did know, a recipe for almost endless judicial intervention.

There were three further objections that those of us who opposed the legislation made at the time of its passage through Parliament. One was that it might be used against our own troops. As we pointed out, existing British law was perfectly adequate to deal with any offences by serving personnel.

Indeed, in recent years there has been a string of successful prosecutions through British courts of soldiers who have been convicted of crimes.

Under the Statute of Rome which set up the ICC, legal actions are supposed to be mounted only in cases where there is no effective investigation by the national authorities. But, all too predictably, that stipulation has been ignored by The Hague, ever eager to widen its powers.

The second problem is that the Court, far from cracking down on violence, actually makes it hard to settle civil wars. An essential ingredient of any peace deal is an amnesty for combatants, but that is lost in a judicial world of endless legal actions without time limits.

Prolong

So resolution becomes more difficult, as we have seen in the Sudan, where the ICC wanted to arrest and charge the country’s president Omar Bashir, but other countries and, ironically, aid agencies objected on the grounds that this would prolong the war.

The result was that nothing happened. It was hardly the impartial enforcement of law.

The third, even more fundamental problem is that there was never any need for the ICC.

The blood-soaked aftermath of individual conflicts could have been dealt with by special tribunals, as happened at Nuremberg after the defeat of Hitler’s regime, or in the court set up at The Hague to handle war crimes arising from the Balkans conflict after the break-up of Yugoslavia in the Nineties.

There was never any call for this extension of judicial bureaucracy, where all too many lawyers and prosecutors now seek out work to justify their own existences.

What makes this case all the more offensive are the double standards. It is a rich but bitter irony that the ICC has managed, through its legal operations, to be presented with a wealth of information — and no doubt misinformation — about the actions of individual soldiers in that war zone.

Yet the full might of the British Parliament has still failed to extract the truth about the Iraq War by ensuring the publication of the Iraq report by Sir John Chilcot. This is thanks to the stone-walling tactics of Tony Blair, who is refusing to release his correspondence with President George Bush.

The Hague seems easily able to get dossiers on British operations in Iraq, but Westminster cannot obtain from Blair the real story of how we became embroiled in this conflict.

Catastrophic

It really is scandalous, given that a reported £7.4 million of taxpayers’ money has been spent on the Chilcot Inquiry, yet the architect of this catastrophic war is still able to hide behind his wall of stubborn non-cooperation.

The irony of the current warnings from the ICC is all the deeper, given that it is now possible Blair’s colleagues might be put on trial. Yet they were not the ones who had ‘command responsibility’, as they were not the ones who took us into that fateful war.

The prosecutor of the International Criminal Court says she has reopened a preliminary investigation into Iraq to examine allegations that British soldiers may have committed war crimes by abusing prisoners from 2003 to 2008 (file photo)

That was Blair’s responsibility, and the dark suspicion remains that he is blocking the publication of the Chilcot report because his correspondence with Bush might reveal that, contrary to all his public protestations, he had agreed privately with the White House to back the Iraq invasion even before the Cabinet or Parliament had given their approval.

It would be a travesty of justice if Tony Blair were to escape scot-free, having made the most disastrous foreign policy decision of modern times, while his more junior ministers were put through the legal wringer and ended up paying the price for their leader’s actions.