When President George W. Bush began planning the war in Iraq, he must have known he would face vocal opposition. It’s unlikely that he thought he would be called to face criminal charges for those actions.
This past week, Archbishop Desmond Tutu penned an editorial in the UK’s Observer newspaper calling for just that. The noted South African anti-apartheid activist argued that George Bush and former British Prime Minister Tony Blair should be called in front of the International Criminal Court in The Hague and be held accountable for their actions.
The Nobel Peace Prize-winning Tutu has long been a critic of the United States’ War on Terror. This is not Tutu’s first time making this argument, nor is it likely to be his last. The archbishop is merely one of the many and one of the most prominent international figures that have called for a war crimes prosecution of both Bush and Blair.
From a legal standpoint, Tutu is absolutely correct. The International Criminal Court, which first came into being in 2002, was created to be a permanent body to prosecute war crimes, crimes against humanity and wars of aggression. It was a response to the ad hoc tribunals that had been created in the wake of the Rwandan genocide and the atrocities in the former Yugoslavia.
The Rome Statute, which outlines the rules of the ICC, states that one of the main crimes the court has jurisdiction over is the crime of aggression against another state. One of the most important components of international law is the idea of state sovereignty — that each state has a right to exist in peace, without fear of attack or invasion by another country. Tutu argues that the war in Iraq was an act of aggression and made war criminals out of George Bush and Tony Blair.
What Tutu fails to recognize is that international law is not an area governed by mandatory rules, but rather by custom. And by writing this article, he’s ignored one of the most fundamental customs in international relations, and that is that the victors make the rules.
This goes back to the founding of modern international law at the Nuremburg trials after World War II. The victorious Allies were able to create a tribunal to prosecute Nazis for war crimes, which was an unprecedented action after a war. But the Holocaust and the other atrocities of World War II were also unprecedented and demanded a novel response. While the Nuremburg trials were effective, they completely ignored any wrongdoings or misdeeds on the part of the Allies during the war.
Had the war gone the other way, it’s not entirely implausible that America could have faced war crimes charges for dropping atomic bombs on Japan. But it didn’t — the Allies won. While this set the precedent for the prosecution of war crimes, it also set the precedent of the victors dictating the terms.
This precedent persists to this day. The world-power countries dictate the terms the rest of the world lives by. While Archbishop Tutu is correct, he also ignores the thrust of modern history. War crimes are committed by warlords in far-off places, in the remote reaches of the globe. No matter what actions are taken by the United States, because we get to define the terms, thus there will never be a war criminal living at 1600 Pennsylvania Avenue.
Brittany Sharkey is a second-year law student from Oceanside, Calif. She graduated from NYU in 2010 with a degree in politics. Follow her on Twitter @brittanysharkey.
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