When he was foreign secretary, the late Robin Cook famously said the International Criminal Court (ICC) was ‘not a court set up to bring to book prime ministers of the United Kingdom or presidents of the United States.’ (1) Yet, as former British prime minister Tony Blair finds whenever he makes a public appearance, it’s now quite fashionable to demand Western leaders be indicted for war crimes by the ICC.

Denouncing Western leaders as war criminals certainly sounds radical. But an accusation of criminality is a poor substitute for political argument. Worse, it obscures the negative role played by international war crimes trials. It even lends legitimacy to the thoroughly undemocratic idea that heads of state should be subject to some ‘higher’ judicial power.

War is now routinely treated as primarily a legal, rather than political, issue. This is true for both sides of the debate. Western politicians make the argument for war on legal grounds. They claim intervention is necessary to halt crimes against humanity or to enforce compliance with UN resolutions. Meanwhile, anti-war campaigners call for those same politicians to be indicted for war crimes. Blair, of course, is the paradigm case. His government championed the 1998 Rome Statute, the treaty inaugurating the ICC. Within two years it had launched military operations in Kosovo and Sierra Leone. Both ended with leaders from those states standing trial in international courts. Now, Blair has to cancel public appearances, as happened in London last month, because of protests by anti-war activists who say he is ‘the real criminal who should be jailed’ (2).

One activist tried to perform a ‘citizen’s arrest’ on Blair during a recent visit to Dublin. This meant she became eligible for a prize – offered by Guardian columnist George Monbiot – for anyone attempting this sort of stunt and gaining media coverage (3). Other similar campaigns appear to be pressing charges in earnest. The Blair War Crimes Foundation, for example, petitions both the United Nations and the ICC for Blair to be indicted (4). Over the summer, it even appeared for one, mad moment that this position might have accidentally become government policy. This was after deputy prime minister Nick Clegg, standing in for David Cameron in parliament, described the Iraq war as ‘illegal’. Commentators and lawyers rushed to offer their opinions on whether ‘Clegg’s gaffe…could strengthen [the] case for involvement of the international court.’ (5)

Are they serious?  Well, the ICC’s chief prosecutor, Luis Moreno-Ocampo, reportedly claims he can ‘envisage a scenario in which [Blair] and American President George W. Bush could one day face charges at The Hague.’ (6)  It’s difficult, however, to match Ocampo’s powers of imagination. The court’s rules make such a prosecution virtually unthinkable.

There are in fact three sets of circumstances under which the ICC can launch a prosecution. First, it can be invited in by a government which has ratified the treaty setting up the court, as in the ICC’s current prosecutions in Uganda, Democratic Republic of Congo, and the Central African Republic. Second, it can have a case referred to it by the UN Security Council, as with its prosecution of Sudanese president Omar al Bashir. And third, it can launch an investigation on its own initiative, as it has done in Kenya, but only in relation to states which recognise its jurisdiction and national courts are unable or unwilling to prosecute. There’s also a further catch. The UN Security Council can halt any investigation it doesn’t wish to proceed. This is initially for a year, but is actually renewable indefinitely. Permanent members of the UN Security Council – such as the United States or Britain – are never likely to face prosecution, and could stop any investigation dead in its tracks.

No doubt many calling for the indictment of Western leaders are fully aware this is never going to happen. They seek only to make a point about the double standards of Western governments. Given the foreign policy rhetoric of Western politicians has been laden in recent years with grandiose claims about rights, justice and a ‘rules-based system’ of international relations, it’s important to point out they blithely flout international law when it suits. Unfortunately, however, endorsing the idea that political leaders should be held to account by the ICC actually strengthens contemporary justifications for military intervention.

Perhaps surprisingly, advocates of the ICC are themselves quick to denounce the double standards it embodies. The prominent human rights lawyer Geoffrey Robertson QC, for instance, describes it as ‘a court of a curious sort, where superpowers pull the strings (through the Security Council) yet at the same time…refuse to support it.’ What needles the court’s supporters is that the US has so far refused to ratify the Rome Statute, on the grounds it recognises no higher authority than its own national sovereignty. The US ‘refuses to be bound by international human rights law’, complains Robertson, but it ‘demands the prosecution of foreigners who violate it.’ (7)

Protestors who call for the indictment of US or British leaders echo this complaint. Yet, the problem isn’t that powerful states overvalue their national sovereignty. Rather, it’s that they devalue the sovereignty of weak states. Instead of calling, entirely unrealistically, for the ICC to prosecute Western leaders, anti-war critics would do better to challenge the idea the court should be able to override any state’s national sovereignty.

One of the great myths about the ICC is that it represents a step toward a more peaceful and orderly world. What it actually represents is the overthrow of the principles that underpinned the post-1945 UN system. These are sovereign equality and non-interference in a state’s internal affairs. These principles did not, of course, eliminate conflict or remove real inequalities of power. But they did mean external intervention was widely understood as illegitimate. Despite limitations, the recognition of formal equality was a tremendous advance for countries which had previously been mere colonial possessions of the Great Powers. This historic achievement is now dismissed by the likes of Robertson as ‘the petty notion of sovereignty’ (8).

Since the early 1990s, the presumption has instead been of sovereign inequality. This can be justified in terms of a ‘right to intervene’ or a ‘responsibility to protect’. These rights and responsibilities in practice belong exclusively to powerful states able to exercise them. But the legalistic tenor of the discussion masks what’s really at stake. Many of those who became sticklers for the law in 2003 (including some of those now calling for Blair’s indictment over Iraq), were eager to support the equally illegal Kosovo war in 1999. Blair’s government is long gone, but its talk of human rights enforcement and an ‘end to impunity’ is unfortunately still with us.

War crimes courts effectively provide a legal licence for intervention. During the Kosovo conflict it was the International Criminal Tribunal for the Former Yugoslavia that gave NATO a judicial seal of approval. It indicted the Serbian leader, Slobodan Milosevic, at the height of the bombing campaign. Now, the ICC’s supporters see the potential for this sort of thing to go much further. Robertson has argued, for example, that instead of justifying the 2001 invasion of Afghanistan in terms of national self-defence, the US should have invoked the ‘more permissive legal justification’ of ‘action to prevent and to punish “crimes against humanity”’. (9) Similarly, he advised that, instead of all the flannel about weapons of mass destruction, the coalition’s cause in Iraq ought to have been Saddam’s crimes against humanity (10).  It’s not clear how either war would have been any better if carried out within this ‘permissive’ framework of human rights enforcement.

Equally, it’s not clear how imposed ‘regime change’ would somehow be all right if carried out in line with an ICC prosecution. And yet, that’s what enforcement of the court’s arrest warrant against Sudan’s head of state would amount to. Indulging in fantasies about the indictment of Blair and Bush concedes the idea that international courts should rule on the legitimacy of national leaders. While that’s a remote prospect for Western countries, it’s all too real a proposition for states on the receiving end of ‘international justice’.

Rather than hiding behind the law, it’s important to develop political arguments against war and intervention. A good place to start would be to oppose the ICC and other international war crimes tribunals in facilitating interference in sovereign states.

Dr Philip Hammond, reader in media and communications, London South Bank University; author, Media, War and Postmodernity.

(1) Mick Hume, More to it than Milosevic, spiked, 29 June 2001
(2) Charlie Kimber, Tony Blair: the real criminal who should be jailed, Socialist Worker, 7 September 2010
(3) See Monbiot’s campaign site, Arrest Blair
(4) See the Blair War Crimes Foundation
(5) Samira Shackle, Has Nick Clegg helped the case for a war crimes tribunal? New Statesman, 22 July 2010
(6) Gethin Chamberlain, Court ‘can envisage’ Blair prosecution, Daily Telegraph, 18 March 2007
(7) Geoffrey Robertson, Crimes Against Humanity (London: Penguin, 2000), pp366-7, 453
(8) Geoffrey Robertson, Crimes Against Humanity (London: Penguin, 2000), p365.
(9) Geoffrey Robertson, America is wrong to shoot first, then ask questions about guilt later, The Independent, 26 September 2001
(10) Geoffrey Robertson, On Iraq: make law, not war’ The Age (Australia), 14 September 2002