On Saturday, 2 July 2016, the British daily, The Telegraph, published an article erroneously asserting that my Office has "already ruled out putting Tony Blair on trial for war crimes."
The article is being widely disseminated, aggravating the spread of inaccurate information concerning the ongoing preliminary examination carried out by my Office with respect to the Situation in Iraq. As such, I am compelled to correct the public record by providing the following clarification.
First, I reiterate that all the activities of my Office, including all our preliminary examination work, are conducted with full independence and impartiality. These principles are non-negotiable in my Office.
Second, it must be emphasised that my Office has not taken a position with respect to the Chilcot Report; the contents of which are yet to be released and are unknown to us at this stage.
Third, my Office is currently conducting a preliminary examination with respect to the Situation in Iraq, not an investigation. A preliminary examination is aimed at determining whether there is a reasonable basis to open an investigation on the basis of all reliable information that we have independently assessed in accordance with the Rome Statute legal criteria. The Office will consider the Chilcot Report as part of its due diligence of assessing all relevant material that could provide further context to the allegations of war crimes by British troops in Iraq. Additional details of this work are available in our latest preliminary examination report.
Fourth, while the International Criminal Court ("ICC" or the "Court") currently has jurisdiction over war crimes, crimes against humanity and genocide, as explained to The Telegraph, its jurisdiction over the crime of aggression has not yet been activated. Therefore, the specific question of the legality of the decision to resort to the use of force in Iraq in 2003 – or elsewhere – does not fall within the legal mandate of the Court, and hence, is not within the scope of its preliminary examination.
An important distinction must be borne in mind between war crimes, which fall within the jurisdiction of the ICC, and the crime of aggression, which, at the present stage, does not. These are two very distinct crimes with their own legal elements of criminality. Suggesting, therefore, that the ICC has ruled out investigating the former British Prime Minister for war crimes but may prosecute soldiers is a misrepresentation of the facts, drawn from unfamiliarity with the Court's jurisdictional parameters. These parameters also require the Court to exercise jurisdiction only when a state is unable or unwilling to genuinely investigate and prosecute the perpetrators.
Once a decision is made to open an investigation in any given situation, my Office may investigate and prosecuteany individual suspected of committing crimes within the Court's jurisdiction, namely war crimes, crimes against humanity or genocide. We do this work without fear or favour and irrespective of the official capacity of the perpetrator(s). In accordance with the scope of my Office's policy, in fact, as a general rule, my Office will prosecute those most responsible for the commission of these serious crimes. The warrants of arrest issued to date by the Court have been line with this policy and principled approach.
In short, the assertions about the ICC and my Office's work contained in the said article published by The Telegraph are inaccurate.