ALEX Salmond’s hopes of having former Prime Minister Tony Blair face criminal proceedings over Britain’s involvement in the Iraq War have hit a new hitch.
The Crown Office has confirmed that it has previously rejected a bid by former SNP MP Jim Sillars to charge Mr Blair under Scottish law with war crimes.
Salmond, the former First Minister wants Mr Blair to be called to account through the courts if the Chilcot inquiry report due to be revealed on Wednesday finds that he made a pre-commitment to US president George Bush to support the invasion.
But the difficulty has been finding the legal framework over which any charges could be brought, if Mr Blair is found culpable by the report.
A demand for the matter to be brought through the Scottish courts was made in a 10,000-word document compiled by Mr Sillars in 2007, and backed by his now late wife Margo MacDonald, then an independent MSP.
It was sent to Eilish Angiolini, the Lord Advocate, and claimed that the Prime Minister should face two charges in connection with the invasion of Iraq in 2003.
Mr Sillars then said that legal experts had told him that the Prime Minister had a case to answer, even though similar attempts had failed south of the border in both England and Wales.
Mr Sillars had called on the Lord Advocate to investigate saying there was “overwhelming evidence” that the former Prime Minister was guilty of "conspiring to wage aggressive war" and "waging an aggressive war" against the state of Iraq. The arguments put forward by Mr Sillars were described at the time by Mr Salmond as "both familiar and well-founded".
The Crown Office has confirmed that following Mr Sillars' submission to the Lord Advocate, the matter was given "most careful and detailed consideration" by Crown counsel who advised that "the crime of aggression does not currently form part of Scot’s law and that the declaratory power of the High Court could not be used to make it part of Scot’s law".
The Crown Office said: "On that basis, the Lord Advocate reached the view that there could be no prosecution in Scotland on the basis of the circumstances outlined by Mr Sillars in his submission."
Mr Salmond, the SNP foreign affairs spokesman recently raised the prospect of being tried in Scottish courts after admitting that hopes of getting Mr Blair to face an investigation by the International Criminal Court had hit a hitch.
The ICC, which is seen as a court of last resort, intervening only when national authorities cannot or will not prosecute, has said that the crime of aggression is “currently not within the ICC jurisdiction, so no preliminary examination can be conducted based on this specific crime”.
The body defines a crime of aggression as a “crime committed by a political or military leader which by its character, gravity and scale constituted a manifest violation of the [United Nations] Charter”.
It has confirmed the court may, in future, exercise jurisdiction over the crime of aggression. A decision on the matter is due to be made by its members after January 1 next year.
Further doubt over whether Chilcot would apportion blame has come after Lord Butler, the man behind the 2004 review into weapons of mass destruction intelligence, said the report team was never asked to answer the questions over the legality or illegality of the Iraq war.
Lord Butler said: "The legal issue wasn’t actually put to him. His review team wasn’t equipped properly to deal with that issue.”
"My criticism of him was about the way he reported the intelligence, he exaggerated the reliability of the intelligence … he was trying to persuade the United Nations and the world that there was a proper legal basis for taking military action against Iraq.
“In fact, the joint intelligence committee said to him the intelligence was sporadic and patchy. He said to the House of Commons that it was extensive, detailed and authoritative. That was where the inconsistency lay. I don’t call that a lie, he may himself have thought it was extensive, detailed and authoritative, but it wasn’t.”
Mr Salmond, – who led SNP MPs in voting against war in the House of Commons in 2003 – said he believes the Chilcot report will reveal that Mr Blair committed Britain to joining the US-led military action in private conversations with Mr Bush.
He had previously favoured the ICC route but says he is “open to Mr Blair being held to account on whatever is the best way”.
Mr Salmond played a major role in the impeachment group, formed in the main by Welsh and Scots nationalist MPs before he became First Minister - and at a time when the SNP were a minor party in Parliament with just three MPs Now the SNP with 54 MPs are the UK’s third biggest party.
They set off a chain of events that led to Mr Blair's government avoiding a bloody nose on the Iraq war in a House of Commons vote.
Realistically, the motion tabled by the Scottish and Welsh nationalist parties calling for an immediate investigation of the war had little chance of being won as it would have needed the entire opposition plus 35 Labour rebels to back it.
In the end it was defeated by 298 votes to 273 votes - a majority of just 25.
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