Nationalist MSPs yesterday rallied behind a motion by Independent Margo MacDonald urging the Scottish Government to legislate “so that Tony Blair could be brought to trial in Scotland”.
The move comes after Archbishop Desmond Tutu claimed Mr Blair and former US president George Bush behaved “like playground bullies” in invading Iraq in 2003 and should appear before the International Criminal Court (ICC) in The Hague.
Ms MacDonald’s motion urges her colleagues to back the view the war was illegal. She also calls on ministers to incorporate into Scots criminal law the principle of international law which makes “aggressive war with intention of regime change” illegal.
It was supported by many SNP MSPs yesterday in a bid to force a debate in the Holyrood chamber.
Edinburgh Southern MSP Jim Eadie said yesterday: “Waging an aggressive war is illegal under international law. There has long been a case to answer about Britain’s military action in Iraq, which was motivated by regime change, not the dangers posed by weapons of mass destruction. I think we need a debate about whether Scots law can be changed in order to bring Tony Blair to trial.
“There is a prima facie case that he broke international law and it has been argued that it would require a small change to Scots law to allow him to be tried here.”
He added: “If this is possible it would command widespread support, not just in Scotland but from people across the UK who remain angered that Britain was taken to war and many lives were lost on a false premise. We know the fiction of weapons of mass destruction was created because the UK Government could not be open about their desire for regime change in Iraq.”
Former police officer John Finnie, now a Highlands and Islands MSP, said: “There is huge sympathy for the view that war criminals – and I include Tony Blair in that – should face justice.” He added of the motion: “Whether it is legally possible or not, it is a laudable aspiration.”
Three other Nationalists, SNP MSPs Annabelle Ewing, Gordon MacDonald, and Chic Brodie also backed the motion.
Ms MacDonald, a former deputy leader of the SNP, believes an amendment to the International Criminal Court (Scotland) Act 2001 could lead to charges necessary to successfully bring a prosecution against Mr Blair.
She said: “The Scottish Government should take the opportunity afforded by the independence of Scots law to complete the incorporation of international criminal law by introducing a simple amendment making illegal the waging of aggressive war with the intention of regime change.”
Her husband, the former SNP MP Jim Sillars, recently said Mr Blair knew such an “aggressive war” was a crime. He added: “He believed he was safe, there being no legal system that could touch him. There is one now – ours.”
The Scottish Government said the move was beyond Holyrood’s powers. A spokeswoman for Justice Secretary Kenny MacAskill said: “Desmond Tutu’s view that war in Iraq was illegal is one shared by members of the SNP Government.
“The UK Government has until 2017 to decide whether to ratify the amendments agreed under the Rome Statute in relation to the crime of aggression and we understand they have not yet reached a decision. We understand that action to legislate would likely fall outwith competence of the Scottish Parliament by virtue of the Scotland Act.”
Ms MacDonald could try to introduce a Private Member’s Bill but, given the Government’s view, it is thought unlikely she would be given the civil service support to draft it.Nobel Peace Prize winner Desmond Tutu said Mr Blair and Mr Bush behaved “like playground bullies” when they led Britain and US to war against Iraq.
In response, Mr Blair said his comments were “bizarre” and “nothing new”. Labour - led by Mr Blair from 1994 to 2007 - dismissed the motion yesterday.
A Scottish Labour spokesman said: “This is a stunt from those who want to continue to distract attention away from the failure of the SNP to address the real priorities for Scots: delivering growth, jobs and opportunities for our young people.
Dr James Sloan, a lecturer in international criminal law at Glasgow University, said it could be problematic to prosecute Tony Blair in Scotland.
He said: “The crime of aggression isn’t in existence within the existing treaty for the ICC, so effectively they would be going beyond the remit of the act. The treaty does make reference to the crime of aggression, but it’s not currently prosecutable. When they drew up the treaty they couldn’t agree on how to define aggression.
“Then in 2010, they did define it but provided that the crime would not be enforceable until 2017 and even then it will only be enforceable if a number of parties agree to it. You could argue that doesn’t preclude the Scottish government from introducing a statute making illegal the crime of aggression, but they would run into trouble trying to introduce retrospective legislation.
“It’s considered unfair to retrospectively make it illegal to do something that the person didn’t know was a crime at the time.”
Dr Sloan added that Mr Blair may also be subject to sovereign immunity because he was Prime Minister at the time he went to war.
Christine O’Neill, convener of the Law Society of Scotland’s constitutional law committee, said: “The Scottish Parliament can create new criminal offences provided that in doing so it does not otherwise exceed its powers. A new offence of the kind being suggested might be said to be outside the powers of the Scottish Parliament as relating to international relations and/or defence.
“There is some precedent, though, as the Scottish Parliament did pass the International Criminal Court (Scotland) Act 2001, which makes it possible to prosecute in Scotland crimes of genocide, crimes against humanity and war crimes even if those are committed outside of Scotland.”
Ms O’Neill added it would be more unusual, and contrary to legal principle and possibly the European Convention on Human Rights to create a new criminal offence retrospectively.
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