#WarCrimes #HighCourt Judges defy Reason to protect #TonyBlair!

High Court Judges Defy Reason to Protect Tony Blair ~ Craig Murray, 31 July 2017.

There were a number of errors (by me) in this original posting and therefore I have decided to remove it now I have seen the judgement itself. That these errors were in large part caused by erroneous mainstream media reports is a fact, but not an excuse for my being so outraged I rushed in without checking.

In fact, the judgement does accept there is a longstanding crime of waging aggressive war as part of international law, and does not (contrary to the Guardian’s report) argue at all that the international law only came into existence recently.

It argues however that international law is only captured in UK Law when this is done specifically through an Act of Parliament. Indeed the judgement goes so far as to state:

“the clear principle that it is for Parliament to make such conduct criminal under domestic law. Parliament deliberately chose not to do so.”

This surely is problematic. The judgement states that the UK, deliberately, does not follow international law in its domestic law. So the UK is an institutionalised rogue state. Its internal arrangements allow its rulers, its armed forces and other actors to commit international crimes and flout international law with no fear of domestic repercussion as a matter of conscious choice.

It would not be beyond the wit of man to draft domestic legislation making it a crime for those acting in service of the British state to breach international law; it would not be necessary to have separate legislation enacting each piece of international law individually. Separate legislation is however possible and often done – when in the FCO I was often concerned with the enactment of treaty or other international obligations into domestic law, which is generally by secondary legislation.

When Sir Michael Wood, the FCO’s chief legal adviser, told Jack Straw it would be illegal to invade Iraq, Straw replied that there was no court that could try the case. The full significance of that did not really strike me until today. It is no accident; the UK is deliberately set up to be psychopathic entity, its elite breaking international law at will, with no fear of retribution.


 

Tony Blair Lord Levy

 


– – – – – – – – – – – – – – – – – – – – –
Neutral Citation Number: [2017] EWHC 1969 (Admin)
Case No: CO/1025/2017
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT OF THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 31/07/2017
Before:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
and
MR JUSTICE OUSELEY
– – – – – – – – – – – – – – – – – – – – –
Between:
Regina (on the application of General Abdulwaheed
Shannan Al Rabbat)
– and –
Westminster Magistrates’ Court
-and-
(1) The Rt Hon Tony Blair
(2)The Rt Hon Jack Straw
(3) The Rt Hon The Lord Goldsmith
-andHM
Attorney General
– – – – – – – – – – – – – – – – – – – – –
Claimant
Defendant
Interested
Parties
Intervener
– – – – – – – – – – – – – – – – – – – – –
Michael Mansfield QC, Antonia Benfield, and Abdul-Haq Al-Ani (instructed by Imran
Khan and Kate Ellis of Imran Khan and Partners) for the Claimant
James Eadie QC and Melanie Cumberland for the Intervener
Hearing date: 5 July 2017
Approved Judgment
Judgment Approved by the court for handing down. R (Al Rabbat) v WMC
Lord Thomas of Cwmgiedd, CJ:

1. This is the judgment of the court.

The issue

2. The application before us made by Mr Mansfield QC on behalf of the claimant,
General Abdulwaheed Shannan Al Rabbat, is an application for permission to bring
proceedings for judicial review of the decision of District Judge Snow at the City of
Westminster Magistrates’ Court on 24 November 2016. His decision was a refusal to
issue a summons for a private prosecution of the Interested Parties in respect of what
is contended to be the crime of aggression under the law of England and Wales. That
crime is said to have been committed by the Interested Parties through their
participation in the decision made in 2003 to invade Iraq and overthrow the regime of
President Saddam Hussein.

3. On 29 March 2006 the House of Lords unanimously decided in R v Jones (Margaret)
[2007] 1 AC 136, in the context of the invasion of Iraq, that although there was a
crime of aggression under customary international law, there was no such crime as the
crime of aggression under the law of England and Wales. The leading judgments
were given by Lord Bingham and Lord Hoffmann. This court is bound by that
decision.

4. It is contended on behalf of the claimant that the House of Lords was in error and that
there is a crime of aggression under the law of England and Wales. Although it is
accepted that we are bound by that decision, it is contended we should grant
permission so that the Supreme Court, under the Practice Statement of 26 July 1966
[1966] 1 WLR 1234, can review the decision in Jones in the circumstances that now
pertain and depart from it.

5. If we were to grant permission, when, as is inevitable, the claim failed in this court, it
is contended we should certify a general point of law of public importance as to the
correctness of the decision in Jones.

6. HM Attorney General, whom we allowed to intervene, contended we should refuse
permission as the claim was “hopeless”; the crime of aggression was unknown to the
law of England and Wales; there was no arguable basis for supposing that the
Supreme Court would depart from the decision in Jones.

7. The Interested Parties have taken no part in this application so far. They may seek to
take part in the event permission were granted.
The submissions of the claimant

8. The submissions of the claimant advanced by Mr Mansfield QC had six principal
limbs:

i) Article 6 (a) of the Charter for the International Military Tribunal at
Nuremberg had given that Tribunal jurisdiction over:
“CRIMES AGAINST PEACE: namely, planning,
preparation, initiation or waging of a war of aggression, or a
war in violation of international treaties, agreements or
assurances, or participation in a common plan or conspiracy
for the accomplishment of any of the foregoing;”

Judgment Approved by the court for handing down. R (Al Rabbat) v WMC
As the then Attorney General, Sir Hartley Shawcross QC, had made clear in
his address to the Tribunal, that Article was merely declaratory of an existing
principle of international law. From that time it was clearly established that
the crime of aggression was a crime under international law and of sufficient
certainty that prosecutions before an international tribunal could be brought.

ii) The report of the inquiry into the invasion of Iraq conducted under the
chairmanship of Sir John Chilcot published on 6 July 2016 showed that there
was a case for the Interested Parties to answer for the crime of aggression.
Saddam Hussein had not posed an immediate threat to the interests of the UK,
the intelligence regarding weapons of mass destruction was presented with
unwarranted certainty, the invasion was not necessary and the invasion had
been undertaken without the authority of the UN Security Council.

iii) As there was that case for the Interested Parties to answer in respect of the
crime of aggression under international law, the Interested Parties should be
tried before a court so that they could be held to account for their criminal
breach of the law.

iv) It was not possible for a prosecution to be brought under the Rome Statute or
before any other international court. The courts of England and Wales
therefore had to try the Interested Parties as otherwise they would not be held
to account and there would have been a failure to uphold the rule of law.

v) It was therefore necessary to reconsider the decision in Jones so that those who
had been responsible for the war in Iraq could be held properly to account in a
court of law in England Wales. The international community had held those
responsible for the Second World War to account by prosecuting those who
were thought responsible for aggression at the trials at Nuremberg. It was the
duty of the UK courts to follow that example. Without such a prosecution
there would be no accountability for the breach of the law.

vi) Apart from the issue of policy, the decision in Jones was on analysis in any
event wrongly decided.

Our starting point: the crime of aggression under international law.

9. It is not disputed by the Attorney General that it is well established that there is a
crime of aggression under international law of sufficient certainty for a prosecution to
be brought against those who commit such a crime. However, the issue before us is
whether there is such a crime under the law of England and Wales so that a
prosecution can be brought before the courts of England and Wales.

10. We therefore turn to examine that question for, if there is no such crime, it would be
unfair to the Interested Parties and inapposite for us to examine the contention that
there was a case to answer.
Events on the international plane since 1998
Judgment Approved by the court for handing down. R (Al Rabbat) v WMC

11. We turn first to examine Mr Mansfield QC’s contention that there has been a failure
to implement on the international plane the provision for jurisdiction and process
necessary to prosecute those who commit the crime of aggression.

12. The Rome Statute (as adopted on 17 July 1998) established the International Criminal
Court and came into force on 1 July 2002. It gave the Court under Article 5.1 (d)
jurisdiction over the crime of aggression. Article 5.2, however, provided that the
jurisdiction over that crime should be postponed until that crime had been defined in
accordance with the provisions of Article 121 (for amendments) and 123 (for a review
of the Statute).

13. In accordance with Article 123 a review conference was held in Kampala in 2010. On
11 June 2010, Resolution RC/Res.6 was adopted at Kampala setting out a definition
of the crime of aggression (to be inserted into the Rome Statute as Article 8 bis), a
provision for the exercise of jurisdiction over that crime (to be inserted into the Rome
Statute as Article 15 bis) and a provision creating jurisdiction by referral of the
Security Council (to be inserted into the Rome Statute as Article 15 ter).

14. Each of those provisions requires ratification or acceptance. Paragraph 2 of Article 15
bis and Article 15 ter provide:
“The Court may exercise jurisdiction only with respect to
crimes of aggression committed one year after the ratification
or acceptance of the amendments by thirty States Parties.”

15. 34 States Parties have ratified the amendments; the 30th State Party ratified on 26 June
2016. Before any jurisdiction can be exercised, a decision has to be made by the same
majority as is required for an amendment to the Rome Statute. A working group had
been set up, but no such decision had yet been made. It would therefore appear that at
the present time no prosecution can take place before the International Criminal Court
for the crime of aggression committed before 26 June 2017.

16. Although we are therefore prepared to accept the submission that at the present time
there can be no prosecution before the International Criminal Court for a crime of
aggression committed before 26 June 2017, the question whether the courts of
England and Wales can try the crime of aggression as a crime under the law of
England and Wales depends on the reasoning of the decision in Jones (which decided
there was no such crime under the law of England and Wales) and whether there is
any prospect that the Supreme Court would decide that the reasoning was wrong or no
longer applicable.

The decision in Jones

17. The appellants in Jones had been charged with various offences relating to direct
action they had taken at an operational military airbase in the UK. They contended
that they had a defence to those offences on the ground that the activities being
carried on at the military bases were unlawful as they were carried out in pursuit of a
crime – the war of aggression in invading Iraq. In holding that there was no crime of
aggression under the domestic law of England and Wales, Lord Bingham, giving the
principal judgment, held:
Judgment Approved by the court for handing down. R (Al Rabbat) v WMC

i) Although the crime of aggression was a crime under international law, it had
not been incorporated or assimilated into domestic criminal law; such a crime
was not automatically incorporated as it required a statute to incorporate it.

ii) It was clear from the decision in R v Knuller [1973] AC 435 that a new
criminal offence could only be created by Act of Parliament; no new offence
could be created by the common law. Parliament had since 1945 legislated to
create several criminal offences reflective of international law. However,
when giving effect to the Rome Statute by the International Criminal Court
Act 2001, Parliament had not included the crime of aggression in the offences
created under the act. Lord Bingham said at paragraph 28:
“It would be anomalous if the crime of aggression, excluded
(obviously deliberately) from the 2001 Act, were to be
treated as a domestic crime, since it would not be the subject
of the constraints (as to the need for the Attorney General’s
consent, the mode of trial, the requisite mens rea, the
liability of secondary parties and maximum penalties)
applicable to the crimes which were included.”

iii) There were good reasons for not departing from that principle and creating the
crime of aggression. In the first place a charge of aggression made against a
leader would presuppose commission of the crime by his own state or foreign
state. A decision on the charge would involve a decision in the courts on the
culpability in going to war, but there were well established rules that courts
would be slow to review the exercise of prerogative powers in relation to the
conduct of foreign affairs and the deployment of armed forces.

iv) Lord Hoffmann reached the same conclusion for two reasons. First was his
reliance on the democratic principle that it was for Parliament alone to decide
whether conduct not previously regarded as criminal should be made a
criminal offence. Second, in the absence of statutory authority, prosecution of
the crime of aggression in a domestic court would be inconsistent with a
fundamental principle of the constitution – see paragraphs 63 to 67 of his
judgment.

The prospects of the Supreme Court departing from the decision in Jones

18. In our opinion there is no prospect of the Supreme Court holding that the decision in
Jones was wrong or the reasoning no longer applicable.

19. First, we can see no basis for contending that the House of Lords erred in its
conclusion (as set out at paragraph 22 of the judgment of Lord Bingham) that the
crime of aggression under customary international law was not assimilated into
domestic law. We accept, as we have set out, that the crime of aggression is a crime
under international law, but the reasons given by Lord Bingham for the decision that
such a crime is not automatically assimilated into the domestic law of England and
Wales are unassailable.

Judgment Approved by the court for handing down. R (Al Rabbat) v WMC

20. The Practice Statement of 26 July 1966 in which the House of Lords set out the
circumstances in which it might depart from a previous decision where it appeared
right to do so made clear:

“In this connection they will bear in mind the danger of
disturbing retrospectively the basis on which contracts,
settlements of property and fiscal arrangements have been
entered into and also the especial need for certainty as to the
criminal law.”

The fundamental importance of certainty in the criminal law was underlined in
Knuller by Lord Reid at 455C and by Lord Simon at 488H to 489. In R v G [2004] 1
AC 1034 the House of Lords departed from their previous decision on recklessness
because of the compelling reasons set out at paragraphs 32-39 of the judgment of
Lord Bingham. It would not otherwise have done so. There is no reason, let alone a
compelling reason, for departing from the decision in Jones. Indeed, the fact that the
invasion of Iraq was held not to be a crime in domestic law in 2006 provides a
compelling reason why Jones should not be departed from.

21. We have also considered the degree of academic criticism of the decision in Jones.
On occasions academic criticism has been seen as providing a basis for departing
from a previous decision (as was the case in R v G at paragraph 34). Our attention has
been drawn to (1) a passage in the chapter in The Iraq War and International Law
(2008) by Rabinder Singh QC (as he then was) Justiciability in the Areas of Foreign
Relations (at pages 255-257), (2) a passage in Professor Cryer’s Oxford Companion
to International Criminal Justice (at p 881), (3) an article in Global Research (7
November 2015) by Professor Nick Grief entitled Why can’t Tony Blair be
Prosecuted for the Crime of Aggression? and (4) a paper by Pal Wrange The Crime of
Aggression and Complementarity in International Criminal Justice from the Rome
Statute to its Review (2010). These commentaries either contain no or no persuasive
criticism of the decision in Jones. We have also noted that Jones was discussed in R
(Keyu) v Foreign Secretary [2016] AC 1355 at paragraphs 144-151 without any
suggestion that it did not represent clearly and correctly decided law on the
incorporation of customary international law into domestic law.

22. Finally we have considered whether the effect of the decision presents any practical
problems (as discussed in Horton v Sadler [2007] 1 AC 307) or whether there has
been a change in the legal landscape (a term used in Knauer v Ministry of Justice
[2016] AC 908 at paragraph 23) justifying a departure from Jones. We see the force
of Mr Mansfield’s contention that if there is a crime of aggression under international
law, there should be a means of prosecuting it, as otherwise the rule of law is
undermined.

23. However, it is evident from the events that have occurred on the international plane
(to which we have briefly referred at paragraphs 12-16 above) that the prosecution of
the crime of aggression before an international court presents significant practical
difficulties. The existence of such difficulties cannot in any way justify the domestic
courts of England and Wales departing from the clear principle that it is for
Parliament to make such conduct criminal under domestic law. Parliament
deliberately chose not to do so. The courts cannot usurp that function. It is for
Parliament and Parliament alone to make the decision. Furthermore, there is no
Judgment Approved by the court for handing down. R (Al Rabbat) v WMC
answer to the practical and constitutional difficulties identified by Lord Bingham and
Lord Hoffman that would arise if a prosecution was brought without clear statutory
provision. The issues that have arisen on the international plane make no difference
to the bases of the decision in Jones.

24. For all these reasons therefore we have concluded that there is no prospect of the
Supreme Court departing from the decision in Jones.

The position in a Judicial Review

25. It is argued, however, that as a Divisional Court of the Administrative Court it is not
our function to act as a gatekeeper by making the decision on what the prospects are
of the Supreme Court departing from a previous decision. That it is said can only be a
matter for the Supreme Court and we should therefore grant permission so that it can
make that decision itself.

26. No one was able to refer us to any authority where this court has had to decide on the
approach the Divisional Court of the Administrative Court should adopt in
determining whether it should grant permission to bring judicial review proceedings
in a case seeking to overturn a previous decision of the House of Lords or Supreme
Court.

27. In contrast to proceedings before the civil courts where there is no restriction on the
bringing of proceedings, permission is required to bring proceedings for judicial
review and the court has a duty to determine the issue of permission. In our opinion,
the requirement of permission obliges us to form a view on the prospects of success of
any claim, even where, as in the present case, the legal question is one of substantial
general public importance.

28. We are not simply required to leave the matter as an issue for decision by the
Supreme Court. Having formed the view that there is no prospect of the Supreme
Court overturning the decision in Jones, it is our duty to refuse permission to bring the
proceedings for judicial review.


 

double-standardUS


What the High Court did not do today about Tony Blair and war crimes ~ Jack of Kent, 31st July 2017

You will read – on social media and elsewhere – that today the High Court decided to not prosecute Tony Blair (and others) for war crimes.

The High Court did not make that decision.

First, the High Court was not being asked to make a decision on whether Blair should be prosecuted.  That would be a decision for a criminal court – to permit a private prosecution.

The decision today was about whether a decision not to permit such a prosecution was lawfully open to the criminal court.  The High Court held that it was not open to a criminal court to give that permission.  So: one step away from a decision to allow any prosecution.

Second, the High Court was bound by a 2006 decision of the House of Lords (the predecessor to the current Supreme Court).  So: it was in 2006 that the decision was made that the waging of aggressive war was not a domestic crime, and not today.  All the High Court did today was follow a decision more than ten years’ old.

Today the High Court made neither a decision to not prosecute for war crimes nor new law.  The High Court instead said somebody else could not make the decision, and did so by applying old law.

Read the judgment for yourself.

 

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