Were the court to refuse to issue summonses in this cases, it would be denying the validity of the whole of the Nuremberg Tribunal process by which Britain prosecuted, convicted and punished leaders of Nazi Germany after the Second World War. If Nuremberg justice was valid, then this request for summonses is valid.
(A) Do the first two offences exist in English law?
1. OFFENCE UNDER INTERNATIONAL LAW
a. It is generally accepted that aggression is a crime under customary international law. Any number of sources could be quoted to support this view. One example is Shaw1 pp471-473 and 185.
b. The Charter of the Nuremberg Tribunal2 established by Britain, France and the USA after the Second World War provided an explicit statement of this customary international law crime. The Tribunal itself tried a number of German political leaders for this crime, imprisoning and executing a number of them.
c. The International Law Commission3 report commissioned by the UN and formally agreed by the UN General Assembly4 stated that aggression was a crime under customary international law.
d. The Statute5 of the newly established International Criminal Court explicitly accepts that aggression is a crime under international law. Under the Statute, this crime falls within the jurisdiction of the ICC, although the ICC cannot exercise this jurisdiction in practice until certain other conditions have been met.
1. SPECIFIC OFFENCES
a. The Charter of the Nuremberg Tribunal2 provides a usable statement of offences including:
“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.”
1. ENGLISH LAW AND INTERNATIONAL LAW
a. International law consists of customary international law and treaty law. International treaty law is made explicitly by treaty or other similar instrument. Customary international law is established by its general acceptance by nations. Customary international law can, and does, develop over time.
b. Treaty law does not become part of English law unless it is explicitly transformed into English statute law by an Act of Parliament.
c. It is well established that customary international law is automatically incorporated into English common law unless it contradicts statute law or a prior precedent. No legislative or other action is required to achieve this incorporation. See Shaw1 pp105-110.
(B) Can an individual political leader be tried for the first two offences?
1. INDIVIDUAL RESPONSIBILTY
a. The Charter of the Nuremberg Tribunal2 accepted that, under customary international law, there is individual criminal liability, not just state liability, for aggression.
“The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:”
b. The International Law Commission3 report stated that, under customary international law:
“Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.”
c. The Statute of the International Criminal Court5 accepts that, under customary international law, there is individual criminal liability, not just state liability, for aggression.
1. RESPONSIBILITY OF POLITICAL LEADERS
a. The nature of the crime of aggression, and its associated crimes, is that those who commit it are necessarily political leaders. No-one else has the capacity to commit it. It would be an evident nonsense to have a crime of aggression but hold political leaders immune from prosecution for it.
b. The Nuremberg Tribunal6 accepted that, under customary international law, there is individual criminal liability on the part of political leaders for aggression.
c. The International Law Commission3 report stated that, under customary international law:
“The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible government official does not relieve him from responsibility under international law.”
d. The Statute of the International Criminal Court5 accepts that there is individual criminal liability on the part of political leaders for aggression:
“Article 27 Irrelevance of official capacity
1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as Head of State or Government, a member of a government or parliament … shall in no case exempt a person from criminal responsibility …”
e. The other international tribunals accept that, under customary international law, there is individual criminal liability on the part of political leaders for crimes under international law. An example is the prosecution of Milosevic by an international tribunal.
(C) Do the last two offences exist in English “municipal” law?
1. CONSPIRACY TO INCITE TO MURDER
a. In English law it is a criminal offence - murder - intentionally to kill someone without lawful excuse.
b. A soldier killing an enemy soldier in obedience to an order is normally considered to have lawful excuse. However, if the order itself is unlawful, it does not provide a lawful excuse. This latter point was confirmed at Nurmeberg, where Nazi defendants argued that they had just been following orders.
c. In English law it is a criminal offence, under the Offences Against the Persons Act 1861, to incite anyone to commit murder. Giving an unlawful order to a soldier to kill someone is incitement to murder
d. In English law it is a criminal offence to conspire with another person or persons to commit a criminal offence. Conspiring to incite to murder is therefore a criminal offence.
e. Conspiring to incite to murder is a substantive statutory offence under the Offences Against the Persons Act 1861.
(D) Can an individual political leader be tried for the last two offences?
1. NO BAR
a. There is no bar in English law to the prosecution of a Prime Minister or other Minister.
b. The gravity of the offences makes prosecution imperative.
(E) Is there a prima facie case?
1. ACTS TO BE PROVED
a. The acts necessary to prove the first two offences are generally known and easily proved:
(i) the defendants have planned war against Iraq
(ii) the defendants have prepared war against Iraq
Indeed, their planning and preparation have come to fruition.
b. The acts necessary to prove the third offence are generally known and easily proved:
(iii) the defendants agreed
together (and with others) to …
(iv) … order members of the British armed forces to invade Iraq
c.
The acts necessary to prove the fourth offence are generally known and
easily proved:
(v) Mr Blair has ordered British forces to invade Iraq.
1. UNLAWFULNESS OF WAR TO BE PROVED
a. What is happening is an invasion of one sovereign country, Iraq, by the armed forces of other countries, principally the United States and the United Kingdom. Prima facie that is aggression.
b. The UN Charter9 opens with the words:
“We the Peoples of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind …”
Article 2 of the UN Charter9 includes:
“3. All members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
4. All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state …”
c. Despite the UN Security Council being seized of the matter which the US and the UK claim as causus belli, the US and the UK did not seek Security Council authority for the invasion because they knew that it would not be forthcoming.
d. The US and the UK have produced no evidence for their claim that Iraq has weapons of mass destruction.
e. Both the US and the UK have stated that a principal, or even primary, war aim is the removal of the current Iraqi political leader and regime. There are no circumstances in which this war aim is legal under customary international law.
f. There are no circumstances in which this war aim is not in breach of the UN Charter, which states:
“Article 2
1. The Organization is based on the principle of the sovereign equality of all its Members.
…
7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state …”
g. Qualified legal opinion is overwhelmingly that the present war is illegal.
(E) Is there any other bar to the issue of summonses
1. CONSIDERATIONS IN ISSUING A SUMMONS
a. According to Bing7 pp 6-7
“In exercising a discretion whether to grant a summons a justice must ascertain
(i) whether the allegation is of an offence known to the law, and if so whether the essential ingredients of the offence are prima facie present;
(ii) whether the offence is out of time;
(iii) whether the court has jurisdiction;
(iv) whether the informant has the necessary authority to prosecute.
a. According to Bing7 p 7, circumstances to be considered
“… may include the fact that the incident in question has already been investigated by a responsible authority, and a decision had been taken as to the charges to be preferred in respect of it. Justices should be slow to issue a summons to a private prosecutor where the defendant had already been charged at the behest of the Crown.”
b. According to Bing7 p 7,
“… a justice must consider whether the allegation is vexatious …”
and according to Sprack8
“…there is still a residual discretion not to issue a summons if the prosecution appears frivolous or vexatious …”
There are no grounds for regarding this case as frivolous or vexatious. The allegations are of the most serious possible nature.
If the court were to refuse to issue, it would be saying that Nuremberg was just a kangeroo court dispensing vengeance on behalf of the victors. It would be saying that the law can be broken with impunity by the powerful.
[1]
Malcolm N Shaw
International Law, 4th edition
Cambridge University Press, 1997
[2]
Charter of the Nuremberg Tribunal
[3]
International Law Commission
Principles of international law recognized in the charter of the Nuremberg Tribunal and in the judgment of the Tribunal
ILC Report of 2nd session, 1950, document A/1316
[4]
UN General Assembly acceptance of ILC report
[5]
Rome Statute of the International Criminal Court
Document A/CONF.183/9 of 17 July 1998 as corrected 10 November 1998 to 16 January 2002
[6]
Trial record of Nuremeberg
[7]
Inigo Bing
Criminal Procedure and Sentencing in the Magistrates Court, 4th Edition
Sweet and Maxwell, 1996
[8]
John Sprack
Emmins on Criminal Procedure, 9th edition
Oxford University Press, 2002