The court’s ruling – a mere seven pages long – and its implications for future decisions to go to war appear superficially attractive: the UK is a dualist state and as such international law needs domestic legislation to implement it as not to undermine Parliamentary sovereignty. Furthermore, precedent is at the very foundation of the UK’s judicial system. Upon closer inspection however, the reasons become far less convincing.
In R v. Jones et al, the leading case law for the crime of aggression, the House of Lords (HL) examined the question of whether individuals can rely upon the alleged prevention of crimes against peace to justify otherwise unlawful actions under English law.
The Nuremberg Trials however, were the first successful international criminal trials. Could the ‘Nuremberg Principle’ have seeped into the British common law, thus creating a domestic offence for which the Interested Parties could be indicted? This ingenious argument was rejected by the House of Lords (HL) in Jones, arguably changing the definition of the crime of aggression as previously establish by the Nuremberg Trials, in English law. Given the outcome of the case in question, it didn’t change it for the better.
Shannan Al Rabbat’s attempt to hold Mr. Blair et. al accountable for their roles in the Iraq war also has parallels with the 1998 detention of former Chilean dictator Augusto Pinochet in London, and the subsequent legal proceedings against him. Both raise fundamental issues of public international law and its interaction with the domestic law of individual countries. Can municipal courts properly complement international tribunals in the enforcement of international criminal law, and, if so, to what extent is a plea of immunity or non-justiciability available?
Whilst District Judge Snow held Blair had immunity, the UKHL ruled that Pinochet had no right to immunity from prosecution as a former head of state, and therefore could be put on trial.
The conflicting rulings as well as the divide within the HL in the Pinochet case, on the interpretation of the scope of application of customary international law in the domestic courts illustrates a more profound conflict. What values and interests should be accorded priority in contemporary international law?
In my opinion, neither jurisdictional immunities nor judicial self-restraint are consistent with the notion of crimes of international law and that the quest for normative coherence. Whilst the ruling in both the present case and the Pinochet case relied upon domestic law, in order to achieve coherence across the international plane as a whole, we need a reappraisal of the relationship between domestic law and international law.
Lord Thomas CJ’s declaration that "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.", ignores the point that it was the decision in Jones which was the departure from the established position as set out by Sir Hartley Shawcross in the late 1940s and by Sir Michael Wood in 2002.
In so far as the second part of this passage suggests that the HL found that the invasion of Iraq in fact did not amount to a crime in domestic English law (which the HL in Jones expressly said it would not do), it must be borne in mind that such a finding pre-dated the Chilcot Inquiry.
That all of the evidence is finally in the public domain must surely be a compelling reason why Jones should be departed from and the English common law recognise aggression as a criminal offence as it had previously done. A court could always still decide that the commencement of war in Iraq did not amount to aggression.
In not allowing for judicial review when new facts come to light, there is no way our judicial system can move forward with the times. In this way, it will always be stuck in, without learning from, the past.
A previous court decision upon which the High Court relied, which prevented them from creating a "new" domestic offence of aggression (Regina v Knuller) was decided in 1972, well after aggression had been recognised as an international crime and therefore, accepted into English common law. The HL consideration in that case concerned a criminal offence which had been previously created by the common law and which the House said could not now be modified other than through Act of Parliament.
By continuing to recognise it today, the domestic courts would not be creating a "new" criminal offence of aggression, just as they do not create a new offence by continuing to recognise the crime of misconduct in public office. As a result, the High Court's points about the importance of the need for certainty in the criminal law fall away.
In relation to the UK Parliament not having made provision in the Criminal Court Act 2001 for a domestic crime of aggression, the reason for this is obvious. Parliament was respecting the very nature of international law by not incorporating the crime of aggression. The provisions, as stipulated by the Rome Statute, had not yet been met. This is not to say that Parliament will not in future give effect to this crime in a further Act. The definition has only just been decided. Nevertheless, none of this affected the status of aggression as a crime in customary international law.
As aptly stated by Lord Bingham:
It is unhistorical to suppose that the elements of the crime were clear in 1945 but have since become in any way obscure’.
and by Lord Hoffman:
‘If the core elements of the crime are certain enough to have secured convictions at Nuremberg, or to enable everyone to agree that it was committed by the Iraqi invasion of Kuwait, then it is in my opinion sufficiently defined to be a crime, whether in international or domestic law.’
This illustrates that the core of the crime remains sufficiently defined and an act falling
under it remains criminal, no matter what the case may be in other situations which may
fall under disputed parts of the definition. A similar approach appears to have been
taken by the House of Lords to a criminal offence at common law: R v. Rimmington
[2005] UKHL 63, [2005] 3 WLR 982.
Since the end of World War II, states have made it clear that certain acts are attacks against the fundamental interests and values of the international community as a whole. If these statements are to be taken as more than rhetoric, states must bring their legislation in conformity with international law and give domestic courts the tools to enforce its rules. As the Pinochet case shows, the interpretation of domestic statutes in light of contemporary standards of international law may, at least in principle, remedy domestic legislation ambiguities and correctly implement the principles and rules of international law. The rule of statutory construction, widely applied in both common law and civil law jurisdictions, whereby domestic law should be interpreted as much as possible in conformity with international law, has a potential of application which should not be underestimated. Granted however, on a practical level, the absence of a permanent international criminal court makes international prosecution currently illusory.