 Prosecuting Tony Blair and others
The Doctrine of Adoption.
Whereby customary international law comes to be adopted by the English common law.
International Conventional Law
In so far as the Crown chooses, in the exercise of its undoubted prerogative powers, to enter into obligations and duties, as between it and other nation states in the international arena, by the means of the concluding and ratifying of any of the many and various treaties, agreements, accords, protocols etc., that is a matter for it and those other states party to those agreements, as a matter of international conventional law. In deference to the doctrine of the “separation of
powers”, however, the Crown cannot legislate for or over the subject, otherwise than with the advice and consent of Parliament, by an Act of the Sovereign in Parliament Assembled. Such is an sine qua non of the constitutional settlement.
Accordingly, any such international treaty obligations cannot and will not be made or found binding upon individual subjects or servants of the Crown, unless and until the same be incorporated into the domestic law by means of an incorporating statute. Furthermore, if the terms and provisions of the said statute are found to be inconsistent or incompatible with any provision or element of the conventional law, then so far as the domestic courts are concerned the statue shall always prevail,
as representing the supreme law of the land.
The Customary Law of Nations
However, when moving to consider the provisions and terms of International Customary Law, as to the definition of which see the main body of this text, no such similar limitations apply, since no such defiance of the doctrine on the “separation of powers” is involved, the creation of the law not having involved any direct sovereign or prerogative act by the Crown. Instead as Sir William
Blackstone puts it in his famous work Commentaries on the Laws of England (1769)
“ in England ...the Law of Nations ...is ..adopted in its full extent by the common law, and is held to be a part of the law of the land ... without which it must cease to be a part of the civilised world. “
Book IV (Public) Chpt.V, page 67.
In international legal theory the explanation for this doctrine is grounded in the concept of the ‘the Comity of Nations’. Under this principle each sovereign nation state recognises that, as well as respecting the lex loci (local law) operable within the realm of each others nations, they shall respect also that it is in their own best interests, as well as the common interest of the Community of Nations as a whole, that the jus gentium (international law) is enforceable
internally or domestically, as well as being respected as between nation states themselves on the international plane.
The single modern English authority most widely cited as expressing this doctrine is the dictum of Lord Alverstone CJ in West Rand Central Gold Mining Co. v Rex [1905] :
“ Whatever has received the common consent of civilised nations must have received the assent of our country, and that to which we have assented along with other nations in general may properly be called international law, and as such will be acknowledged and applied by our municipal tribunals when legitimate occasion arises for those tribunals to decide questions to which doctrines of international law may be relevant.”
West Rand Central Gold Mining Co. v Rex [1905] KB 391 @ 406
This specific dictum received the later full approval of Bankes LJ when giving the leading judgment of the Court of Appeal in the matter of Commercial and Estates Co. of Egypt v The Board of Trade [1925] 2 KB 271 @ 283. However, more recent authority, were it needed, can also be found in the judgment of Shaw LJ as he then was, when giving judgment in the Court of Appeal, in Trendtex Trading v The Bank of Nigeria [1977] :
“ May it not be the true principle as to the application of international law is that the English courts must at any given time discover what the prevailing international rule is and apply that rule ? ... In the case of international law it is always part of the law to be applied, irrespective of any intention or agreement of the parties in suit. ... What is immutable is the principle of English law that the law of nations ... must be applied in the
courts of England. ...This view would appear to be in accord with the dictum of Lord Mansfield CJ in Heathfield v Chilton, 4 Burr. 2016, that “the law of nations will be carried as far in England as anywhere.” So also Lord Lyndhurst in 1853, “ The law of nations according to the decisions of our greatest judges is part of the law of England.”
Trendtex Trading v The Bank of Nigeria [1977] 1 QB 529 CA @ 578-79.
By way of precedent for the existence of a category of crime existing simultaneously at English common law and international customary law, British jurists have long pointed to the example of the ancient crimes of “Piracy” and “Brigandry”. According to the customary law of nations all states had a right and indeed a duty to suppress piracy and brigandry and to try pirates as universal enemies of humanity (hostis gentium), see especially the opening speech of the UK Chief Prosecutor
at Nuremburg, ( Sir Hartley Shawcross QC MP A-G.)
Indeed, it has only been since 1958 that, the crime of piracy at the common law has received a formal conventional legislative definition (Art15 Part II of the Geneva Convention on the High Seas 1958).
The Authority of Nuremberg
From this template a similar argument was constructed for the need for a universal jurisdiction in respect of a “war crime”, including the sub-category of crimes against peace. see for example the British Manual of Military Law, Part III, Para. 637 “War Crimes are crimes ex jure gentium [against the law of nations] and are thus triable by the courts of all States.”. At Nuremberg it was the proud boast of the Chief British Prosecutor, Sir Hartley Shawcross, (later Lord Shawcross), that:
“But then it is argued, even if the State is liable, it is only the State and not the individual who can be made responsible under International Law. That argument is put in several ways. States only, it is said, and not individuals, are the subject of International Law. But there is no such principle of International Law. One need only mention the case of Piracy or Breach of Blockade, or the case of Spies, to see that there are numerous examples of
duties being imposed by International Law directly upon individuals. War crimes have always been recognized as bringing individuals within the scope of International Law. In England and the United States our Courts have invariably acted on the view that the accepted customary rules of the Law of Nations are binding upon the subject and the citizen, and the position is essentially the same in most countries.. ... Shall we depart from that principle merely because we are here concerned with the
gravest offences of all - crimes against the peace of nations and crimes against humanity. The law is a living, growing thing. In no other sphere is it more necessary to affirm that the rights and duties of States are the rights and duties of men and that unless they bind individuals they bind no one. It is a startling proposition that those who aid and abet, who counsel and procure the commission of a crime, are themselves immune from responsibility. The international crime does not differ
from the municipal offence in this respect. “
Trial of Major German War Criminals:
Proceedings of the International Military Tribunal Sitting at Nuremberg, Germany. (Vol. 19, p427).
Whilst it will be pointed out by apologist for and defenders of the conduct of the Accused that those tried at Nuremberg where tried before an international tribunal, set up by and pursuant to the exercise of the multilateral treaty making powers of the victorious WWII Allies, nevertheless, the Nazi war criminals so indicted were tried under principles of customary international law, which as I have now shown and I respectfully submit clearly demonstrated, it has long
been the proud boast of our most renowned judges and jurist, will be carried as far in England (and presumably also Wales) as anywhere. In the words of Blackstone a part of the common law without which we would ceased to be a part of the civilised world.
Earlier Authorities
If further, and earlier, authority were needed to support this hitherto undoubted, indeed trite, rule of the common law, namely that the customary law of nations is thereby adopted "to its fullest extent", I would cite especially the notorius decisions in the field of diplomatic immunity, prior to the comprehensive 20th century legislative and statuory codification of the principles of diplomatic immunity in the "Vienna Convention" and the corresponding British incorporating statutes.
See especially the judgements of Lord Talbot L-C in Barbuit's Case (1036) cas.temp Talbot 281 @ 283, 25E.R. 777, Lord Mansfield in Triquet v Bath (1764) 3 Burr. 1478, 97 E.R. 936, and again in Heathfield v Chilton (1767) 2015 @ 4 Burr. 2016, 98E.R. 50, Lord Ellenborough CJ in Viveash v Becker (1814) 3 M&S 284 @ 284, 105 ER 619, Lord Abbott CJ in Novello v Toogood (1823) 1 B&C 554 @ 562; 107 ER 204.
See also in other and comparable fields, where international customary law was adopted fully into the commnon law, the judgements of Lord Best CJ in DeWurtz v Hendricks (1824) 2 Bing. 314 @ 315; 130 ER 326, Lord Turner LJ in Emperor of Austria v Day (1861) De G.F.&J.217 @ 251; 45 ER 861, Lord Eldon L-C in Dolder v Lord Huntingfield (1805) 11 Ves. jun. 283 @ 294; 32 ER 109, and finally Lord Ellenborough CJ again in Wolff v Oxholm (1817) 6 M&S 92 @
100; 105 ER 1177.
Conclusion
Well the time has now come to put those loud judicial pronouncements and boasts to the ultimate test. Do we mean what we said at Nuremberg, to justify stringing up von Ribbentrop and his friends who did not cheat the rope, or was it only ever a piece of “victor’s justice” not for “domestic consumption” ?
If the continuing application of the Nuremburg Principles is to be credibly accepted to form a vital and contemporary part of the humanitarian customary law of nations on the crimminal law applicable to armed conflict, and not merely an exercise of retroactive "victors' justice" following a successful military intervention ; then it follows that the history of the judicial application and enforcement of those Principles only by an international tribunal, established by international
and multilateral conventional means ex post facto, by states other than the national states of the accused persons, must be given a credible explanation consistent with what was said by and before the Tribunal itself.
That explanation must be seen as having been “needed” solely in order to exercise jurisdicition, where the domestic courts having jurisdiction over the lex loci have been unwilling or unprepared to act and have failed to do so, or perhaps especially where in other less happier lands and "tin-pot" dictatorships the lex loci actually prevents the prosecution of high officials of the state government and constitutional leaders for acts commited while in office, even for the
commission of the gravest of crimes, or what amounts to same thing grants them an unconditional immunity from the ordinary "rule of law". Not as here in England - where the law reigns supreme ? (see the separate paper on the effect of the “Royal Prerogative”).
I respectfully submit that it is for those who would seek to make a valid distinction and difference between applying international customary law to our own domestic common law, only in so far as it effects or applies to the determination of a common law issue , as raised under the consideration of a pre-existing exclusively domestic cause of action or crime; to say why it does not also extend to the recognition of a category of crime itself, to which people are personally liable
under the common law, which itself please note has always maintained that a “breach of the peace” of the realm is the fundamental crime against the common law of the land and the commonweal of the subjects of the Crown.
Where is the logic in jurisprudence to accept for argument sake that one many be guilty of a crime against international peace, which rule of the customary law of nations is fully a part of the common law of this country and recognisable as such by the courts of this country ; but yet say that this doesn’t mean one is then also guilty of a breach of the peace of this country, and against the common law of this country?
There were those at the time and today who, quite rightly, question the legality and right of the state of Israel to effectively kidnap former SS-Obersturmbannfuhrer Adolf Eichmann and put him on trial for War Crimes, including Crimes Against Humanity. Yet, since Nuremberg, none may seriously question the right of the High Court of Israel to find him personally and individually liable for that atrocious crime once he was then before them.
I seek not the kidnap of the Accused Persons, I seek not to take the law into my own hands. However, I do seek for this honourable court to seriously and conscienciously examine this information, and this momentous issues of crime and criminal procedure and process involved, if not for its own sake and not for the sake of the common weal, then for the peace of the realm today and the peace of the world for future generations hopefully yet to come. I so lay the attached informations before
you and ask for summons to issue.
Robert L. MANSON XXIII MAR MMIII
Peace Campaigner
Brynymor, Parrog NEWPORT Pembs.
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