Prosecuting Tony Blair and others

A Brief exposition of some of simpler issues that might arise for consideration upon determination of the informations.

[3] What is Customary International Law ?

In a manner which is very comparable to the familiar division of English Law into, on the one hand Statute Law, which is legislation whether primary or secondary etc., and on the other hand Common Law, which is to be gleaned from the decided authorities and precedents amongst English Case law ; so it is that International Law is divided into Conventional and Customary Law.

“Conventional Law” is the term which covers the entire body of written laws created or legislated by means of the many international treaties, agreements, accords, protocols and conventions etc., entered into by nation states, and whose terms and provisions are binding only upon those states, who have signed up to and ratified those said treaties etc., called states party, and also only to the extent that they have agreed to be so bound, by the attachment of conditions to their ratification.

Whereas, “Customary Law” is the entire body of International Law, derived from the established practices accepted as law by all civilised states, and the general principles of law as recognised by those states and to be determined by reference most especially to the adjudication of international courts and tribunals and as a subsidiary means the teachings of the most highly qualified publicists and jurists of the various nations

(see esp. Art 38(1) of the Statute of the International Court of Justice).

[ 4] What is so special about the “Nuremberg Principles”?

The “Nuremberg Principles”, whilst forming an element of, indeed the most fundamental and notorious part of, the customary rules of the international humanitarian laws of armed conflict, are exceptional in that they have undergone such an extensive, comprehensive & detailed codification and clarification, and furthermore such an affirmation & approval by the states comprising the international community of nations.

Firstly, in the 4-Powers Agreement signed in London on 8 Aug. 1945, setting out the Charter and Statute of the International Military Tribunal at Nuremberg on the Trial and Punishment of Major War Criminals, which declared those crimes to be pre-existing fundamental norms of customary international law. Secondly, the Judgment of the Nuremberg Tribunal itself and the principles of international customary law distilled thereby. Thirdly, due to the unanimous adoption of that Judgement and those Principles by the General Assembly of the United Nations at its First Assembly in 1946 (Motion 95). Finally, by virtue of the establishment of a written codification of those Principles by the International Law Commission of the United Nations pursuant to the authority of the General Assembly, and subsequently placed before it (1950). See copy of the Principles as set out by the ILC in attached document “Nuremberg Principles”.

[ 5] What is the “Jus Cogens” ?

This is described as being that part of the customary element of international law which has the force of a so-called “peremptory norm”, by which is meant that it must be honored, observed and obeyed by all nations in all circumstances. No exception, exemption or excuse can be justified even in the circumstances of prior breach by another state or in reprisals for such a prior act. The fact that a Crime Against Peace was a part of the Jus Cogens, was appreciated by the judgment of the International Court of Justice in its judgment on the “Nicaragua Case” ( Nicaragua v United States, [1986] ICJ Reports 14, at para 190).

[ 8] Surely “war crimes” in the general sense, including “crimes of aggression”, are now covered by the Rome Statute of the International Criminal Court 1998, and so covered in this country by the ICC Act 2001?

That this is so is undoubtedly true as regards the other two elements of customary humanitarian international law of armed conflict as set out in the “Nuremberg Principles”, specifically “War Crimes” and “Crimes Against Humanity”. However, as regards that element which is the subject of the present informations, namely “Crimes Against Peace”, whilst it is clearly intended ultimately to deal with this area of law under the Rome Statute process (see esp Article 5(2) and the title “Crime of Aggression”), international agreement between the states party has not yet been reached on the details of procedural implementation etc., and as such it is yet to be fully incorporated into the “Rome Process” and thus it is not yet covered by the incorporating Act of Parliament, namely the ICC Act 2001.

It is I suppose also worth noting then that, whereas under the entirely predictable "safety valve" provision of the ICC Act 2001 [see s.53(3)] anyone in this country who may wish to initiate crimminal proceedings under that statute for say "war crimes" (incld. grave breaches of the Geneva Conventions), "crimes against humanity" or "genocide" must first obtain the express permission of the Attorney General to do so (a so-called procedural fiat) ; whilst the commission of a "crime against peace" or an "act of aggression" remains yet to be incorporated into the "Rome Process" and therefore yet to be incorporated into the internal statute, but continues to be adopted into the common domestic law from customary international law instead, its prosecution remains untouched by the need for anyone's permission, including that of Lord Goldsmith as counselled advisedly by Christoper Greenwood. ("didums !")

[ 10] What of possible defences or excuses for invading Iraq which might be said to legally justify the conduct complained of ?

There are doubtless a potentially great number of possible excuses that the Accused Persons may seek to raise in their defence were they to be committed to trial on the charge as set out in the informations. Foremost amongst these one might predict an attempt to establish as lawful, in the international law on the conduct of nation states, the so-called "emergent" American doctrine of justifiable action taken in “anticipatory self-defence”, based on some putative future danger arising from the potential armament of international "Islamic Terrorists" by the hitherto secular and infidel Ba’ath Government in Baghdad!

Equally, one is aware of the current Attorney-General’s opinion, as apparently provided by a member of staff at the London School of Economics, that, despite deliberately not putting the issue to the vote in the Security Council of the United Nations, it was said for fear of a French veto, nevertheless there is some marvelous power, or should that be "shocking and awesome" power, in the capacity of the governments of the United Kingdom and the United States, when acting together, whereby they can “un-suspend” the executive provisions of earlier Security Council Resolutions, dating back over 12 years, declaring the terms of a “cease-fire”, without express or indeed legally implied authority of the required or specific majority of the Security Council, which suspended those provisions in the first place.

What of “delgatus non potest delgare” I know not.

Finally, it might be that the Accused Persons, when put to the test at trial, are able to produce the cogent and probative evidence of imminent and credible threat of assault, presumably by the use of the much vaunted "Weapons of Mass Destruction", upon this country or one of our international allies, thereby purporting to justify the need for immediate action, by way of forcible disarmament, taken in self-defense in the ordinary or common place understanding of that defence both in customary international and domestic common law.

Whatever that case may be, as with any person reasonably suspected of committing an offence under the Common Law, indeed as with any common murderer, the evidentiary burden of proof in establishing that there are reasonable grounds for justifying their prima facie unlawful conduct, by reference to "self-defence" or otherwise, rests with the Defendant in the first instance, the standard of proof being on the "balance of probabilities". It is only thereafter that the probabtive burden of proof shifts back to the Prosecution to rebut the then established defence beyond a reasonable doubt. I eagerly await the opportunity at trial to so rebut any such incredulous, nebulous and ‘flim-flam’ attempts at a “defence” for the enormous crime alleged. However, and in the meantime, these are not matters which fall for consideration at this preliminary and inchoate stage of proceedings before the Accused Persons are even before the Court with standing.

Robert L. MANSON
Brynymor Parrog
NEWPORT Pembs.
XX MAR MMIII

Peace Campaigner

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