Prosecuting Tony Blair and others

SPECIAL CONTENTIONS

Contention 1:

The 20th Century case law developments on the so-called rival schools of thought on the internal or domestic use of international customary law by municipal courts, i.e. adoption (incorporation) versus transformation (incorporation), clearly show that the common law has evolved by expanding upon the proud internationalist foundations & principles (established in the earlier line of 18th & 19th Century cases), in order to promote adoption by the common law, subject always to necessary and requisite conditions respecting the dominance of pre-existing common law principles and the supremacy of statute law.

At Part 7.1.2 of the Statement of Claim [Paras. 83-92 on pp.27 -29] a line of nine 18th and 19th Century case law authorities are quoted or cited, establishing the conventional historical lineage of the development of the doctrine of the ‘adoption’ of international customary law into the English common law. Many of the early cases concern the common law construction and application of an early statute regarding the legal immunities enjoyed by foreign ambassadors and their retinue.1 Thereafter, in Part 7.1.3 [Para. 93-96 @ p.29] three 20th. century authorities are quoted on the further development of the doctrine first established by those earlier authorities. My purpose now is to supplement those three case authorities with further 20th century examples, and further to specifically trace the developments on the limitations thereby placed upon the application of the doctrine.

The first case, West Rand Central Gold Mining Co. Ltd. v. Rex [1905] 2 KB 391 @ 406 per Lord Alverstone CJ, is the classic modern exposition on the doctrine of adoption. Having laid down the presumption in favour of the adoption of international custom “whenever legitimate occasion arises for [the municipal courts] to decide questions to which doctrines of international law may be relevant” 2 the Lord Chief Justice then goes on to lay down certain specific conditions or limitations upon the said adoption of international law, as follows :

“ But any doctrine so invoked must be one really accepted as binding between nations, and the international law sought to be applied must, like anything else, be proved by satisfactory evidence, which must shew either that the particular proposition put forward has been recognised and acted upon by our own country, or that it is of such a nature, and has been so widely and generally accepted, that it can hardly be supposed that any civilised State would repudiate it. The mere opinions of jurists, however eminent or learned, that it ought to be so recognised, are not in themselves sufficient. They must have received the express sanction of international agreement, or gradually have grown to be part of international law by their frequent practical recognition in dealings between various nations. “

That classic exposition received the express assent of the Court of Appeal some 20 yrs. later in the case of Commercial & Estates Co. of Egypt Ltd. v. the Board of Trade [1925] 1 KB 271 3 and some 40 yrs. later in the Judicial Committee of the Privy Council in the case of Molvan v. the A-G. for Palestine [1948] AC 351 4. Their Lordships in Council had, however, already considered the issue in the prior matter of Chung Chi Cheung v. the King [1939] AC 160 in which Lord Atkin for instance observed

(@ p.167-8) as follows :

“ It must always be remembered that, so far, at any rate, as the Courts of this country are concerned, international law has no validity save in so far as its principles are accepted and adopted by our own domestic law. There is no external power that imposes its rules upon our own code of substantive law or procedure. The Courts acknowledge the existence of a body of rules which nations accept among themselves. On any judicial issue they seek to ascertain what the relevant rule is, and, having found it, they will treat is as incorporated into the domestic law, so far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals. “

In wasn’t until 1976, however, that their Lordships in the House, on the other hand, had cause to consider the topic, at least as a related issue. In Oppenheimer v. Cattermole [1976] AC 249 Lord Cross of Chelsea for instance observed ( @ p.277-8) as follows :

“ A judge should, of course, be very slow to refuse to give effect to the legislation of a foreign state in any sphere in which, according to accepted principles of international law, the foreign state has jurisdiction. He may well have an inadequate understanding of the circumstances in which the legislation was passed and his refusal to recognise it may be embarrassing to the branch of the executive which is concerned to maintain friendly relations between this country and the foreign country in question. But I think - as Upjohn J. thought (see In re. a Claim by Herbert Wagg & Co. Ltd. [1956] Ch 323, 334) - that it is part of the public policy of this country that our courts should give effect to clearly established rules of international law. Of course on some points it may be by no means clear what the rule of international law is. Whether, for example, legislation of a particular type is contrary to international law because it is “confiscatory” is a question upon which there may well be wide differences of opinion between communist and capitalist countries. But what we are concerned with here is legislation which takes away without compensation from a section of the citizen body singled out on racial grounds all their property on which the state passing the legislation can lay its hands and, in addition, deprives them of their citizenship. To my mind a law of this sort constitutes so grave an infringement of human rights that the courts of this country ought to refuse to recognise it as law at all. “

(my emphasis added)

A year later, in 1977, the Court of Appeal was seized with resolving the issue as to whether they could adopt [incorporate] what they clearly perceived as being a well established, although relatively modern, development in the customary rules of international law on sovereign immunity, whereby such immunity was no longer applicable to cases of international transactions of a clearly commercial or mercantile character (so-called ‘restrictive doctrine’) ; or whether, instead, they were bound to continue to give effect to the previous doctrine of ‘absolute’ state or sovereign immunity, which applied equally to commercial transactions.

Lord Donaldson MR, giving the lead judgement in Trendtex Trading Co. ltd. v. the Central Bank of Nigeria [1977] 1 QB 529 (CA) @ p.553-4, in giving his seminal ruling on this topic, specifically saw the resolution in terms of whether one favoured the incorporation [adoption] approach, as opposed to the transformation [incorporation] approach, as follows 5 :

“ The two schools of thought.

A fundamental question arises for decision. What is the place of international law in our English law ? One school of thought holds to the doctrine of incorporation. It says that the rules of international law are incorporated into English law automatically and considered to be part of the English law unless they are in conflict with an Act of Parliament. The other school of thought holds to the doctrine of transformation. It says that the rules of international law are not to be considered as part of English law except in so far as they have been already adopted and made part of our law by the decisions of the judges, or by Act of Parliament, or long established custom. The difference is vital when you are faced with a change in the rules of international law. Under the doctrine of incorporation, when the rules of international law change, our English law changes with them. But, under the doctrine of transformation, the English law does not change. It is bound by precedent. It is bound to those rules of international law which have been accepted and adopted in the past. It cannot develop as international law develops. “

His Lordship then went on to review much of the previous case law history establishing, as he saw it, the two rival schools of thought. He cites the opinions of Lord Talbot L.-C. in Buvot v. Barbuit (1736) 3 Burr. 1481 and subsequently Lord Mansfield in Triquet v. Bath (1764) 3 Burr. 1478 and finally Lord Lyndhurst (in debate) in the House of Lords in 1853, as authorities for the incorporation (adoption) school of thought. Whereas, he then cites Cockburn C.J. in his infamous judgement in the case of the “Franconia”, namely Reg. v. Keyn (1876) 2 Ex.D 63 @ pp.202-3, and Lord Atkin in Chung Chi Cheung v. the King (1939), as above, and finally himself in Reg. v. Secretary of State for the Home Dept., ex p. Thakar [1974] QB 684 @ 701, as authorities favouring the transformation (incorporation) school of thought instead. He then continues as follows :

“ Which is correct ? As between these two schools of thought, I now believe that the doctrine of incorporation is correct. Otherwise I do not see that our courts could ever recognise a change in the rules of international law. It is certain that international law does change. I would use of international law the words which Galileo used of the Earth: “But it does move.” International law does change: and the courts have applied the changes without the aid of any Act of Parliament. Thus when the rules of international law were changed (by the force of public opinion) so as to condemn slavery, the English courts were justified in applying the modern rules of international law : see the “Statement of Opinion” by Sir Robert Phillimore, Mr M. Bernard and Sir H.S. Maine appended to the Report of the Royal Commission on Fugitive Slaves (1876), p.XXV, paras.4 & 5. Again, the extent of territorial waters varies from time to time according to the rule of international law current at the time, and the courts will apply it accordingly : see Reg. v. Kent JJ., ex p. Lye [1967] 2 QB 153, 173, 189. The bounds of sovereign immunity have changed greatly in the last 30 years. The changes have been recognised in many countries, and the courts -of our country and of theirs- have given effect to them, without any legislation for the purpose, notably in the decision of the Privy Council in The Phillipine Admiral [1977] AC 373.

Conclusion on this point. Seeing that the rules of international law have changed - and do change - and that the courts have given effect to the changes without any Act of Parliament, it follows to my mind inexorably that the rules of international law, as existing from time to time, do form part of our English law. It follows too, that a decision of this court - as to what was the ruling of international law 50 or 60 years ago- is not binding on this court today. International law knows no rule of stare decisis. If this court today is satisfied that the rule of international law on a subject has changed from what it was 50 or 60 years ago, it can give effect to that change - and apply the change in our English law - without waiting for the House of Lords to do it. “ 6

A decade or so later several commercial causes of action for compensation arose in this country following the financial collapse of the UN International Tin Council, and a question at issue was the liability of the Crown to make good for losses incurred by traders, and their banking backers, the UK having been a member state of the Tin Council. In the Court of Appeal the following highly significant observations were made by Nourse L.J. in his judgement in Maclaine Watson & Co. v. the Department of Trade [1988] 3 WLR 257 @ p.1115H et seq, as follows :

“ For up to two and a half centuries it has been generally accepted amongst English judges and jurists that international law forms a part of the law of this country, at all events if it can be shown that there is an established rule which, first, is derived from one or more of the recognised sources of international law and, secondly, has already been carried into English law by statute, judicial decision or ancient custom.

It would seem that the second of these requirements, which is based on what is known as the doctrine of transformation, could not be satisfied without the prior satisfaction of the first, but the circumstances of the present case require that they be separately identified. Beyond this common ground there was formerly a significant difference of opinion. The doctrine of transformation had a rival in the doctrine of incorporation, which holds that the rules of international law from time to time in force are automatically incorporated into the common law and, subject always to statute, are supreme. That rivalry was resolved in favour of incorporation by the decision of this court which established the restrictive doctrine of state immunity in English law : Trendtex Trading Corporation v. Central Bank of Nigeria [1977] QB 529, see in particular the judgement of Lord Denning MR., at pp.533B-554H, where many of the earlier cases are cited; see also Halsbury’s Laws of England, 4th. edn., Vol.18 (1977), para. 1403, pp. 718-719.

....

The proposition that international law can only form part of English law if there is an established rule in point is supported by the views of several respected judges, their authority being by no means diminished by the fact that some of them were expressed in support of the doctrine of transformation. : see Reg v. Keyn (1876) 2 Ex.D 63, 202-203, Cockburn CJ. and West Rand Central Gold Mining Co. Ltd., v. the King [1905] 2 KB 391, 406-408, Lord Alverstone CJ., Wills and Kennedy JJ. Perhaps the clearest statement was made by Lord Macmillan in Compania Naviera Vascongado v. SS Cristina [1938] AC 485, 497 :

“ Now, it is a recognised prerequisite of the adoption in our municipal law of a doctrine of public international law that it shall have attained the position of general acceptance by civilised nations as a rule of international conduct, evidenced by international treaties and conventions, authoritative text-books, practice and judicial decisions. It is manifestly of the highest importance that the courts of this country before they give the force of law within this realm to any doctrine of international law should be satisfied that it has the hallmarks of general assent and reciprocity. “

In this brief review of the 20th century evolution of the doctrine of adoption [incorporation], I should be remiss not to aver to their Lordships opinions in the House, in the very recent and notorious case of Generalissimo Augusto Pinochet Ugarte, the former military dictator of Chile.7 In Pinochet (No.3) [1999] 2 WLR 827, their Lordships exhibited no hesitation whatever in their willingness to refer to and apply doctrines and rules of well established customary international criminal law, in order to shed light upon the subject of the nature of the international law crime of torture 8. Of particular relevance to the present claim are Lord Brown-Wilkinson’s observations as follows :

“ Torture

Apart from the law of piracy, the concept of personal liability under international law for international crimes is of comparatively modern growth. The traditional subjects of international law are states not human beings. But consequent upon the war crime trials after the 1939-45 World War, the international community came to recognise that there could be criminal liability under international law for a class of crimes such as war crimes and crimes against humanity. Although there may be legitimate doubts as to the legality of the Charter of the Nuremberg Tribunal, in my judgment those doubts were stilled by the Affirmation of the Principles of International Law recognised by the Charter of Nuremberg Tribunal adopted by the United Nations General Assembly on 11 December 1946.

That Affirmation affirmed the principles of international law recognised by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal and directed the Committee on the codification of international law to treat as a matter of primary importance plans for the formulation of the principles recognised in the Charter of the Nuremberg Tribunal. At least from that date onwards the concept of personal liability for a crime in international law must have been part of international law. In the early years state torture was one of the elements of a war crime. In consequence torture, and various other crimes against humanity, were linked to war or at least to hostilities of some kind. ....

But there was no tribunal or court to punish international crimes of torture. Local courts could take jurisdiction: see Demjanjuk (supra); Attorney-General of Israel v. Eichmann (1962) 36 I.L.R.S. But the objective was to ensure a general jurisdiction so that the torturer was not safe wherever he went. For example, in this case it is alleged that during the Pinochet regime torture was an official, although unacknowledged, weapon of government and that, when the regime was about to end, it passed legislation designed to afford an amnesty to those who had engaged in institutionalised torture. If these allegations are true, the fact that the local court had jurisdiction to deal with the international crime of torture was nothing to the point so long as the totalitarian regime remained in power: a totalitarian regime will not permit adjudication by its own courts on its own shortcomings. “

(my emphases)

Finally, there is the opinion of Lord Millett, as regards which, whilst I must alas concur with the widespread criticism made of his bold suggestion in favour of a common law (non-statutory) “extra-territorial jurisdiction” in English courts for international customary law crimes which attract a “universal jurisdiction” under international law7 ; nonetheless, it is commendable for its forthright affirmation of the common law adoption of international customary law, as follows :

“ In my opinion, crimes prohibited by international law attract universal jurisdiction under customary international law if two criteria are satisfied. First, they must be contrary to a peremptory norm of international law so as to infringe a jus cogens. Secondly, they must be so serious and on such a scale that they can justly be regarded as an attack on the international legal order. ... The second requirement is implicit in the original restriction to war crimes and crimes against peace, the reasoning of the court in Eichmann, and the definitions used in the more recent Conventions establishing ad hoc international tribunals for the former Yugoslavia and Rwanda.

Every state has jurisdiction under customary international law to exercise extra-territorial jurisdiction in respect of international crimes which satisfy the relevant criteria. Whether its courts have extra-territorial jurisdiction under its internal domestic law depends, of course, on its constitutional arrangements and the relationship between customary international law and the jurisdiction of its criminal courts. The jurisdiction of the English criminal courts is usually statutory, but it is supplemented by the common law. Customary international law is part of the common law, and accordingly I consider that the English courts have and always have had extra-territorial criminal jurisdiction in respect of crimes of universal jurisdiction under customary international law. “

(my emphases added)

Accordingly, and on the basis of this long accumulated wisdom, I have no hesitation whatever in now contending that, irrespective of whether one favours adoption (incorporation) or transformation (incorporation)9, the very clear development of those doctrines over the course of the last century, by way of these weighty case authorities, has been to build upon the clearly positive internationalist foundations of the earlier 17th & 18th century authorities, to the present day point, where their Lordships of Appeal in Ordinary, have not the least hesitation themselves in resorting to and applying the well established principles and norms of customary international criminal law “whenever legitimate occasion arises for them to do so”. Naturally, always wary that any adopted / incorporated international law must not be inconsistent or in conflict with any established pre-existing principles of our common law 10, or equally, of course, with any provisions of the statute law.

So that frankly it must be the case that, at least the prima facie evidentiary burden of proof, must now rest upon those who would propound any contrary contention, namely that the internationally unquestioned customary law criminal offence of committing “a crime against peace”, or equally, the universally affirmed and acclaimed jus cogens rule prohibiting the resort to aggression by any State in the settlement of international disputes, is not capable of adoption or incorporation into the Common Law of England, subject to those given caveats.

To do otherwise unavoidably gives rise to the unedifying spectre that whilst this country will say one thing to other countries on the international plane, indeed, that its foremost judges will actively participate in international tribunals where former political leaders and constitutionally responsible officials are indicted, tried, convicted (and formerly executed) for such crimes, we take a different attitude today when it comes to applying those same rules and principles internally, to the behaviour and conduct of our own political leaders and officials. Such rank judicial hypocrisy is unsustainable and unworthy of the very worst tin-pot banana-republic dictatorship, that it should find a willing home in England is surely beyond credulity.

Therefore, this is why I now say that both of the Defendants to the present Claim, and most regretfully now Sullivan J. also, have failed and failed lamentably to perform their procedural duty, by the bald and vacant invocation of the meaningless expression “not known to English law”. I ask, nay I demand, in the name of justice, and over the bodies of 70 millions souls who gave their lives in two World Wars to outlaw such conduct in future, to know “why not” ?

1 That statute was 7 Ann Chpt. 12, as to which see esp. Viveash v. Becker (1814) 3 M.&S. 284 @ p.291

2 For the full quote see Para.93 on p.29 in the Statement of Case.

3 See the judgement of Bankes LJ @ p.282-3 as set out @ Para. 94 in the Statement of Case.

4 See the opinion of Lord ? @ p.369 as set out @ para.131 on p. 39 in the Statement of Case.

5 See also the judgement of Shaw LJ, who agreed with Lord Donaldson MR on this issue, as set out @ Para. 95 on p.29 of the Statement of Case.

6 As to the specific issue of the adopted rules of customary international law, versus the application of the doctrine of stare decisis in the English common law, see now the exposition under Contention 5 below.

7 See below in Contention 4 for a fuller exposition of their Lordships opinions, including a brief explanation of the facts in the case.

8 See especially the opinions of Lord Brown-Wilkinson under the title “Torture”, and also those of Lord Hutton regarding his citation and quotations, in extenso, of the 1946 UN General Assembly Resolution on the affirmation of the Nuremberg Principles, and also the subsequent 1950 Report of the International Law Commission on the formulation of those Principles, and also that body’s 1954 and subsequent 1996 amended Draft Code on Offences Against the Peace and Security of Mankind, and also the Preamble to Rome Statute on the International Criminal Court 1998.

9 As to which see now specifically the arguments set out in Contention 6 below

10 See now especially Contention 3 below on adopted international law versus established English common law, on the question of the “extra-territorial jurisdiction” in the criminal courts.

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