Prosecuting Tony Blair and others

SPECIAL CONTENTIONS

Contention 2:

Existing statutes, incorporating various aspects of international law, do not demonstrate any proven need for statutory incorporation to give internal domestic effect to universal and peremptory norms and rules of customary international criminal law, the so-called ‘jus cogens’, most especially when of an ‘erga omnes’ character.

There is, in point of fact, no instance of Parliament, ever having legislated, specifically in order to give internal domestic effect to a customary rule or norm of international criminal law, and which, it might be said, demonstrated the need for such incorporating legislation in order to achieve that end, in contraindication to the authoritatively established doctrine of common law adoption of customary international law. Such legislation as there is, incorporating international criminal law, is exclusively occasioned, by one of two reasons.

Firstly, by the need to give internal (legislative) effect to the provisions of an international treaty, which is therefore an element of international conventional law (rather than customary law), as required in order to observe the constitutional supremacy of Parliament. This is because were the courts otherwise able to uphold rights enjoyed by, or equally enforce duties imposed upon, the subjects of the Crown, which derived exclusively from the terms as set out in, or the principles established by, an international treaty provision, without having first been incorporated by a statute ; then in effect, by acceding to and ratifying that treaty, on the international plane, the Crown would then have effectively legislated for the subject without the consent of Parliament, which would be in defiance of the constitutional supremacy of Parliament.(1)

This explains the need for legislation in order to incorporate international conventional crimes such as genocide (2), torture (3) and grave breaches of the 1949 Geneva Conventions (4).

Secondly, in order to create a specific and special “extra-territorial jurisdiction” (5) in the municipal courts, so as to enable offences to be prosecuted here even when committed abroad, either by British nationals, or, in certain exceptional instances, even by foreigners (6).

It is both of these considerations in combination which fully explains the legislative purpose of Part V of the contemporary International Criminal Court Act, 2000, and to which the First defendant makes reference. Section 50(1) now sets out the domestic definition of the crimes of genocide, crimes against humanity and war crimes, by reference to the corresponding provisions of the Rome Statute on the establishment of an International Criminal Court, 1998, a recent addition to the corpus juris of international conventional criminal law ; and in s.51(2)(b) also creates an extra-territorial jurisdiction so far as regards these crimes being committed abroad by a United Kingdom national, a United Kingdom resident or a person subject to UK service jurisdiction.

Whilst genocide was of course an offence under statute (2) before the 2000 Act, it is to be noted that the other two offences, now dealt with by this Act, are crimes under customary international criminal law, as settled by the Charter and in the Judgement of the International Military Tribunal at Nuremberg. Equally, however, before the Act of 2000 both of these crimes were also offences, if committed in the United Kingdom, but under the common law. This understanding is confirmed, were confirmation necessary, by reference to the “Explanatory Notes” to the Act of 2000 helpfully “prepared by the Foreign & Commonwealth Office in order to assist the reader of the Act”, paragraph91 of which, when referring to s.51 of the Act, says :

“ Subsection (1) establishes domestic offences of genocide, war crimes and crimes against humanity. Almost all of the acts falling within these definitions would already have been crimes if committed in the UK, although attracting different penalties from those provided for in this Act, but would generally not have been crimes if committed by UK nationals or UK residents overseas.”

1 see for example The Parlement Belge (1878-79) 4 PD 129 @ pp.154-55 per Sir Robert Phillimore ;and more recently Maclaine Watson v. the Department of Trade [1988] 3 All ER 257 (CA)see esp. @ p.349a-e per Ralph Gibson LJ ; and on the appeal see now J.H. Rayner Ltd. v. the Department of Trade [1989] 3 W.L.R.969 (HL-E.) @ p.1002d per Lord Oliver of Aylmerton.

2 An offence under the UN Convention on the Prevention & Punishment of the Crime of Genocide, 1948, incorporated by the Genocide Act, 1969 (now since repealed and substituted by the International Criminal Court Act, 2000).

3 An offence under the International Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, incorporated by s.134 of the Criminal Justice Act, 1988.

4 A 'grave breach' of a Convention protection is an offence under the relevant Article in each of the four Geneva Conventions of 1949 respectively (on the lawful conduct of war or international armed conflict), which has been incorporated by virtue of the provisions of the Geneva Conventions Act, 1957 (as recently amended 1995).

5 As to the need for a statute to achieve this, see now in detail the arguments cited in the next contention (No.3)

6 See for instance the provisions of the War Crimes Act, 1991, which enables the prosecution of persons, who are now British citizens or residents, for the commission of certain war crimes committed in Germany, or in German occupied Europe, during the period of the Second World War, even though they were not British subjects at the time.

Back to top