Prosecuting Tony Blair and others

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Contention 6:

The doctrine of Adoption (aka Incorporation) may be fully reconciled with the alternate doctrine of Transformation (aka Incorporation), thereby also resolving the two distinct lines of historic authority, in general accordance with the 5-point rule on “common law adoption” as set out by Merkel J. in Nulyarimma v.Thompson (1999) 165 ALR 621 @ pp.653-5 [para 132].

It is respectfully submitted that the judgement of Merkel J., given in the Federal Court of Australia, on appeal from the Supreme Court of the Australian Capital Territory (Crispin J.) in the case of Nulyarimma v. Thompson (1999 - as above) is now the leading common law jurisdiction case authority, on the specific issue of the (non-statutory) “common law adoption”, from customary international (criminal) law, into the common law (1). Merkel J., in a judgement stretching to 176 paragraphs, citing more than 36 case authorities and quoting from more than 32 others on the present point alone, further supported by the citation of 19 texts from authoritative authors and quoting from 9 others, although dissenting from the contrary findings of his brethren Wilcox & Whitlam JJ, arrived at the following conclusion (@ paras. 157-161) :

“ 157. The above analysis, commencing with jurisdiction in respect of piracy vesting in the Admiralty Court without legislation prior to 1536 and concluding with Lord Millett's observations in Pinochet [No.3 (1999)], does not support the view that customary international law, whether civil or in respect of universal crimes, can only be incorporated into municipal law in common law states, like Australia, by legislation. A different situation arises in respect of international criminal law in respect of non-universal international crimes where extra-territoriality and the status of jus cogens, is absent. ...

160.  In my view there is no binding authority or persuasive jurisprudential support for the Commonwealth's submission that adoption of customary international civil law or criminal law in relation to universal crimes, as such, into Australian municipal law requires legislation to that effect. As explained earlier, as the issue was not argued in Pinochet or Polyukhovich I do not accept that either decision is determinative in favour of accepting the Respondents' contentions.

161 Accordingly, for the foregoing reasons, subject to one matter, I do not accept that different policy reasons or principles ought to apply to the adoption of customary international criminal law in relation to universal crimes into municipal law. ....”

In arriving at this conclusion, Merkel J. sought to review the historical case law on the issue throughout the principal common law jurisdictions in the World since at least the beginning of the 18th Century. In so doing he naturally identified the development of the two so-called competing schools of thought on the transposition of customary international law into the municipal law, namely ‘adoption/incorporation’ school versus the ‘incorporation/transformation’ approach, as was specifically referred to in Trendtex Trading Corporation ltd. v. the Central Bank of Nigeria [1977] QB 529 by Lord Denning MR. & Shaw LJ.

In his extensive review of the relevant authorities, he identifies as supporting the doctrine of adoption (incorporation) three leading English case authorities from which he quotes (2)  and a further three which he cites in argument (3), and a further three authoritative texts from which he quotes (4). In support of the ‘alternate’ doctrine of transformation (incorporation) he quotes from a further three English cases (5), two Canadian (6), two New Zealand (7) and two Australian (8) amongst others, and from several authoritative texts too numerous to mention (9).

At para. 84 Merkel J. considers the differences which in his view distinguish in practice between the two approaches and he actually identifies three schools or modalities for the transposition of customary international law into municipal common law as follows :

“ The incorporation [adoption] approach treats customary international law, upon its proof as such and without more, as part of the common law of England. The transformation theory requires a further step; a rule of international law only becomes a part of English law when it is accepted and adopted by judicial decision as such ("common law adoption") or by legislation ("legislative adoption"). The point of practical distinction between the incorporation and common law adoption approaches is that under the latter approach the rule of international law is adopted upon a court determining that the rule is not inconsistent with existing legislation, the common law, or public policy and that it is therefore appropriate that it should form part of the common law of England. An additional question arises to whether international criminal law can only become part of municipal law by legislative adoption.”

In justifying what is in truth is a third, or middle ground approach, which he later also relates to the term a “source” law approach (10) what Merkel J. fails to point out expressly is that, in practice, if properly limited by the conditions, always explicit or implicit in the above authorities, then the middle ground or “common law adoption” approach, as he names it, is basically consistent with both schools of thought. Although, in fairness, he does concede (@ para 109) that

“In my view, the conflict between the two so-called schools of thought may, as was said by Stephenson LJ [in Trendtex Trading], be more apparent than real”.

That is to say, it never could be fairly or properly inferred from any of the above authorities favouring the adoption (incorporation) approach that customary international law could be ‘adopted’ into the municipal common law, without regard to, or in complete defiance of, any pre-existing common law rule or authority with which it would be inconsistent or indeed in conflict. Whilst, the above cited authorities on the supposedly ‘stricter’ transformation (incorporation) approach were never limited to saying that such ‘transformation’ could only ever be achieved by way of statutory legislation, but rather also expressly permitted the possibility of transformation by way of ‘judicial decision’ (see e.g. R v. Keyn (1876) per Cockburn C.J.)

Consequently, once you further accept that only a court of competent jurisdiction, in the course of deciding an issue properly before it, has the requisite authority to determine that the adoption of a specific norm or rule of international customary law is not in conflict or inconsistent with any pre-existing element of the common law, or for that matter any provision of the statute law ; and that such a determination is ipso facto a ‘judicial decision’ on the acceptability of the adoption / incorporation of the international customary rule concerned, then the proclaimed difference between the two so-called schools of thought, in reality, falls entirely away.

In the final analysis it is respectfully submitted that a reconciliation between the two so-called competing schools of thought can be satisfactorily and entirely achieved by adopting a simple common law rule on a “conflict of laws” situation ; namely that where, it is found by a municipal court that, the attempt to adopt a well established and fundamental norm or rule of customary international law (jus cogens), hopefully in the rare case, would never the less prove to be inconsistent, and in conflict, with a pre-existing rule of the internal common law or equally a provision of domestic statute law, then the adoption of such a norm is thereby prohibited ; requiring its incorporation by express statutory legislation instead, before attaining internal municipal effect.

Such an approach, it is submitted, is however entirely consistent with Merkel’s J. 6-point rule on “common law adoption” set out @ pp. 653-655 [para. 132] :

“ 132. The more difficult task is to define with some precision what is meant by the “source” view or the common law adoption approach. In my view, the approach can be formulated as follows:

1. A recognised prerequisite of the adoption in municipal law of customary international law is that the doctrine of public international law has attained the position of general acceptance by or assent of the community of nations “as a rule of international conduct, evidenced by international treaties and conventions, authoritative textbooks, practice and judicial decisions.”: see Compania Naviera Vascongado v SS Cristina [1938] AC 485 at 497 per Lord Macmillan. Once a rule has been established as having the general acceptance of nation States in the manner stated by Lord Macmillan it will have satisfied the “assent” or “acceptance” of nations criteria of Cockburn CJ in Keyn and Lord Atkin in Chung Chi Cheung and will be given “the force of law within the realm”: see Lord Macmillan at 497.

2. The rule must not only be established to be one which has general acceptance but the court must also consider whether the rule is to be treated as having been adopted or “received into, and so become a source of English law”: see Holdsworth at 268 and Chow Hung Ching at 477 per Dixon J.

3. A rule will be adopted or received into, and so a source of, domestic law if it is “not inconsistent with rules enacted by statutes or finally declared by [the courts]”: Chung Chi Cheung (at 168) per Lord Atkin. Plainly, international law cannot be received if it is inconsistent with a rule enacted by statute. However, the position is less clear with a rule that might be inconsistent with the common law. To the extent that international law is to be received into domestic law, it will have necessarily altered or modified the common law and, to that extent, might be said to be inconsistent with it. Thus, in my view a strict test of inconsistency could not have been intended. I would accept Sawer’s observation that inconsistency with the common law (that is, the rules declared by the courts) means “inconsistency with the general policies of our law, or lack of logical congruence with its principles”: see Sawer “Australian Constitutional Law in Relation to International Relations and International Law and Australian Law” in O’Connell International Law in Australia 1965 at 50 and Mason at 215.

4. A rule of customary international law is to be adopted and received unless it is determined to be inconsistent with, and therefore “conflicts” with, domestic law in the sense explained above. In such circumstances no effect can be given to it without legislation to change the law by the enactment of the rule of customary international law as law: see Keyn at 202-203 per Cockburn CJ and Holdsworth at 270-271. This approach subordinates rules of customary international law to domestic law thereby avoiding a fundamental difficulty of the incorporation approach which, by requiring the common law to invariably change to accord with rules of international law, subordinates the common law to customary international law. In my view, to do so amounts to re-instating Blackstone’s view which I regard Lord Atkin and Dixon J as having rejected.

I do not regard Trendtex Trading as offering a sufficient foundation for the re-instatement of Blackstone’s incorporation view. I agree with Mason’s J. observation (at 214-215) that in Trendtex Trading there would have been no great difficulty in adjusting the doctrine of precedent to meet the special case of a change in a rule of international law being received into domestic law. Thus, whilst the result in Trendtex Trading is not in dispute, it could equally have been arrived at by the “source” view that is, the adoption of the current rules of customary international law to the extent their operation is not inconsistent with municipal law. Indeed that was, in part, the approach taken by Shaw LJ in Trendtex Trading.

5. The rules of customary international law, once adopted or received into domestic law have the “force of law” in the sense of being treated as having modified or altered the common law. The decision of the court to adopt and receive a rule of customary international law is declaratory as to what the common law is. Upon a court so declaring the common law to be different from what it was earlier perceived to be effect will be given to the declaration “as truly representing the common law”: see Western Australia v The Commonwealth (1995) 183 CLR 373 at 485. A rule, once so declared, is applicable to both civil and criminal proceedings in a domestic court: see Keyn, Chung Chi Cheung and Chow Hung Ching.

6. As Trendtex Trading demonstrates international law evolves and changes from time to time. However, unlike the common law, the evolution of, and change, in international law is established by evidence and other appropriate material. Thus, it may be that in certain instances the adoption will only be as from the date the particular rule of customary law has been established. “

(my emphases by way of emboldening added)

It should be noted that Merkel’s J. 6-point rule is not what you might call concise. Paragraph 4 is really nothing more than a restatement of different aspects of the rule in para.3, and the second paragraph of point 4 and para 6 are purely expositional and do not add anything further to the rule as such. It remains only to apply this accumulated learning to the circumstance of the present claim.

Firstly, given the extensive authorities and materials already submitted in the ‘Statement of Claim’, it is respectfully submitted that, there can be no question whatever, but that the customary international criminal law offence (the “Nuremberg” crime) of committing a “Crime Against Peace”, namely the deliberate waging (etc.) of a “war of aggression” (contrary to the fundamental norms on the peaceful resolution of international disputes etc.) is an offence to the jus cogens (or peremptory fundamental norms of customary international law) of an erga omnes character.

Secondly, that the Court already has the list of diplomatic and international acts and deeds, of the Crown, and testifying fully to the assent by the UK Government during the past three-quarters of a century on the international plane to the existence and details of that peremptory norm (see para. 132 of the Statement).

Thirdly, that there is no provision in statute (whether entitled “Assistance for International American Aggression [Enablement] Act" or otherwise, with which the internal application of that international norm would be in conflict.

Finally, that there is no pre-existing rule of the common law (11), previous decision of final authority, or public policy position of which the Court could take judicial notice, which would arguably be in any manner in conflict with the adoption of that part of customary international criminal law, which constitutes the corpus delicti sed crimen contra pacem, sub jus gentium, contra jus cogens, erga omnes - the essential legal definition of a crime against peace under international law and against its fundamental and peremptory normative rules binding upon all states without exception.

So that, it is respectfully submitted, the Court is thus now free to declare to the Country, and to the World, that Nuremberg was not just a case of jus victori, nor have we forgotten in this country the legal standards of international behaviour on non-aggression to which we held those vanquished Nazi political leaders liable, and thereby affirmed them as the foremost rules of customary international criminal law.

Rather that, here in this Country, where government is supposedly conducted under a system of constitutional and parliamentary monarchy, safeguarded by a fiercely independent judiciary, jealously protective of the “rule of law” as a fundamental exigency of that system, our most senior political leaders and government officials, be they never so high, yet the common law of England is above them, to which they can and will be made to answer, whenever sufficient and probative evidence of a crime can be laid against them. That after all is what we told both ourselves and the World we fought the war in order to preserve, - the Great War that is and then the Second World War after that. Obviously, not the last Gulf War, which was clearly something very different entirely.

Footnotes.

1 “ Despite these minor flaws, Merkel J. has delivered the best modern Australian judgment on the reception of custom.” D.Guilfoyle “Nulyarimma v. Thompson : Is Genocide a Crime at Common Law in Australia ?” [2001] Fed L Rev 1 @ 5.4

2 Buvot v. Barbuit (1736) Cas.temp.Talbot 281 @ 283, 25 ER 777 per Lord Talbot L.-C.; Triquet v. Bath (1764) 3 Burr. 1478 ; 97 ER 936 per Lord Mansfield , as well as Trendtex Trading (1977) itself per Lord Denning MR. @ pp553-4

3 Dolder v. Lord Huntingfield (1805) 11 Ves.jun 283 @ 294 ; 32 ER 109 per Lord Eldon L.-C; Novello v. Toogood (1823) 1 B&C 554 @ p.562 ; 107 ER 204 per Abbott CJ.; De Wurtz v. Hendricks (1824) 2 Bing. 314 @ 315-6 ; 130 ER 326 per Lord Best CJ.

4 Sir William Blackstone “Commentaries on the Laws of England” (1769) Book IV pp.66-67; Lord Lyndhurst in the House of Lords (1853) see Sir George Cornewall Lewis “Lewis on Foreign Jurisidiction” (1859) pp.66-67; and Sir William Holdsworth “The Relation of English Law to International Law” Goodhart et al. ‘Essays on Law and History’ (1946) @ 261.

5 Reg. v. Keyn (1876) 2 Ex.D. 63 @ pp.202-203 per Cockburn CJ.; West Rand Central Gold Mining Co. Ltd. v. Rex [1905] 2 KB 391 @ p.407 per Lord Alverstone CJ.; Chung Chi Cheung v. the King [1939] AC (PC) 160 @ pp. 167-8 per Lord Atkin ;

6 Reference Re Power of Municipalities to Levy Rates on Foreign Legations and High Commissioners’ Residences [1943] SCR 208 (“the Foreign Legations Case”) @ 214, 230-231 per Duff CJ & @ 232-233 per Rinfret J; Reference Re Exemptions of US Forces from Canadian Criminal Law [1943] 4 DLR 11 @ 41 per Taschereau J.

7 Marine Steel Ltd v Government of the Marshall Islands [1981] 2 NZLR 1; Governor of Pitcairn and Associated Islands v Sutton [1995] 1 NZLR 426 @ 436 per Richardson J

8 Polites v Commonwealth (1945) 70 CLR 60 @ pp.80-81 per Williams J. ; Chow Hung Ching v The King (1949) 77 CLR 449 @ p.462 per Latham CJ, & @ 470-1 per Starke J., & @ p.477 per Dixon J.

9 Cohen, Bayefsky “The Canadian Charter of Rights and Freedoms and Public International Law” (1983) 61 Canadian Bar Review 265 at 277 ; Butler & Butler, “The Judicial Use of International Human Rights Law in New Zealand” (1999) 29 Victoria University of Wellington Law Review 173 at 177 ; FA Mann “Foreign Affairs in English Courts” (1986) @ 124 ; Sir Anthony Mason in “International Law as a Source of Domestic Law” Opeskin et al “International Law and Australian Federalism” (1997) 210 @ 215 ; Brownlie “Principles of International Public International Law” (4th ed) @ 45-46.

10 Re Dixon J. in Chow Hung Ching v. the King (1949) as above and also Sir Anthony Mason in “International Law as a Source of Domestic Law” in Opeskin et al “International Law and Australian Federalism” (1997) 210 @ 215 et seq.),

11 As to the opposing contentions regarding (i) criminal immunity for certain prerogative acts of the Crown, (ii) non-justiciabilty of Crown conduct in relation to defence of the Realm and national security, (iii) extension of the doctrine of ‘Act of State’ to the criminal jurisdiction and (iv) analogous application of crown immunity from civil suit at common law, see now Parts 8.1,8.2,8.3 & 8.4 of the Statement of Claim respectively.

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