Prosecuting Tony Blair and others

THE SPECIAL CONTENTIONS

Contention 1: Modern case law developments on adoption / incorporation

The 20th Century English 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 authorities, in order to promote adoption by the common law, subject always to necessary and requisite conditions and limitations respecting the dominance of pre-existing common law principles and the supremacy of statute law.

Contention 2: The need to incorporate conventional law by statute is irrelevant to customary law

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

Contention 3: Statutory authority is required to effect an “extra-territorial” jurisdiction

Statutory authority is required to effect an “extra-territorial jurisdiction” in the courts of this country, even where a “universal jurisdiction” already exists under well established customary international criminal law.

Contention 4: The opinions in ex p. Pinochet (No.3) explained

The above two contentions fully explain, and are entirely consistent with, the various opinions of the majority of their Lordships, in the panel of seven, which heard and decided ex parte Pinochet (No.3)1 as recently as 1999.

Contention 5: The adoption of international law and the common law rule on ‘stare decisis’.

International customary law adopted into the municipal common law can be an exception to the common law rule on stare decisis, entirely consistent with other existing exceptions and reservations to the application of that rule.

Contention 6: The Judgement of Merkel J. in Nulyarimma v. Thompson

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 6-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].

Contention 7: The obiter views of the majority in Nulyarimma are either mistaken or distinguishable

Respectfully, the obiter views of the majority in Nulyarimma v. Thompson (Wilcox & Whitlam JJ.) as to whether genocide, under international customary law, is an offence under the Australian common law, is either fully distinguishable or else plainly misjudged.

Contention 8: The adoption of an international criminal law offence is no breach of the common law prohibition on judge made crimes.

The finding by a municipal criminal court that a universal norm or “jus cogens” principle establishing an offence under customary international criminal law has been adopted by the domestic common law, without reference to any statutory enactment ; does not offend against the modern rejection of “judicial legislation”, based upon its repugnance to the constitutional separation of powers. Since such a finding is in no way demonstrative of, or implicit upon, any “law making” exercise by the judges who make the said finding.

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