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Bro Emlyn for Peace and Justice / Bro Emlyn dros Gyfiawnder a Heddwch

Digest of Arguments on the Principal Issues

IN THE SUPREME COURT OF JUDICATURE Royal Courts of Justice

THE HIGH COURT OF JUSTICE (QUEEN’S BENCH DIVISION) Strand,

THE ADMINISTRATIVE COURT London, WC2A 2LL

IN THE MATTER OF

AN APPLICATION FOR PERMISSION TO MOVE

FOR A JUDICIAL REVIEW

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Regina

(on the application of)

Robert Lewis Manson Claimant

versus

The Chief Magistrate for the Bow Street Court 1st. Defendant

and

Carmarthen Magistrates’ Court 2nd. Defendant

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DRAFT

Prepared by Claimant in person

Brynymor, Parrog

Newport, Pembs.

MAI XXIII

5.0 THE FIRST PRINCIPAL ISSUE

ESTABLISHING THE EXISTENCE OF THE CRIME ALLEGED

Is there a criminal offence, disclosed under the customary international (humanitarian)

laws of armed conflict, termed the commission of ‘a crime against peace’?

5.1 DEFINITION OF A ‘CRIME AGAINST PEACE’

5.1.1 History of the formulation of the Nuremberg Principles

See Background Document RLM ***

5.1.2 Principle VI (a) of the ‘Nuremberg Principles’

5.1.3 Judgement of the Tribunal on ‘Crimes Against Peace’

To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.“ (my emphasis added).

The Trial of German Major War Criminals Sitting at Nuremberg, Germany

(Blue Transcripts) - The Judgement (pp12-13) HMSO 1946.

5.1.4 The Special Status of ‘Nuremberg’ Principles

Accordingly, this, it is submitted, makes the ‘Nuremberg Principles’ an aspect of customary international law whose established and settled clarity and certainty is almost unique, and therefore more than any other aspect of that law beyond per adventure of misrepresentation.

5.1.5 A class of offence rather than a single crime?

It is submitted then that the decision of the Tribunal rests upon a conclusion that in order to establish that a ‘crime against peace’ has been committed, it is sufficient to show that an act has been perpetrated, involving the planning, preparation, initiation or waging of a war, which constitutes (or would so constitute were it to be carried out) an act of international aggression, as considered at customary international law; but also that, establishing that such an act is (or would be) in breach of certain relevant obligations under international treaties, agreements or assurances, declaratory of that customary law, is also sufficient to establish the offence.

5.2 WAR & UNLAWFUL FORCE.

5.2.1 What is ‘war’?

That is to say evidence of ‘the actual commencement of hostilities' has always been accepted, subject to the above mentioned exceptions, as sufficient to establish a state of war existing between states, irrespective of whether or not such a state of war was formally ‘declared’ by either or both parties prior thereto. see Halsbury’s Laws of England Vol.49(1) pp.428 @ para 506 & p.430 @ para.508

In particular, the Court has even previously stated, its willingness to take ‘judicial notice’ of the existence of a state of war between this country and another, where ‘hostilities have actually commenced’, without requiring any formal proof of the fact to be admitted.

see In re A Petition of Right [1915] 3 KB (CA) 649@ p.658 per Lord Cozens-Hardy MR and

R. v. De Berenger (1814) 3 M&S p.67, and Alcinous v. Nigreu (1854) 4 E&B p.217.

5.2.2 ‘War’ vis-a-vis the ‘the use of force’ and ‘Armed Conflict’

Therefore, it is submitted that under contemporary customary humanitarian law a ‘crime against peace’ is committed, wherever someone takes an active part in the planning, preparation, initiation or waging of an act of international aggression, whether or not such an act would be independently recognised as comprising in an “act of war” or “war of aggression” stricto sensu.

5.3 DEFINITION OF ‘AGGRESSION’

5.3.1 Supreme Court Justice Robert H. Jackson (Chief US Prosecutor) at Nuremberg

“Our position is that whatever grievances a nation may have, however objectionable it finds the status quo, aggressive warfare is not a legal means for settling those grievances or for altering those conditions. It may be that the Germany of the 1920's and 1930's faced desperate problems, problems that would have warranted the boldest measures short of war. All other methods - persuasion, propaganda, economic competition, diplomacy-were open to an aggrieved country, but aggressive warfare was outlawed. These defendants did make aggressive war, a war in violation of treaties. They did attack and invade their neighbours in order to effectuate a foreign policy which they knew could not be accomplished by measures short of war. And that is as far as we accuse or propose to inquire.“

The Trial of German Major War Criminals Sitting at Nuremberg, Germany

(Blue Transcripts) - Vol.1 Session 2 (21 Nov 1945) pp81-82 HMSO 1946

5.3.2 General Assembly Resolution 3314 (XXII) (1974)

“Article 3

Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of article 2, qualify as an act of aggression:

(a) The invasion or attack by the armed forces of a State on the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof,
(b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;

....

(d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; “

It is naturally submitted by the present Claimant that the various acts complained of before the Defendants, in the courts below, as set out in the ‘Statements of Particulars’ accompanying the various informations laid before them, comprised in an act (or acts) of ‘international aggression’, as defined in relation to each and every one of the three subparagraphs to Article 3, as set out above.

5.3.3 The “Travaux Prepatories” of the Assembly of States Parties to the ICC.

On 9 September 2002 the Assembly of States Parties to the ICC Statute adopted a resolution proposed by the Preparatory Commission for the International Criminal Court. Paragraph 2 of the discussion paper which was attached to the Preparatory Commission’s Draft Resolution suggested that for the purposes of future amendment of Rome Statute “act of aggression” be defined as an act referred to in resolution 3314 (XXIX) of 14 December 1974 (as above).

5.4 THE BREACH OF INTERNATIONAL AGREEMENTS, etc.

5.4.1 Article 2 of the Charter of the United Nations 1945

3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.“ (my emphasis).

Instead, the rule on the prohibition on the threat or use of force in the conduct of lawful international relations, as therein set out in 1945, were it in any doubt at the time, which I dispute, has in any event since received the necessary further universal approbation and confirmation amongst the opinio juris of the community of nations, to have become declaratory of an established principle of underlying customary law; and it is upon the basis of that rule of customary law that the present Claimant relies, of which those Charter provisions are merely declaratory, rather than invoking them either directly or indirectly without the benefit of any statutory incorporation.

5.4.2 General Assembly Resolution 2625 (XXV)(1970)

Declaration on Principles of International Law Concerning Friendly Relations

and Co-operation among States in accordance with the Charter of the United Nations.

“ 1. Every State shall refrain in its international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations. Such a threat or use of force constitutes a violation of international law and the Charter of the United Nations and shall never be employed as a means of settling international issues. A war of aggression constitutes a crime against the peace for which there is responsibility under international law.

...

2. Every State shall settle its international disputes with other States by peaceful means in such a manner that international peace and security and justice are not endangered. States shall accordingly seek early and just settlement of their international disputes by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements or other peaceful means of their choice. In seeking such a settlement the parties shall agree upon such peaceful means as may be appropriate to the circumstances and nature of the dispute. ... “

5.4.3 Judgement of the World Court on the value of Resolution 2625.

“Para 188. ... The Court has however to be satisfied that there exists in customary international law an opinio juris as to the binding character of such abstention (on the use of force). This opinio juris may, though with all due caution, be deduced from, inter alia, the attitude of the Parties and the attitude of States towards certain General Assembly resolutions, and particularly resolution 2625 (XXV) entitled “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations”. The effect of consent to the text of such resolutions cannot be understood as merely that of a “reiteration or elucidation” of the treaty commitment undertaken in the Charter. On the contrary, it may be understood as an acceptance of the validity of the rule or set of rules declared by the resolution by themselves. The principle of the non use of force, for example, may thus be regarded as a principle of customary international law, not as such conditioned by provisions relating to collective security, or to the facilities or armed contingents to be provided under Article 43 of the Charter. .... “

5.4.4The Kellogg-Briand Pact 1928 (The Treaty of Paris)

In June, 1927, Aristide Briand, foreign minister of France, proposed to the U.S. government a treaty outlawing war between the two countries (something especially worthy of recall given contemporary events and attitudes !). Frank B. Kellogg , the U.S. Secretary of State, returned a proposal for a general pact against war, and after prolonged negotiations the Pact of Paris was signed by 15 nations the following year—Australia, Belgium, Canada, Czechoslovakia, France, Germany, Great Britain, India, the Irish Free State, Italy, Japan, New Zealand, Poland, South Africa, and the United States.

“PREAMBLE: Deeply sensible of their solemn duty to promote the welfare of mankind;

Persuaded that the time has, come when a frank renunciation of war as an instrument of national policy should be made to the end that the peaceful and friendly relations now existing between their peoples may be perpetuated;

Hopeful that, encouraged by their example, all the other nations of the world will join in this humane endeavour and by adhering to the present Treaty as soon as it comes into force bring their peoples within the scope of its beneficent provisions, thus uniting the civilised nations of the world in a common renunciation of war as an instrument of their national policy;

ARTICLE I: The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another. ...“

5.5 CONCLUSIONS

Having thus set out much of the jurisprudence, developed over the course of the past three quarters of a century, on the emergence of a fully established and recognised rule of customary international law, acclaimed by the nations comprising the community of the civilised world, prohibiting the resort to the threat or use of force in the conduct of relations between states, and in the settlement of international disputes, and further criminalising a breach thereof as an act of aggression, it is respectfully submitted that the first principal question must now been answered in the affirmative.

Finally, and given all that has now been set out above on the existence, character, nature and qualities of an act of aggression, being an established crime in international customary law, and whatever the difficulties may be regarding the application of the law of that offence, to which subject I shall now turn shortly, it is respectfully submitted, with all due deference to the First Defendant, that the statement he makes in his judgement, as attached to the letter of 1st May last (as to which see 2.2 above), and which, inter alia, I seek herein to challenge, namely “I am not satisfied that there is at present an international crime of waging a war of aggression”, tells the reader a great deal more about the knowledge base from which that Defendant was prepared to act as a judicial ‘decision maker’ (whilst choosing to deny himself the benefit of hearing argument), than it could ever be claimed to offer any rational basis for a minimally competent appreciation or understanding of the customary international law of armed conflict.

6.0 THE SECOND PRINCIPAL ISSUE

ESTABLISHING THE INDIVIDUAL PERSONAL LIABILITY

Does the offence of committing ‘a crime against peace’ under international law, carry with it a criminal liability for individual natural persons, who can be shown to have been sufficiently involved in the commission of the offence?

6.1 Sir Hartley SHAWCROSS Q.C. M.P.

The Attorney-General & Chief UK Prosecutor at Nuremberg.

The State is not an abstract entity. Its rights and duties are the rights and duties of men. Its actions are the actions of men. It is a salutary principle, a principle of law, that politicians who embark upon a particular policy - as here - of aggressive war should not be able to seek immunity behind the intangible personality of the State. It is a salutary legal rule that persons who, in violation of the law, plunge their own and other countries into an aggressive war, should do so with a halter around their necks.

To say that those who aid and abet, who counsel and procure a crime are themselves criminals, is a commonplace in our own municipal law. Nor is the principle of individual international responsibility for offences against the law of nations altogether new. It has been applied not only to pirates. The entire law relating to war crimes, as distinct from the crime of war, is based upon the principle of individual responsibility. The future of International Law, and indeed, of the world itself, depends on its application in a much wider sphere, in particular in that of safeguarding the peace of the world. There must be acknowledged not only, as in the Charter of the United Nations, fundamental human rights, but also, as in the Charter of this Tribunal, fundamental human duties, and of these none is more vital, none is more fundamental, than the duty not to vex the peace of nations in violation of the clearest legal prohibitions and undertakings. If this be an innovation, it is an innovation which we are prepared to defend and to justify, but it is not an innovation which creates a new crime. International Law had already, before the Charter was adopted, constituted aggressive war - a criminal act.

...

But then it is argued, even if the State is liable, it is only the State and not the individual who can be made responsible under International Law. That argument is put in several ways. States only, it is said, and not individuals, are the subject of International Law. But there is no such principle of International Law. One need only mention the case of Piracy or Breach of Blockade, or the case of Spies, to see that there are numerous examples of duties being imposed by International Law directly upon individuals. War crimes have always been recognized as bringing individuals within the scope of International Law. In England and the United States our Courts have invariably acted on the view that the accepted customary rules of the Law of Nations are binding upon the subject and the citizen, and the position is essentially the same in most countries.

...

Shall we depart from that principle merely because we are here concerned with the gravest offences of all - crimes against the peace of nations and crimes against humanity. The law is a living, growing thing. In no other sphere is it more necessary to affirm that the rights and duties of States are the rights and duties of men and that unless they bind individuals they bind no one. It is a startling proposition that those who aid and abet, who counsel and procure the commission of a crime, are themselves immune from responsibility. The international crime does not differ from the municipal offence in this respect.”

The Trial of German Major War Criminals (HMSO)

Vol.2 Session 12 pp.46-57 Twelfth Day: Tuesday, 4th December, 1945

and Vol.19 Session 187 pp. 423-428 6 July 1946.

6.2 “The Nuremberg Principles”

“Principle I

Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.

...

Principle III

The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government Official does not relieve him from responsibility under international law”.

6.3 Judgement of the Tribunal on ‘Individual Responsibility’.

“ It was submitted that international law is concerned with the actions of sovereign States, and provides no punishment for individuals; and further, that where the act in question is an act of State, those who carry it out are not personally responsible, but are protected by the doctrine of the sovereignty of the State. In the opinion of the Tribunal, both these submissions must be rejected.

Many other authorities could be cited, but enough has been said to show that individuals can be punished for violations of international law. Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.

The Trial of German Major War Criminals (HMSO)

Judgment (Lawrence L.J.): 30th September, 1946 - 1st October, 1946 pp. 41-42

6.4. UN INTERNATIONAL LAW COMMISSION REPORT 1996

CHAPTER II - DRAFT CODE OF CRIMES AGAINST THE PEACE AND SECURITY OF MANKIND

PART 1 - GENERAL PROVISIONS

Article 2 - Individual responsibility

1. A crime against the peace and security of mankind entails individual responsibility.

2. An individual shall be responsible for the crime of aggression in accordance with article 16.

....

Commentary

(1) The principle of individual responsibility for crimes under international law was clearly established at Nürnberg. The Nürnberg Charter provided for the trial and punishment of persons who committed crimes against peace, war crimes or crimes against humanity.

The principle of individual responsibility and punishment for crimes under international law recognized at Nürnberg is the cornerstone of international criminal law. This principle is the enduring legacy of the Nürnberg Charter and Judgement which gives meaning to the prohibition of crimes under international law by ensuring that the individuals who commit such crimes incur responsibility and are liable to punishment.

The principle of individual responsibility and punishment for crimes under international law was reaffirmed in the Statutes of the International Criminal Tribunals for the former Yugoslavia (article 7, paragraph 1 and article 23, paragraph 1) and Rwanda (article 6, paragraph 1 and article 22, paragraph 1). This principle was also reaffirmed by the Commission in the Nürnberg Principles (Principle I) and in the 1954 draft Code (article 1). The punishment of individuals for the crimes covered by the present Code is addressed in article 3 and discussed in the commentary thereto.“

(my emphasis).

6.5 Authorities on ‘individual responsibility’ cited in judgement on the ‘Eichmann Appeal’.

It was in the spirit of this approach that the United States Supreme Court ruled in ex parte Quirin (1942, 87 L. ed. 3, 12, 13) that the accused were criminally liable for acts contrary to the laws of war on the ground that these laws were always recognized and applied as part of the law of nations:

"from the very beginning of its history this Court has recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals. By the Articles of War...Congress has...exercised its authority to define and punish offences against the law of nations by sanctioning, within constitutional limitations, the jurisdiction of military commissions to try persons for offences which, according to the rules and precepts of the law of nations, and more particularly the law of war, are cognizable by such tribunals."

The Supreme Court reaffirmed this view in re Yamashita (1945, 96 L. ed. 499, 504).”

Eichmann v. the State of Israel:

Record of Proceedings on Appeal in the Supreme Court of Israel

Appeal Session 7 : Judgement

6.6 CONCLUSIONS

In light of all of the foregoing authority, therefore, it is respectfully submitted that the second principal issue must also now be answered in the affirmative. Naturally, in the historical absence of an international criminal court, exercising a jurisdiction in international criminal law but over individual natural persons, then inevitably such authority as exists on the question of the individual responsibility for crimes under international customary law, other than as arises in connection with the specialist international tribunals established from time to time specifically to try such crimes, such authority is inextricably tied up with the issue of the jurisdiction of municipal courts to try such crimes, which is the subject to which I shall now turn.

However, it is submitted that, bolstered also by reference to the accumulated authorities set out above on the first principal issue, namely as to the existence of a crime against peace ipso facto, there is now established in international customary law such weight of opinio juris and declaratory conventional provision, that the issue of individual personal responsibility for the commission of that crime is today equally beyond any reasonable doubt.

Consequently, I now turn to consider the third and final issue of the jurisdiction of a municipal court, such as are the Defendants to this present claim, to institute process in relation to such an offence as disclosed in the first instance under customary international law.

7.0 THE THIRD PRINCIPAL ISSUE

ESTABLISHING THE ADOPTION OF THE CRIME INTO THE COMMON LAW

Is a ‘crime against peace’ under International Customary Law, together with the individual personal liability therefor, adopted into, and thereby forms a part of, the English common law,

justiciable before the Defendants?

7.1 DOCTRINE OF ADOPTION

7.1.1 INTERACTION OF LAWS.

For present purposes it suffices to state that there are two principal methods or streams for absorbing international law into our domestic law, namely the incorporation of conventional law by statute and the adoption of customary law into the common law. Each is subject to its own regulatory control mechanism which must nonetheless be complementary. However, I merely want here to point out that it is futile and ignorant in the extreme to speculate or propound, as I suspect that many in this country today do, that one stream is much more important or superior to the other. Indeed, that incorporation is being viewed today as an alternative to adoption, which is to be regarded as an “antiquated” concept. The two different methods are separate but complementary, they serve comparable but different and distinct functions. To set them against each other and favour one method over the other as more important is as logical as comparing town against country or youth against experience.

Judges today may not be as familiar or as comfortable with adopted law, as they are with incorporated law, and it is surely true that the judicial determination of the true aspect of such law is always going to be more demanding and potentially more fraught than with the textual certainties of statue ; but without the application and utilisation of adopted law by the courts of this land, this country should surely not be in a place today where it could even claim to be truly a part of the community of civilised nations, which is a claim that is equally surely made.

7.1.2 ADOPTION: The Early Authorities

“ In England the Laws of Nations is adopted in its full extent by the common law, and is held to be a part of the law of the land ..without which it must cease to be a part of the civilised world.”

Sir William BLACKSTONECommentaries on the Laws of England”

(1769) Book IV (Public) Chapter V p.67

Barbuit’s Case (1736) Cas.temp.Talbot 281 @ 283, 25 ER 777 per Lord Talbot L.-C. (footnote)

Triquet v. Bath (1764) 3 Burr. 1478 ; 97 ER 936 per Lord Mansfield

Heathfield v. Chilton (1767) 4 Burr 2015@ 2016 ; 98 ER 50 per Lord Mansfield

Viveash v. Becker (1814) 3 M&S 284@284 ; 105 ER 619 per Lord Ellenborough CJ

Novello v. Toogood (1823) 1 B&C 554@562 ; 107 ER 204 per Abbott CJ.

De Wurtz v. Hendricks (1824) 2 Bing. 314 @ 315-6 ; 130 ER 326 per Lord Best CJ.

The Emperor of Austria v. Day (1861) De G.F.&J. 217@251 ; 45 ER 861 per Turner LJ.

Dolder v. Lord Huntingfield (1805) 11 Ves.jun 283 @ 294 ; 32 ER 109 per Lord Eldon L.-C

Wolff v Oxholm (1817) 6 M&S 92 @100-06 ; 105 ER 1177 per Lord Ellenborough CJ. again

7.1.3 The 20th Century authorities

West Rand Central Gold Mining Co. Ltd. v. Rex [1905] 2 KB 391 @ 406 per Lord Alverstone CJ

Commercial and Estates Co. of Egypt v. The Board of Trade [1925] 2 KB 271@283 per Bankes LJ.

Trendtex Trading ltd. v. The Bank of Nigeria [1977] 1 QB 529 (CA) @578-79 per Shaw LJ.

7.2 PRECEDENT OF ‘PIRACY’.

7.2.1 Introduction

The precedent upon which I specifically place reliance is, of course, piracy. Particularly, what is know as piracy jure gentium, (ie piracy under international law) as opposed to statutory piracy.

7.2.2 Piracy and the Principle of “Universal Jurisdiction”.

“ss. Lotus” PCIJ Series A No.9 (1927) @ p.70 per Mr Moore

In Re Piracy Jure Gentium [1934] AC 586 (PC) @ p.589 per Lord Sankey L.-C.

No, it is rather my purpose in referring to that jurisdiction, in relation to the international law crime of piracy, to show that where as therein the English common law has been capable of adopting not only the substance of an offence so-called hostis humani generis, but moreover of expanding the criminal jurisdiction of the ordinary courts to try and punish persons normally beyond the reach of the law of this land; then, a multi fortiori, there is nothing especially novel or bold or unprecedented in the suggestion, that this law is also clearly capable of exercising its jurisdiction in relation to British subjects who, whilst on British soil, commit the essential elements of such a crime similarly disclosed under customary international law.

7.2.3 Modern provisions on Piracy and Statute Law.

Section 26 (1) of the Merchant Shipping and Maritime Security Act 1997. provides that, “for the avoidance of doubt” , the specific provisions of Convention set out in the Schedule alone “shall be treated as constituting part of the law of nations”, as if there could be much doubt about that. Schedule 5 to the Act of 1997 sets out Article 101 DEFINITION OF PIRACY .

Consequently, what these provisions must read as establishing is simply that, ‘for the avoidance of doubt’, and as respects the prosecution and punishment of the common law offence of piracy jure gentium, by a court in this country, the definition of the crime of piracy, as set out in Articles 101-103 above, is to be regarded as declaratory of the definition of piracy in customary international law, and applied accordingly to the adopted customary law offence, the universal jurisdiction for the punishment of which is also similarly adopted from customary international law.

As of today, were a British subject or national to be charged with piracy on the high seas, it would also have to be with piracy jure gentium at the common law, and having been adopted from the customary law of nations, as with the case of piracy by foreign nationals from foreign ships, there no longer being any provision creating an offence of statutory piracy, applicable to British nationals, remaining on the statute book.

Hence, I am able to say with confidence that the notion of prosecuting a British subject, in a British criminal court, for the commission of a crime, the creation, definition and liability for which is fully adopted from the relevant provisions of well established customary international law, far from being a novel or bold assertion, is in fact a well established principle of the English common law, which has been applied in practice and indeed over a period of centuries, though reaffirmed by informed reference to the provisions of an Act of Parliament passed as recently as 1997.

7.3 The Principle of “Universal Jurisdiction” applied to “War Crimes”.

Finally, in order to establish that the application of the principle of universal jurisdiction is not limited solely to piracy, an important area of investigation in the case of Eichmann v.The State of Israel (on appeal), especially as applied to ‘war crimes’ generally and specifically the commission of ‘crimes against humanity.’

7.4 LIMITATIONS ON THE APPLICATION OF THE DOCTRINE

7.4.1 Statute and ‘stare decisis’.

Mortensen v. Peters (1960) 14 SLT 227 @ 230 per Lord Dunedin.

Chung Chi Cheung v. The King [1939] AC 160 (PC) @ 169

Trendtex Trading v. The Bank of Nigeria (1977) (see above s.7.1.3)

7.4.2 Evidence of the view of the Executive, as to certain international ‘facts’, is conclusive.

See for example: Taylor v. Barclay (1828) 7. II Sim.213 @220 per Lord Shadwell L.-C.

Duff Development Co., Ltd. v. Kelantan [1924] AC 797 (headnote).

The Zamora [1916] 2 AC 77(PC) @ p.106

It is not alleged by me that in order to prove the attack on the State of Iraq unlawful, at any future trial of the case, I must and can establish that it was politically, diplomatically and/or militarily or otherwise unnecessary, in the interests of national security or for the defence of the realm or otherwise. Even if I should be of such a political, moral etc. belief, such a position surely forms no part of the case for prosecuting. Equally, and by the same logic, if it be that such an assertion by the accused persons were indeed to be made, in order to explain their actions, then so be it. That amounts to nothing less than a complete confession of their crime; for such political, diplomatic or military imperatives, whether valid or not, are no defence, excuse or justification for the commission of the crime alleged. Once again I cannot resist citing the Court of the King’s Bench in the notorious matter of Entick -v- Carrington (see elsewhere) “ It is said that it is better for the Government and the public to seize the libel before it is published ; if the Legislature be of that opinion they will make it lawful”.

7.4.3 The rule of international customary law must be well settled

and arguably there should also be evidence of assent by the Crown

“ss. Lotus” PCIJ Series A No.9 (1927) @ p.75 per Mr Moore

“ss. Lotus” PCIJ Series A No.9 (1927) @ p.54 per Lord Finlay

Principles of Public International Law”, (4th.edn.) 1990 @ pp.45-46

West Rand Central Gold Mining Co. Ltd. v. Rex [1905] 2 KB 391 @ 407 per Lord Alverstone CJ as cited with approval in Molvan v. The Attorney-General for Palestine [1948] AC 351 (PC) @ p.369,

This Claimant is now happy to offer “in evidence”, as it were, the following history of the active involvement and participation of the government of this country in the evolution and development of the, by now well established and settled definition of, the offence of the commission of a “crime against peace”, under customary criminal international law, vis.:

(1) The Kellogg-Briand Pact (see above @ s. 5.4.4)

(2) The Charter of the United Nations, 1945, (see above @ s.5.4.1)

(3) The 4-Powers (London) Agreement (1945) (see Background Document RLM ***).

(4) The prosecution of Major German War Criminals by the Attorney-General and others

(see above esp. @ s.6.1)

(5) The judgement of the Tribunal and the subsequent lawful execution of ten of the

defendants convicted by that Tribunal.

(6) The vote of the UK Government in the General Assembly in 1946 to affirm the principles of international law in the Charter and Judgement of Nuremberg Tribunal (Document RLM ***)

(7) The vote of the UK Government in the General Assembly in 1970 in favour of Resolution 2625 (XIX) on the Declaration of Principles of International Law concerning Friendly Relations and Co-operation among States (see above @ s.5.4.2)

(8) The vote of the UK Government in the General Assembly in 1974 in favour of Resolution 3314 (XXII) on the Definition of the Crime of Aggression (see above @ 5.3.2)

(9) The active participation of the Government in the International Law Commission’s formulation and adoption of a Draft Code of Crimes Against the Security and Peace of Mankind 1996 (see Background Document RLM ***).

It is not suggested that this list is in any way exhaustive.

7.5 JUDGE WORKMAN’S PERSPECTIVE

7.5.1 Judicial Legislation?

The offence, which I accused the interested parties of having committed, was “created” by no judge, in this country or elsewhere, but rather by the exercise of the well established mechanisms, means and institutions for the development and distillation of customary international law, over the course of the past three-quarters of a century, as to which I have set out in some detail above. That law having been thus developed, it is then susceptible of adoption into the English common law, subject to the many limitations and caveats I have stipulated to. Accordingly, the invocation of the well known principle on the modern prohibition on the creation of new “judge-made” common law offences, is a complete misapprehension, which is utterly without any actual merit, in the circumstances of this case.

It is undoubtedly true to observe that this would be the first occasion, to-date, upon which this offence would ever be used by a court in this country; but given that it is only ever capable of being committed by the very highest officials and ministers of the government of a State, capable of commanding the military forces of that power, to wage war unlawfully and indeed criminally against the territorial integrity and political independence of other sovereign nations, and against the law of the community of nations, that it has no precedent in the history of this country is, I should observe, both singularly unsurprising and possibly somewhat comforting.

7.5.2 Adoption versus Incorporation and the Rome Statute Process.

But there is absolutely nothing in all of that which touches upon, let alone diminishes one iota from, the proposition that whilst a ‘crime against peace’ remains an international criminal offence disclosed exclusively under customary international law, it is fully capable and susceptible of adoption into the English Common Law, and thereby enforceable by criminal courts in this country as against British subjects, who commit that crime whilst on British soil, and without any danger therefore of diplomatic insult or injury to other nations, all be it that they are inevitably also bound to be important people in the government of this nation state.

Accordingly, by employing the well established principles of the common law of England and thereby exercising a criminal jurisdiction to prosecute, try and punish British subjects who commit such like heinous crimes, but disclosed yet under customary law alone ; far from pre-empting or prejudicing the Rome Statute process, the common law courts of this former great nation state would be thus demonstrating to the global community of nations, that here at least, and in full conformity with the principles of that process, the recognition of the gravest of all crimes against the law of nations, a crime against world peace, has not faded from our judicial memory, nor yet that in England, the ‘rule of law’ still means, be you ever so high, yet the law is above you.

7.6 CONCLUSION

Accordingly, and for the reasons now set out above, it is submitted that the third principal issue must also now be answered in the affirmative. It follows, I submit, that I have now established, a clear argument in support of the following legal contentions, vis.:

(i) that there does indeed exist an offence, under customary international law, of the waging etc. of an act of international aggression etc., termed ‘a crime against peace’:

(ii) that there is a criminal liability in individual natural persons for committing that offence, where they have been sufficiently complicit, and finally;

(iii) that this offence, complete with that individual personal liability, is adopted into the English common law, and is therefore every bit as much within the jurisdiction of the criminal law courts of this country to deal with as, for example, the crime of murder.

It follows that the Defendants to this claim, in the courts below, in reaching their respective decisions not to issue the process sought, have made an error of law (going to jurisdiction), so that in exercise of your supervisory jurisdiction, I humbly beseech, this Honourable Court to grant the relief which I seek. However, and for the purposes of the present application for leave alone, I request merely that it be granted, at present, only in so far as would permit a Divisional Court to consider, inter parties, and as a preliminary matter, the following question involved, and which I respectfully submit is of general public importance, to wit:

“ Where a criminal offence exists, under well established customary international law, complete with a proven personal liability for individuals who commit it ; can the law of the offence, complete with the individual liability, be adopted into, and thereby form a part of, the common law of this country, or can the existence of such a criminal offence only ever be achieved by means of incorporation by way of statute?“

Robert L. MANSON

May MMIII

Claimant in Person and Peace Campaigner

Brynymor, Parrog

NEWPORT, Pembs.

Robbie@brynymor58.freeserve.co.uk

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