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.

Further, that, it is submitted this rule is now applicable, in the contemporary context of international humanitarian law, to any ‘armed conflict’ in which the unlawful ‘use of force’ is employed between states without lawful justification, whether or not that conflict would also amount to or involve a state of war existing between the parties (stricto sensu). None the less, even were the former language, as per the Nuremberg Principles to be employed, which would require that the act of aggression concerned, amounted to or involved a state of war, then, in the circumstances of the present case, and applying the recognised common law tests from the period, the recent armed, hostile and opposed military invasion, occupation and subsequent overthrow of the State of Iraq, by the combined land, sea and air forces of the so-called US/UK coalition, and which forms the gravamen of the charge laid in the Court below, is of such extensive character, widespread application and sustained over such a period of at least 5 to 8 weeks, that it would unquestionably also satisfy even that description, i.e. of being an of aggressive war, were it to be deemed necessary that it should do so, in order to make out the offence.

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.

I now turn to consider the aspect of the issues raised by the application of the law of that crime in practice and to the circumstances of the present case.

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