7.5 JUDGE WORKMAN’S PERSPECTIVE

7.5.1 JUDICIAL LEGISLATION?

In his ruling in the Court below, the First Defendant (the Chief Magistrate - Judge Workman) said in his ruling (see above @ s.2.2) as follows:

“ In recent times, no offences have been created at common law and recent offences with an international element have all been introduced by way of statute. I am therefore not satisfied that the waging of an aggressive war is a crime known to English law and I do not propose to issue the summonses.”

As regards his first point, there is very clearly a great deal of case law authority and texts by eminent jurists available to support the undoubted proposition that, in contemporary times in this country, we have now passed far beyond the acceptability of new criminal offences being created by the common law judges, rather than through Parliament. However, I need not tax the reader at all with any review of that jurisprudence, because, the allusion to that prohibition, as being relevant in the circumstances of this case, is both misconceived in practice and misguided in principle. It fails utterly to appreciate the underlying justification at first principles for the recognition of that prohibition.

It rests upon the notion that we will no longer tolerate “judge made law” in this country creating new criminal offences, when under the constitutional ‘separation of powers’ that legislative role is reserved for Parliament (see naturally the opinions of their Lordship’s House in Knuller Ltd. v. the DPP [1973] AC 435 (HL) @ p.474 per Lord Diplock). But the criminal offence relied upon by this Claimant was made by no judge, nor do I, nor ever would I dream of, calling upon or requiring any judge to create such a “new” offence, just to fit some perceived requirement to update the common law to fit current social circumstances etc. Such a proposition is frankly absurd in modern times, and indicates a complete misunderstanding of my proposition.

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.

As regards his second point, the mere fact that there have been several elements of international conventional law, disclosing criminal offences, such as grave breaches of the four Geneva Conventions (1949) or the crime of Genocide under the UN Convention (1948), which have in relatively recent times been introduced into our domestic law by way of statutory incorporation (eg the statutes of 1957 & 1969 respectively), whilst surely a laudable achievement in general terms, cannot found the basis for any sensible argument for the bald suggestion that therefore other and completely different elements of customary international law, not capable of such statutory incorporation, cannot have been separately adopted into the common law. Rather the case for consistency would suggest strongly that the incorporation of the conventional provisions is in harmony with the adoption of the comparable customary ones.

In the end, let us be candid, what the First Defendant is impliedly alluding to, is the unsubtle suggestion that the only means, he is prepared to find judicially acceptable, whereby the customary international criminal offence of “aggression”, could be transposed (to pick a neutral term) into British domestic law, were if it was to be added to the criminal jurisdiction of the brand new International Criminal Court, yet to hear a case, in the first place by amendment of the Rome Statute (1998) establishing that Court, and thereafter such amendment being incorporated by Parliament, as it saw fit, by means of appropriately amending the ICC Act, 2000.

Such a process may indeed possibly in due course take place, in years to come, if the necessary unanimous and international agreement can be reached in the Assembly of States Party to the Statute, on the necessary common and uniform methods for the arrest, detention, prosecution, extradition, trial and punishment etc. of persons, particularly foreign nationals who are most likely to have been recently deposed and very important former high officials or ministers of their home state, possibly even former Heads of State. But such matters, especially concerning the criminal justice system treatment of foreign nationals who were or may remain VIP’s, may well involve matters of delicate international diplomacy. In any event, amendment of the Statute is not possible under the provisions of Article 121 thereof for at least a further 7 years.

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.

After all, the Rome Statute does not purport to have created the offences which are within the jurisdiction of the ICC, only to have formulated a common means and standard for the effective administration of the prosecution of those offences by States Party, pursuant to the exercise of an agreed universal and parallel jurisdiction. See for example the Preamble to the Statute:

“ PREAMBLE

The States Parties to this Statute,

Conscious that all peoples are united by common bonds, their cultures pieced together in a shared heritage, and concerned that this delicate mosaic may be shattered at any time,

Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity,

Recognizing that such grave crimes threaten the peace, security and well-being of the world,

Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation,

Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes,

Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes,

Reaffirming the Purposes and Principles of the Charter of the United Nations, and in particular that all States shall refrain 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,

Emphasizing in this connection that nothing in this Statute shall be taken as authorizing any State Party to intervene in an armed conflict or in the internal affairs of any State,

Determined to these ends and for the sake of present and future generations, to establish an independent permanent International Criminal Court in relationship with the United Nations system, with jurisdiction over the most serious crimes of concern to the international community as a whole,

Emphasizing that the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions,

Resolved to guarantee lasting respect for and the enforcement of international justice,

Have agreed as follows ... “

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.

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