The crime of aggression before the house of Lords: Chronicle of a death foretold

Journal of International Criminal Justice

Volumn 4, Issue 4, 2006, Pages 866-877

  Villa, Cristina Villarino ^a  

^a EUROPEAN UNIVERSITY INSTITUTE   (Italy)

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EID: 35748973190     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/mql048     Document Type: Article

References (82)

1. [2006] UKHL 16 (hereinafter, Judgment).
2. Jones, Milling, Olditch, Pritchard and Richards.
3. Contrary to section 1(1) of the Criminal Law Act 1977.
4. Contrary to section 3(b) of the Criminal Damage Act 1971.
5. Contrary to section 1(1) of the Criminal Damage Act 1971.
6. Contrary to section 1(1) of the Criminal Attempts Act 1981.
7. Section 3 of the Criminal Law Act 1967 (hereinafter, CLA 1967): (1) A person may use such force as is reasonable in the circumstances in the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.
8. Cited in skeleton argument, at 3 (on file with the author): 'if one poses the question in stark terms, namely, "Does a citizen have a right or obligation to commit acts which ordinarily would be characterised as crimes under domestic law in order to prevent the executive committing other and greater crimes?" the answer is "no" if the executive is exercising its prerogative powers in relation to foreign policy or deployment of the armed forces.'
9. R. v. Jones and Milling, R. v. Olditch and Pritchard, R. v. Richards, [2005] 1 Cr. App. R. 12 (hereinafter, Jones & Milling).
10. For an insightful analysis of this decision, see R. Cryer,'Aggression at the Court of Appeal', 10 Journal of Conflict & Security Law (2005) 209-230.
11. The facts are summarized in the Judgment, at §§ 3-4.
12. Section 68 of the Criminal Justice and Public Order Act 1994 (hereinafter, CJPOA 1994): (1) A person commits the offence of aggravated trespass if he trespasses on land in the open air and, in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land in the open air, does there anything which is intended by him to have the effect... (b) of obstructing that activity, or (c) of disrupting that activity. (2) Activity on any occasion on the part of a person or persons on land is 'lawful' for the purposes of this section if he or they may engage on the activity on the land on that occasion without committing an offence or trespassing on the land.
13. On 4 February 2003, the Marchwood appellants disrupted the activities of the Marchwood Military Port, where agents of the Ministry of Defence were loading tanks and weapons onto ships for use in Iraq. Among others, they chained themselves to the gates and tanks, cut the perimeter fence and also painted a tank. Valerie Swain disrupted the activities of the RAF base at Fairford on 9 March, only a few days before the Fairford appellants.
14. Benjamin Ayliffe, Valerie Swain, Lindis Percy v. Department of Public Prosecutions, 21 April 2005, (hereinafter, Ayliffe v. DPP) [2005] EWHC 684 (Admin).
15. For a comment see, D.C. Ormerod, 'Aggravated Trespass: Defendants Protesting against Iraq War at Military Bases', Criminal Law Review (December, 2005) 959-961.
16. Ibid., at §§ 10-13.
17. Judgment, §§ 51-53.
18. Judgment, §10.
19. Lord Bingham of Cornhill set out the reasoning in Judgment, §§ 12-19, the other Lords concurring.
20. Resolution 95(I), 11 December 1946, affirming the principles of international law recognized by the Nuremberg Charter and applied by the Nuremberg Tribunal; Resolution 2131 (XX), 21 December 1965; Resolution 2625 (XXV), 24 October 1970; Resolution 3314 (XXIX), 14 December 1974, containing the definition of aggression.
21. Judgment, §18 in fine.
22. See, infra note 26.
23. Judgment, §19; Similarly, Lord Hoffmann at §59 and Lord Mance at §99.
24. See for instance, Lord Mansfield in Triquet v. Bath [1764] 3 Burr 1478
25. Emperor of Austria v. Day and Kossuth [1861] 2 Giff. 628, 66 ER, where Sir John Stuart V-C stated that a 'public right, recognised by the law of nations, is a legal right; because the law of nations is part of the common law of England', at 678.
26. West Rand Central Gold Mining Company Ltd v. The King [1905] 2 KB 391
27. Trendex Trading Corporation v. Central Bank of Nigeria [1977] QB 529.
28. In this decision, Lord Denning MR laid down that 'the rules of international law are incorporated into English law automatically and considered to be part of English law unless they are in conflict with an act of Parliament', at 553
29. Maclaine Watson and Co. Ltd v. Department of Trade and Industry [1988] 3 WLR 1033, where L.J. Nourse affirmed that 'the rules of international law from time to time in force are automatically incorporated into the common law and, subject always to statute, are supreme', at 1089
30. Hutchinson v. Newbury Magistrates Court, 2000 WL 1480082 (QBD), Lord Justice Buxton at §36.
31. For authorities supporting that piracy is an offence created and defined by international law, see, The Hercules [1819] 2 Dod.373,
32. cited in the Written Case, at 66
33. The Magallean Pirates, 1 Spinks 81 [1853] 764 ER 47.
34. The appellants submitted - and the House did not challenge - that the manifold English statutes that addressed the crime of piracy merely dealt with issues of 'venue and procedure', and not with the criminalization of the conduct as such, which derived from the law of nations. See, Written Case, at 69.
35. See A.P.V. Rogers, 'War Crimes Trials under the Royal Warrant: British Practice 1945-1949', 39 International and Comparative Law Quarterly (1990) 780-800.
36. Ibid., at 795.
37. The Court explicitly rejected the need for statutory or judicial incorporation and stated that the reception of the law of nations was guided by the principle of certainty. Thereby, it meant that the rule at stake must be 'clearly established'. See Jones and Milling, at §24.
38. Specifically on the assimilation of international crimes, the Court accepted In re Piracy Jure Gentium [1934], A.C. 586,
39. as authority for the proposition that 'international law is capable of being incorporated into English law so as to create a crime punishable in domestic law', ibid., §§ 26-30.
40. In this case, the Court of Appeals dismissed the applicants' claims on the grounds that the international definition of the crime of aggression lacked the requisite precision and certainty to be translated into a criminal offence. The Court drew on the fact that no consensus has been reached yet on both the definition of aggression and the conditions under which the International Criminal Court will eventually exercise its jurisdiction over this crime to conclude the crime of aggression was not clearly defined. Surprisingly, the Court completely obviated the most relevant instances of practice in its reasoning, namely the Nuremberg and Tokyo Charters and Control Council Law No. 10. We have to highlight, though, that the Court did not go as far as to deny that aggression could properly result in criminal punishment in international law (Cryer reads it differently, supra note 9, at 221).
41. What the Court stated is that a conduct criminalized by international law is not necessarily translated into a domestic criminal offence. That would happen only if 'its characteristics are such that it can be translated into domestic law in a way which would entitle domestic courts to impose punishment' (at §25). From the decision it appears that the relevant criterion would amount to not more than requiring that that the elements of the crime be neatly defined in international law. Ibid., §§ 24-43.
42. In §34. Paragraph 35 of the advice reads as follows: In short there are a number of ways in which the opponents of military action might seek to bring a legal case, internationally or domestically, against the UK, members of the UK government or UK military personnel. Some of these seem fairly remote possibilities, but given the strength of opposition to military action against Iraq, it would not be surprising if some attempts were made to get a case of some sort off the ground. We cannot be certain that they would not succeed ... (cited in Written Case, at 77).
43. Lord Bingham of Cornhill and Lord Hoffmann examined this issue at length in their opinions, the other Lords concurring.
44. Judgment, at §29.
45. Judgment, at §30.
46. 'I do not suggest that these rules admit of no exceptions', Judgment, at §30.
47. Ibid.
48. [1976] AC 249.
49. [2002] UKHL 19.
50. Judgment, at §31.
51. Judgment, at §22 in fine. Similarly, Lord Mance at §101.
52. 'The law concerning safe conducts, ambassadors and piracy is very old. But new domestic offences should in my opinion be debated in Parliament, defined in a statute and come into force on a prescribed date. They should not creep into existence as a result of an international consensus to which only the executive of this country is a party', Judgment, at §62.
53. See Commentary to Art. 16 of the International Law Commission 1996 Draft Code of Crimes Against the Peace and Security of Mankind.
54. Judgment, at §65.
55. Ibid., at §67.
56. See generally, I. Brownlie, International Law and the Use of Force by States (Oxford: Clarendon Press, 1963), especially 185-194
57. ibid., International Law Principles of Public International Law (5th edn, Oxford: Clarendon Press, 1998), at 566
58. M. Hummrich, Der völkerrechtliche Straftatbestand der Aggression (Baden-Baden: Nomos, 2001)
59. Y. Dinstein, War Aggression and Self-Defence (Cambridge: Grotius Publications, 1994).
60. C. Tomuschat, 'Crimes against the Peace and Security of Mankind and the Recalcitrant Third State' in Y. Dinstein and M. Tabory, War Crimes in International Law (The Hague: M. Nijhoff, 1996), at 53.
61. Critically, G. Werle, Principles of International Criminal Law (The Hague: TMC Asser Press, 2005), at 393.
62. For an account of the main issues raised by the crime of aggression at Rome, see generally, M. Politi and G. Nesi (eds), The International Criminal Court and the Crime of Aggression (Aldershot, Hants, England; Burlington, Vt.: Ashgate/Dartmouth, 2004).
63. For applications of the concept of crimes against peace by national jurisdictions in the aftermath of World War II, see Brownlie, International Law and the Use of Force, supra note 41, at 175-182.
64. Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others, Ex Parte Pinochet Ugarte (No. 3) [1999] 2 W.L.R. 827.
65. See, notably, Lord Millet's statement, at 912.
66. The question whether extraterritorial torture had become a crime under English law before s. 134 of the Criminal Justice Act 1988 (incorporating the 1984 Convention against torture) had come into force was never put in argument. For an insightful analysis of what was said and not said, R. O'Keefe, 'Customary International Crimes in English Courts', 27 British Year Book of International Law (2001) 293-335, at 294-295.
67. Supra note 22.
68. See also, J.R.W.D. Jones, 'Droit Anglais, in A. Cassese and M. Delmas-Marty, Juridictions Nationales et Crimes Internationaux (Paris: Presses universitaires de France, 2002) 31-67.
69. For a different view, R. O'Keefe, supra note 45, passim.
70. Asserting the need of statutory enactment in Australia in a case involving the crime of genocide, Nulyarimma and Others v. Thompson and Others [1999] FCA 1192.
71. Judgment, at §22.
72. Judgment, at §28.
73. Lord Bingham made his controversial pronouncement immediately after having examined the war trials conducted by British military courts under the Royal Warrant of 1945. Given that by 1945 the creation of new crimes lay outside the royal prerogative, he inferred that war crimes had been already assimilated without act of Parliament into English law at the time the Warrant was adopted. Lord Mance appeared to share Binghman's views when observing that war crimes - together with piracy and the violation of safe conducts and diplomatic immunity - had been very arguably received and recognised as domestic crimes without statutory enactment in the past (Judgment, at §101). Interestingly, Lord Hoffmann failed to mention the British war crimes trials in his opinion, and stated generally that 'new crimes' were to be incorporated by statute. Thereby, Hoffmann seemed to mean any customary crimes other than those listed in Blackstone (violation of safe conducts, infringement of the rights of ambassadors and piracy), i.e. all modern international crimes (war crimes, crimes against peace, genocide, etc.). On closer examination, it would seem that the Lords were divided on the following: Whereas Lord Binghman and Lord Mance contemplated the possibility that some old war crimes might have been assimilated without statutory enactment before 1945 (let us recall that war crimes have a longer genealogy than crimes against peace or crimes against humanity, which were by-products of World War II), Hoffman appeared to exclude it. On the other hand, all of them agreed that 'now' it is up to Parliament to decide what customary crimes become part of the English legal system. Significantly, the Lords failed to elucidate when 'now' was, and this is a clear shortcoming of the decision. However, from the opinions of the Lords follows that at least by the time aggression became a customary crime (arguably by 1946, the year the General Assembly adopted Resolution 95 (1)) a statute was needed. Therefore, even assuming that some war crimes might have been automatically assimilated into the English legal system in the past, their incorporation after 1946 would have required domestic legislation. Somewhat surprisingly, Bingham's dictum suggests that war crimes might be subject to direct assimilation irrespective of the time when they might attain customary status.
74. See, among others, the penal codes of Armenia (Art. 384), the Russian Federation (Art. 353), Uzbekistan (Art. 151), Tajikistan (Art. 395), Ukraine (Art. 437), Latvia (§72), Republic of Moldova (Art. 139), Bulgaria (Art. 409), Republic of Macedonia (Art. 415 punishes only the instigation to commit aggression); Republic of Montenegro (Art. 442), Latvia (§72). English translations available online at http://www.legistationline.org (visited 10 July 2006).
75. According to T. Gut and M. Wolpert, the prosecution of the international crime of aggression is not barred per se in Canadian law: In A. Eser, U. Sieber, H. Kreicher (eds), National Prosecution of International Crimes (Berlin: Duncker & Humblot, 2005), 33-34.
76. Remarkably, the Statute of the Iraqi Special Tribunal does not provide jurisdiction over the crime of aggression, see C. Kress, 'The Iraqi Special Tribunal and the Crime of Aggression', 2 Journal of International Criminal Justice (JICI) (2004) 347-352.
77. For an account of the particularities of the crime of aggression under German law, see C. Kress, 'The German Chief Federal Prosecutor's Decision Not to Investigate, the Alleged Crime of Preparing Aggression against Iraq', 2 JICJ (2004) 245-264.
78. Document PCNICC/2002/2/Add.2 provides an overview of the options currently discussed in the framework of the Special Working Group on Aggression. See also documents ICC-ASP/4/32, Annex II.B, Annex II. C and Annex II. D.
79. Cryer, supra note 9, at 1, notes 1-2. The Vietnam war gave rise to a remarkable wave of anti-war litigation before United States tribunals.
80. See, David Henry Mitchell, III v. US; 20 March 1967, 386 US 972, 87 S.Ct. 1162,
81. Petition for writ of certiorari denied (Petitioner did not report for induction on the grounds that the war in Vietnam was unlawful, since it was conducted in violation of the Nuremberg Charter. He argued he wanted to avoid becoming an accomplice to the crime. Justice Douglas observed that a considerable body of opinion shared the views of the petitioner regarding the unlawfulness of the war and concluded certiorari should be granted, at 1163): Dennis Mora et al., v. Robert S. McNamara, Secretary of Defense et al., 18 December 1967, 389 US 934, 88 S.Ct. 282. Petition for writ of certiorari denied. (Petitioners were ordered to a West Coast replacement station for shipment to Vietnam. They brought suit to prevent carry out those orders and requested a declaratory judgment stating the war was illegal. Dissenting from the majority, Justice Stewart and Justice Douglas observed that those were 'deep and troubling questions, and that certiorari should be granted, at 282-283)
82. US District Court D. Maryland; US v. Philip Berrigan and others; 19 April 1968, 283 F. Supp. 336 (Defendants mutilated records filed in a public office and hindered the administration of the Military Selective Service Act. They argued the Vietnam War was unlawful. The Court asserted they had no standing to raise the claim on the grounds that their rights had not been affected. It ruled further that the question of violations of international law by the government was uniquely a 'political question' and hence the Nuremberg defence could not be raised).