Judgments - R v. Jones (Appellant) (On Appeal from the Court of Appeal (Criminal Division)) (formerly R v. J (Appellant)), Etc.

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    12.  I would question whether, as ruled by the United States Military Tribunal in United States of America v Ernst von Weizsäcker et al at p 319 of its judgment of 11-13 April, 1949, "aggressive wars and invasions have, since time immemorial, been a violation of international law, even though specific sanctions were not provided". It may, I think, be doubtful whether such wars were recognised in customary international law as a crime when the 20th century began. But whether that be so or not, it seems to me clear that such a crime was recognised by the time the century ended.

    13.  It is, I think, enough to identify the major milestones along the road leading to this conclusion. A draft Treaty of Mutual Assistance, sponsored by the League of Nations, described aggressive war as an international crime in 1923. In the following year the same description was used in the preamble to a protocol recommended by the League of Nations Assembly but not ratified. In 1927 the League of Nations Assembly unanimously adopted a preamble which used that description. The Pan-American Conference in 1928 unanimously resolved that "war of aggression constitutes an international crime against the human species". In the same year the General Treaty for the Renunciation of War (94 LNTS 57, the "Kellogg-Briand Pact") condemned recourse to war as an instrument of international policy.

    14.  The Second World War gave new impetus to this movement. The Charter of the United Nations, in its preamble and in article 2(4), set its face against the threat and use of force. Article 6 of the Charter of the International Military Tribunal established to try major war criminals of the European Axis at Nuremberg defined its jurisdiction as including

    "(a)  Crimes against peace. Namely, planning, preparation, initiation, or waging of a war of aggression or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing."

The International Military Tribunal convicted a number of defendants of offences under this head. By General Assembly Resolution 95(1) of 11 December 1946 the principles recognised by the Charter of the International Military Tribunal and its judgment were affirmed. The Charter of the International Military Tribunal for the Far East was, save for an immaterial difference of wording, to the same effect as article 6(a). Law No 10 of the Control Council for Germany (20 December 1945) recognised a crime against peace in very similar terms.

    15.  The condemnation of aggressive war found further expression in General Assembly Resolutions 2131(xx) of 21 December 1965, 2625(xxv) of 24 October 1970 and 3314 (xxix) of 14 December 1974, in the last of which the definition of an act of aggression in contravention of the Charter was approved as including:

    "(a)  The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack . . .

    (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."

In 1954 the International Law Commission, in a Draft Code of Offences against the Peace and Security of Mankind, defined as such offences

    "(1)  Any act of aggression, including the employment by the authorities of a State of armed force against another State for any purpose other than national or collective self-defence or in pursuance of a decision or recommendation of a competent organ of the United Nations."

    16.  In a further ILC draft code of 1996, article 1(2) declares that "Crimes against the peace and security of mankind are crimes under international law and punishable as such, whether or not they are punishable under national law". Thus, as the commentary (paragraph (9)) makes clear, they are crimes "irrespective of the existence of any corresponding national law". Article 2 of the code provides, as was established at Nuremberg, that individuals are personally responsible for crimes committed under international law. Article 16 addresses the crime of aggression and provides that "An individual who, as leader or organizer, actively participates in or orders the planning, preparation, initiation or waging of aggression committed by a State shall be responsible for a crime of aggression". Paragraph (14) of the commentary on article 8 makes plain that

    "An individual cannot incur responsibility for this crime in the absence of aggression committed by a State. Thus, a court cannot determine the question of individual criminal responsibility for this crime without considering as a preliminary matter the question of aggression by a State."

But article 16 establishes, as was held at Nuremberg and other post-war trials, that aggression is a leadership crime: it cannot be committed by minions and footsoldiers. Article 8, addressing jurisdiction, provides that jurisdiction over the crime of aggression shall rest with an international criminal court, but without precluding trial of its own nationals alleged to have committed that crime by a state whose leaders participated in an act of aggression.

    17.  In the Rome Statute of the International Criminal Court 1998 the jurisdiction of the court is limited by article 5 to "the most serious crimes of concern to the international community as a whole". These are: the crime of genocide; crimes against humanity; war crimes; and the crime of aggression. But, by article 5(2), the court is not to exercise jurisdiction over the crime of aggression until a provision is adopted defining the crime and setting out the conditions under which the court may exercise jurisdiction with respect to it.

    18.  In the Case Concerning Military and Paramilitary Activities in and against Nicaragua (Merits) (Nicaragua v United States) [1986] ICJ Reports 14, para 190, the prohibition on the use of force in article 2(4) of the United Nations Charter was accepted as jus cogens, a universally recognised principle of international law. As Professor Brownlie has observed (Principles of Public International Law, 5th ed (1998), p 566), "whatever the state of the law in 1945, Article 6 of the Nuremberg Charter has since come to represent general international law".

    19.  It was suggested, on behalf of the Crown, that the crime of aggression lacked the certainty of definition required of any criminal offence, particularly a crime of this gravity. This submission was based on the requirement in article 5(2) of the Rome statute that the crime of aggression be the subject of definition before the international court exercised jurisdiction to try persons accused of that offence. This was an argument which found some favour with the Court of Appeal (in para 43 of its judgment). I would not for my part accept it. It is true that some states parties to the Rome statute have sought an extended and more specific definition of aggression. It is also true that there has been protracted discussion of whether a finding of aggression against a state by the Security Council should be a necessary pre-condition of the court's exercise of jurisdiction to try a national of that state accused of committing the crime. I do not, however, think that either of these points undermines the appellants' essential proposition that the core elements of the crime of aggression have been understood, at least since 1945, with sufficient clarity to permit the lawful trial (and, on conviction, punishment) of those accused of this most serious crime. It is unhistorical to suppose that the elements of the crime were clear in 1945 but have since become in any way obscure.

(3)  Crimes recognised in customary international law are (without the need for any domestic statute or judicial decision) recognised and enforced by the domestic law of England and Wales.

    20.  In supporting this proposition the appellants were able to rely on the great authority of Blackstone who (in Book IV, chap 5, p 68, of his Commentaries) listed the "principal offences against the law of nations, animadverted on as such by the municipal laws of England" as violation of safe conducts, infringement of the rights of ambassadors and piracy.

    21.  Each of these offences has a long legal genealogy. A statute enacted in the reign of Edward III (see Holdsworth, A History of English Law, 1936, vol 2, p 450) made it treason to kill an ambassador, and a statute of Henry V (2 Henry V c.6) imposed penalties on those who broke truces or violated safe conducts. The immunity of ambassadors when performing diplomatic duties was confirmed by the statute 7 Anne c.12, but this statute has been repeatedly recognised as declaring what the law of England, deriving from the law of nations, already was: Triquet v Bath (1764) 3 Burr 1478, 1478-1479, 1481; Viveash v Becker (1814) 3 M and S 284, 292; Novello v Toogood (1823) 1 B and C 554, 562; Taylor v Best (1854) 14 CB 487, 519; Magdalena Steam Navigation Company v Martin (1859) 2 E1 and E1 94, 114. A long series of domestic statutes dating back to 15 Ric II c.3 addressed the crime of piracy, but the report of the Privy Council delivered by Viscount Sankey LC in Re Piracy Jure Gentium [1934] AC 586, 594, made plain that a distinction must be drawn between piracy under any municipal Act of a particular country and piracy jure gentium.

    22.  While the appellants acknowledged the paucity of authority on the assimilation of customary international law crimes into municipal law, other than those listed by Blackstone, they contended that war crimes earned inclusion in any modern list. It is true that certain practices have, since mediaeval times, been regarded as contrary to the laws and usages of war. After the Second World War some countries provided for the trial of those accused of this crime by statute (as in Australia), or Order in Council under statutory authority (Canada), and the United States appointed military commissions, a practice which pre-dated the Constitution and was recognised but not established by statute: see Rogers, "War Crimes Trials under the Royal Warrant: British Practice 1945-1949" (1990) 39 ICLQ 780, 787. In this country, an enabling statute was discussed (Rogers, op. cit., pp 788-789) but in the event a Royal Warrant was issued under the royal prerogative on 18 June 1945 to provide for the trial in military courts of persons charged with "violations of the laws and usages of war", which were treated as synonymous with war crimes. Such courts were to take judicial notice of the laws and usages of war. Pursuant to this instrument some 500 trials were held during the years 1945-1949 (Rogers, op. cit., p 795). Re Sandrock and Others (1945) 13 ILR 297, which concerned the summary execution of a prisoner of war, is one reported example. Since, by 1945, the creation of new offences lay outwith the royal prerogative, the underlying premise of the Royal Warrant must, I think, have been that war crimes, recognised as such in customary international law, had been assimilated into our domestic law. It was, however, contemplated that an Act of Indemnity should be passed to give retrospective validity to the proceedings (Rogers, op. cit., pp 788-799), which may betray some uncertainty on the point. But history has moved on. In 1950 the International Law Commission, summarising the Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, listed war crimes ("Violations of the laws or customs of war") as crimes under international law. In section 1(1) of the War Crimes Act 1991, jurisdiction was conferred on British courts to try charges of murder, manslaughter or culpable homicide against a person in this country irrespective of his nationality at the time of the alleged offence if that offence was committed between 1 September 1939 and 5 June 1945 in a place which at the time was part of Germany or under German occupation and "constituted a violation of the laws and customs of war", an expression which it was not thought necessary to define. It would seem to me at least arguable that war crimes, recognised as such in customary international law, would now be triable and punishable under the domestic criminal law of this country irrespective of any domestic statute. But it is not necessary to decide that question, since war crimes are something quite distinct from the crime of aggression.

    23.  I would accordingly accept that a crime recognised in customary international law may be assimilated into the domestic criminal law of this country. The appellants, however, go further and contend that that result follows automatically. The authorities, as I read them, do not support that proposition. Lord Cockburn CJ rejected it in R v Keyn (1876) 2 Ex D 63, 203, when he said:

    "Nor, in my opinion, would the clearest proof of unanimous assent on the part of other nations be sufficient to authorize the tribunals of this country to apply, without an Act of Parliament, what would practically amount to a new law. In so doing we should be unjustifiably usurping the province of the legislature. The assent of nations is doubtless sufficient to give the power of parliamentary legislation in a matter otherwise within the sphere of international law; but it would be powerless to confer without such legislation a jurisdiction beyond and unknown to the law, such as that now insisted on, a jurisdiction over foreigners in foreign ships on a portion of the high seas."

In R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 3) [2000] 1 AC 147 the issue was whether British courts had jurisdiction, before section 134 of the Criminal Justice Act 1988 came into force, to try those accused of torture abroad. But I agree with the observation of Buxton LJ in Hutchinson v Newbury Magistrates' Court (2000) 122 ILR 499, 506, where a contention similar to the appellants' was advanced:

    "It is also in my view impossible to reconcile that contention with the debate in Pinochet (No 3) which concluded, illuminatingly subject to the specific dissent on this point of Lord Millett, that although State torture had long been an international crime in the highest sense (to adopt the formulation of Lord Browne-Wilkinson [2000] 1 AC page 198F) and therefore a crime universally in whatsoever territory it occurred, it was only with the passing of Section 134 of the Criminal Justice Act 1998 that the English criminal courts acquired jurisdiction over 'international', that is to say extra territorial, torture."

In the context of genocide, an argument based on automatic assimilation was rejected by a majority of the Federal Court of Australia in Nulyarimma v Thompson (1999) 120 ILR 353. In the context of abduction it was rejected by the Supreme Court of the United States in Sosa v Alvarez-Machain et al 542 US 692 (2004). It is, I think, true that "customary international law is applicable in the English courts only where the constitution permits": O'Keefe, "Customary International Crimes in English Courts" (2001) BYIL 293, 335. I respectfully agree with the observations of Sir Franklin Berman (Asserting Jurisdiction: International and European Legal Perspectives, ed M Evans and S Konstantinidis, 2003, p 11) answering the question whether customary international law is capable of creating a crime directly triable in a national court:

    "The first question is open to a myriad of answers, depending on the characteristic features of the particular national legal system in view. Looking at it simply from the point of view of English law, the answer would seem to be no; international law could not create a crime triable directly, without the intervention of Parliament, in an English court. What international law could, however, do is to perform its well-understood validating function, by establishing the legal basis (legal justification) for Parliament to legislate, so far as it purports to exercise control over the conduct of non-nationals abroad. This answer is inevitably tied up with the attitude taken towards the possibility of the creation of new offences under common law. Inasmuch as the reception of customary international law into English law takes place under common law, and inasmuch as the development of new customary international law remains very much the consequence of international behaviour by the Executive, in which neither the Legislature nor the Courts, nor any other branch of the constitution, need have played any part, it would be odd if the Executive could, by means of that kind, acting in concert with other States, amend or modify specifically the criminal law, with all the consequences that flow for the liberty of the individual and rights of personal property. There are, besides, powerful reasons of political accountability, regularity and legal certainty for saying that the power to create crimes should now be regarded as reserved exclusively to Parliament, by Statute."

(4)  "Crime" in section 3 of the 1967 Act covers a crime established in customary international law, such as the crime of aggression.

    24.  Section 3 of the Criminal Law Act 1967 provides:

    "(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.

    (2)  Subsection (1) above shall replace the rules of the common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose."

A side-note "Use of force in making arrest, etc" follows a draft of the Criminal Law Revision Committee, 7th Report, 1965 (Cmnd 2659) which recommended the substance of the provision. It is accepted that the reasonableness of the force used must be judged objectively in the circumstances which the defendant believed to exist, but this belief can extend only to facts and not to the legal consequences or implications of those facts.

    25.  I have some doubt whether section 3 was ever intended to apply to conduct like the appellants' which, although causing damage to property in some cases, was entirely peaceable and involved no violence of any kind to any person. In its Report on Offences of Damage to Property 1970 (Law Com No 29), para 49, the Law Commission appears to have considered that a policeman who forced open a door to execute a warrant of arrest could raise a defence of lawful excuse under what became the 1971 Act, and in Hutchinson v Newbury Magistrates' Court (2000) 122 ILR 499, 508, Buxton LJ understood section 3 to have been introduced to deal with physical force to the person. It was, however, common ground before Grigson J that what the Fairford appellants did or intended to do involved a use of force; there is authority to support that view (Swales v Cox [1981] QB 849; R v Renouf [1986] 1 WLR 522); this question of interpretation was not the subject of appeal; and it has not been fully investigated. I shall therefore treat the section as applicable to acts such as the appellants did.

    26.  The main object of the 1967 Act was to amend the law of England and Wales by abolishing the distinction between felonies and misdemeanours as recommended by the Criminal Law Revision Committee. Part I of the Act, headed "Felony and Misdemeanour", includes section 3 and contains provisions governing matters such as arrest, trial and penalties on conviction. Part II abolished a number of obsolete crimes. Part III abolished tortious liability for maintenance and champerty. The focus of the Act is entirely domestic, and it would seem to me very highly unlikely that Parliament understood "crime" in section 3 as covering crimes recognised in customary international law but not assimilated into our domestic law by any statute or judicial decision. In construing a domestic statute the ordinary practice is to treat "offence", in the absence of an express provision to the contrary, as referring to an offence committed here against a common law or statutory rule: R (Rottman) v Commissioner of Police of the Metropolis [2002] UKHL 20, [2002] 2 AC 692, para 67. The same approach must apply to "crime". Nothing in the Act or in the Report on which it was based suggests a contrary intention in this case. I cannot, therefore, accept the appellants' submission on this issue.

(5)  Alternatively, "crime" in section 3 means a crime in the domestic law of England and Wales, and the crime of aggression is such.

    27.  I approach this proposition assuming the correctness of the conclusions already reached, that "crime" in section 3 means a crime in the domestic law of England and Wales and that a crime recognised as such in customary international law (such as the crime of aggression) may, but need not, become part of the domestic law of England and Wales without the need for any domestic statute or judicial decision.

    28.  The lack of any statutory incorporation is not, however, a neutral factor, for two main reasons. The first is that there now exists no power in the courts to create new criminal offences, as decided by a unanimous House in Knuller (Publishing, Printing and Promotions) Ltd v Director of Public Prosecutions [1973] AC 435. While old common law offences survive until abolished or superseded by statute, new ones are not created. Statute is now the sole source of new criminal offences. The second reason is that when it is sought to give domestic effect to crimes established in customary international law, the practice is to legislate. Examples may be found in the Geneva Conventions Act 1957 and the Geneva Conventions (Amendment) Act 1995, dealing with breaches of the Geneva Conventions of 1949 and the Additional Protocols of 1977; the Genocide Act 1969, giving effect to the Genocide Convention of 1948; the Criminal Justice Act 1988, s 134, giving effect to the Torture Convention of 1984; the War Crimes Act 1991, giving jurisdiction to try war crimes committed abroad by foreign nationals; the Merchant Shipping and Maritime Security Act 1997, s 26, giving effect to provisions of the United Nations Convention on the Law of the Sea 1982 relating to piracy; and sections 51 and 52 of the International Criminal Court Act 2001, giving effect to the Rome Statute by providing for the trial here of persons accused of genocide, crimes against humanity and war crimes, but not, significantly, the crime of aggression. It would be anomalous if the crime of aggression, excluded (obviously deliberately) from the 2001 Act, were to be treated as a domestic crime, since it would not be subject to the constraints (as to the need for the Attorney General's consent, the mode of trial, the requisite mens rea, the liability of secondary parties and maximum penalties) applicable to the crimes which were included.

    29.  These reasons, taken together, are very strong grounds for rejecting the appellants' contention, since they reflect what has become an important democratic principle in this country: that it is for those representing the people of the country in Parliament, not the executive and not the judges, to decide what conduct should be treated as lying so far outside the bounds of what is acceptable in our society as to attract criminal penalties. One would need very compelling reasons for departing from that principle.

    30.  In the present case, involving the crime of aggression, there are compelling reasons for not departing. A charge of aggression, if laid against an individual in a domestic court, would involve determination of his responsibility as a leader but would presuppose commission of the crime by his own state or a foreign state. Thus resolution of the charge would (unless the issue had been decided by the Security Council or some other third party) call for a decision on the culpability in going to war either of Her Majesty's Government or a foreign government, or perhaps both if the states had gone to war as allies. But there are well-established rules that the courts will be very slow to review the exercise of prerogative powers in relation to the conduct of foreign affairs and the deployment of the armed services, and very slow to adjudicate upon rights arising out of transactions entered into between sovereign states on the plane of international law. The first of these rules is vouched by authorities such as Chandler v Director of Public Prosecutions [1964] AC 763, 791, 796; Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 398; Lord Advocate's Reference No 1 of 2000 2001 JC 143, para 60; R (Marchiori) v The Environment Agency [2002] EWCA Civ 03, [2002] EuLR 225, paras 38-40. The second rule is supported by such authorities as Buttes Gas and Oil Co v Hammer [1982] AC 888, 932; J H Rayner (Mincing Lane) Limited v Department for Trade and Industry [1990] 2 AC 418, 499; Westland Helicopters Limited v Arab Organisation for Industrialisation [1995] QB 282, 292; and R (on the application of Campaign for Nuclear Disarmament) v Prime Minister of the United Kingdom [2002] EWHC 2777 (Admin), [2003] 3 LRC 335, paras 38, 40. In Buttes, at p 933, Lord Wilberforce cited with approval the words of Fuller CJ in the United States Supreme Court in Underhill v Hernandez 168 US 250 (1897), 252:

    "Every sovereign State is bound to respect the independence of every other sovereign State, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves."

I do not suggest that these rules admit of no exceptions: cases such as Oppenheimer v Cattermole [1976] AC 249 and Kuwait Airways Corporation v Iraqi Airways Company (Nos 4 and 5) [2002] UKHL 19, [2002] 2 AC 883 may fairly be seen as exceptions. Nor, in the present context, is the issue one of justiciability, to which many of these authorities were directed. In considering whether the customary international law crime of aggression has been, or should be, tacitly assimilated into our domestic law, it is nonetheless very relevant not only that Parliament has, so far, refrained from taking this step but also that it would draw the courts into an area which, in the past, they have entered, if at all, with reluctance and the utmost circumspection.

    31.  The potential and readily foreseeable problems which might arise if it were permissible to impede military preparations or action by the existing government in this country on the ground of their unlawfulness would not end there. For a person so acting could, at least arguably, on facts more significant than those relied on here, be said to "be adherent to the King's enemies in his realm, giving to them aid and comfort in the realm, or elsewhere" within the meaning of the Treason Act 1351, or to commit the common law offence of sedition by exciting disaffection against the government or the constitution. It has never been a defence to such a charge that the Crown or the government had committed itself to an unjust or unlawful cause. It would be strange if the same conduct could be both a crime and a defence. The justification relied on by the appellants would also, if legally available, give rise to applications for disclosure which, if allowed, would be likely to result in the discontinuance of any prosecution. As the House observed in R v H [2004] UKHL 3, [2004] 2 AC 134, para 35,

    "The trial process is not well served if the defence are permitted to make general and unspecified allegations and then seek far-reaching disclosure in the hope that material may turn up to make them good."

I am of the clear opinion that the crime of aggression is not a crime in the domestic law of England and Wales within the meaning of section 3.

(6)  "Offence" in section 68(2) of the 1994 Act covers an offence established in customary international law, such as the crime of aggression.

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