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What status do ‘crimes of aggression’ have in English law? A personal opinion by Zia Akhtar who examines the recent judicial review in the context of recent air strikes on Syria
The UK government has been accused of breaching international law in carrying out air strikes on Syria in the wake of the chemical attack on 7 April 2018 in the Dhouma suburb of Damascus. The UK launched the missile attack in consort with the US and France on Syrian facilities and research centres before the Organisation for the Prohibition of Chemical Weapons, the implementing body for the Chemical Weapons Convention, was given the opportunity to conduct an investigation and apportion liability. In my view, it is reminiscent of the invasion of Iraq in 2003 on the pretext of neutralising weapons of mass destruction (WMDs), which Hans Blix, head of the UN Monitoring, Verification and Inspection Commission had already indicated never existed. The legal defence is embedded in the non-justiciability of the courts to hear claims of a war of aggression.
The government presented legal justifications for the attack based upon the breach of ‘customary international law prohibition on the use of chemical weapons’ which amounts ‘to a war crime and a crime against humanity’ and allows the UK ‘under international law, on an exceptional basis, to take measures in order to alleviate overwhelming humanitarian suffering’ (Policy paper: Syria action – the government legal position, 14 April 2018). This is predisposed to ‘three conditions being met which are: (i) convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief; (ii) it must be objectively clear that there is no practicable alternative to the use of force if lives are to be saved; and that (iii) the proposed use of force must be necessary and proportionate to the aim of relief of humanitarian suffering and must be strictly limited in time and in scope to this aim’. Accordingly, the ‘circumstances of this military action met the requirements of humanitarian intervention’.
The issues that surface in this case are first that the strikes on Syria did not have parliamentary approval and secondly, it was carried out without authorisation from the UN Security Council. There had been no recourse to diplomacy and UN Security General António Guterres said that states had an ‘obligation, particularly in peace and security matters, to act consistently with the Charter of the United Nations and with international law in general. If the law is ignored, it is undermined’ (SC/13296, 14 April 2018). Article 2(4) of the UN Charter prohibits the ‘threat or use of force’ and calls on all ‘Members to respect the sovereignty, territorial integrity and political independence of other States’.
The only action that is permitted under the framework of the UN is by recourse to Chapter VII (Action with respect to threats to the peace, breaches of the peace, and acts of aggression). It states categorically in Article 39 that it is the Security Council which shall determine the existence of when there will be a breach. The only exception is provided by Article 51 which allows the ‘inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security’. In the instance of the attack on Syria, or the invasion of Iraq, there was no threat to the UK or US, who were the participant states.
The Report of the Iraq Inquiry (‘Chilcot report’) that issued its findings on 6 July 2016 challenged the actions of the British political leadership at the time of the attack on Iraq. It was found to have ‘undermined the authority of the UN Security Council’ and the reasons for going into war were deemed to be ‘far from satisfactory’ and ‘the UN route was never exhausted’. It stated that ‘judgments about the severity of the threat posed by Iraq’s WMDs were presented with a certainty that was not justified’. The issue of complicity could ‘of course, only be resolved by a properly constituted and internationally recognised Court’. The issue was whether there could be a prosecution for war crimes and for a war of aggression in the English courts. This matter is vital in understanding the scope of the Executive in conducting a war launched on a unilateral basis without authority of the Security Council. The Chilcot report served as a basis for litigation and was raised in judicial review proceedings served to indict Tony Blair and his immediate colleagues on the charge of a crime of aggression.
In R (on the application of Al Rabbat) v Westminster Magistrates’ Court (HM Attorney General intervening) [2017] EWHC 1969 (Admin), the applicant argued that the crime of aggression should be considered as part of the domestic common law, having been incorporated at least since 1945 when the International Military Tribunal (IMT) at Nuremburg prosecuted Nazi war criminals in the aftermath of World War II.
The applicant argued that Article 6 (a) of the Charter for the IMT at Nuremberg had given that Tribunal jurisdiction over: ‘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’. He quoted the Attorney General, Sir Hartley Shawcross QC, who representing the UK had underlined that the Article was ‘merely declaratory of an existing principle of international law’. It was clearly established from this point that the ‘crime of aggression’ was recognised under international law and of ‘sufficient certainty that prosecutions before an international tribunal could be brought’. The basis for the prosecution was, in his view, the Chilcot report which had established the grounds for the parties to be ‘tried before a court so that they could be held to account for their criminal breach of the law’.
The Lord Chief Justice, Lord Thomas of Cwmgiedd and Mr Justice Ouseley held that there was no crime of aggression in English law under which the former prime minister could be charged. (R v Knuller [1973] AC 435 had established that a new criminal offence could only be created by an Act of Parliament and no new offence could be created by the common law (at 17).) The High Court concluded that the domestic courts of England and Wales could not depart from the clear principle that it was for Parliament to make such conduct criminal under domestic law.
The court followed the decision in R v Jones (Margaret) [2007] 1 AC 136 where the House of Lords acknowledged that aggression was a crime under international law but had not been adopted in domestic criminal law and required a statute to incorporate it. Lord Bingham ruled ‘when giving effect to the Rome Statute by the International Criminal Court Act 2001, Parliament had not included the “crime of aggression” in the offences created under the act’. ‘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 the subject of 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.’ Lord Hoffman concurred with his Lordship and refused to accept the defence of trespass on military premises as preventing an illegal war of aggression. He ruled: ‘The decision to go to war, whether one thinks it was right or wrong, fell squarely within the discretionary powers of the Crown to defend the realm and conduct its foreign affairs’. His Lordship asserted that the charge of aggressive war against the executive would presume commission of crime by the state which would ‘involve a decision in the courts on the culpability in going to war, but there were well established rules that courts would be slow to review the exercise of prerogative powers in relation to the conduct of foreign affairs and deployment of armed forces’.
The International Criminal Court (ICC) established the definition of the crime of aggression at the Kampala Conference in 2010 and its jurisdiction over which was activated after 1 January 2017 (Article 121, para 5) by consensus or at least a two-thirds majority. The Assembly of State Parties which concurred in achieving this amendment is restricted by the court’s jurisdiction in relation to those it can indict for this offence. The ICC is able to exercise its jurisdiction over the crime of aggression where an ICC member state brings forth a referral to the court, an ICC prosecutor initiates an investigation propiu motu, or UN Security Council makes a reference to the court. However, the UK has already issued a position paper that would obstruct any such indictments being issued against its officers of committing the crime of aggression. The Foreign Office stated it ‘required clarity on the ICC’s jurisdiction prior to any decision to include the crime of aggression within the court’s remit’.
This approach has led to criticism, suggesting the intention is to enforce immunity of the officers by preventing due process. ‘What these states really want is assurance that there will be no jurisdiction over their nationals in the absence of their ratification, and without having to resort to an opt-out declaration,’ wrote Stefan Barriga (‘The Scope of ICC jurisdiction over the crime of aggression: a different perspective’, Blog of the European Journal of International Law, 29 September 2017). Dapo Akande views the stance of the UK, and other recalcitrant states such as France, Japan, Canada, Norway and Colombia, as presenting an ‘alternate interpretation of the Kampala amendments’ that ‘significantly limits the reach of the ICC in respect to the crime of aggression and will, perhaps, make it more reliant upon Security Council referrals of acts of aggression’ (‘International Criminal Court Gets Jurisdiction Over the Crime of Aggression’, Blog of the European Journal of International Law, 15 December 2017).
This implies that the countries on the Security Council could veto the referrals of their officers from being indicted before the ICC. It means they will not have to face trial if the ratifying country has not agreed to be party to the ICC’s document to conduct trials of those statesman responsible for waging crime of aggression. The current approach of the UK government is to derogate from the ICC’s most important provision which has been accepted by most states who have ratified its statute.
The Monarch’s prerogative as a common law right that allows the Executive to declare war on a state is seen by many as an anachronism. Many argue for a War Powers Act to provide a basis for the Prime Minister to obtain Parliament's approval before ordering troops into battle in wars in other countries. Such an instrument would restrain the acts of the Executive allowing for more probity and transparency in the reasons advanced for conducting military campaigns abroad. It will be viewed with some astonishment that the lessons of the Iraq invasion were not learnt in proceeding with the attack on Syria. In my view, the investigation which showed the fallacy of the reasons for the Iraq war on the pretext of WMDs now raises equally serious questions around the pretext of humanitarian intervention for the Syrian strike.
Contributor Zia Akhtar, LLB (Lon) LLM (Lon) Gray’s Inn
Zia is a member of Gray’s Inn and an alumni of the University of London. His interests include criminal law, regulatory law, immigration law, media law, EU law and judicial review in the Commonwealth. An advocate of indigenous rights, he has published several doctrinal papers on the subject.
The UK government has been accused of breaching international law in carrying out air strikes on Syria in the wake of the chemical attack on 7 April 2018 in the Dhouma suburb of Damascus. The UK launched the missile attack in consort with the US and France on Syrian facilities and research centres before the Organisation for the Prohibition of Chemical Weapons, the implementing body for the Chemical Weapons Convention, was given the opportunity to conduct an investigation and apportion liability. In my view, it is reminiscent of the invasion of Iraq in 2003 on the pretext of neutralising weapons of mass destruction (WMDs), which Hans Blix, head of the UN Monitoring, Verification and Inspection Commission had already indicated never existed. The legal defence is embedded in the non-justiciability of the courts to hear claims of a war of aggression.
The government presented legal justifications for the attack based upon the breach of ‘customary international law prohibition on the use of chemical weapons’ which amounts ‘to a war crime and a crime against humanity’ and allows the UK ‘under international law, on an exceptional basis, to take measures in order to alleviate overwhelming humanitarian suffering’ (Policy paper: Syria action – the government legal position, 14 April 2018). This is predisposed to ‘three conditions being met which are: (i) convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief; (ii) it must be objectively clear that there is no practicable alternative to the use of force if lives are to be saved; and that (iii) the proposed use of force must be necessary and proportionate to the aim of relief of humanitarian suffering and must be strictly limited in time and in scope to this aim’. Accordingly, the ‘circumstances of this military action met the requirements of humanitarian intervention’.
The issues that surface in this case are first that the strikes on Syria did not have parliamentary approval and secondly, it was carried out without authorisation from the UN Security Council. There had been no recourse to diplomacy and UN Security General António Guterres said that states had an ‘obligation, particularly in peace and security matters, to act consistently with the Charter of the United Nations and with international law in general. If the law is ignored, it is undermined’ (SC/13296, 14 April 2018). Article 2(4) of the UN Charter prohibits the ‘threat or use of force’ and calls on all ‘Members to respect the sovereignty, territorial integrity and political independence of other States’.
The only action that is permitted under the framework of the UN is by recourse to Chapter VII (Action with respect to threats to the peace, breaches of the peace, and acts of aggression). It states categorically in Article 39 that it is the Security Council which shall determine the existence of when there will be a breach. The only exception is provided by Article 51 which allows the ‘inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security’. In the instance of the attack on Syria, or the invasion of Iraq, there was no threat to the UK or US, who were the participant states.
The Report of the Iraq Inquiry (‘Chilcot report’) that issued its findings on 6 July 2016 challenged the actions of the British political leadership at the time of the attack on Iraq. It was found to have ‘undermined the authority of the UN Security Council’ and the reasons for going into war were deemed to be ‘far from satisfactory’ and ‘the UN route was never exhausted’. It stated that ‘judgments about the severity of the threat posed by Iraq’s WMDs were presented with a certainty that was not justified’. The issue of complicity could ‘of course, only be resolved by a properly constituted and internationally recognised Court’. The issue was whether there could be a prosecution for war crimes and for a war of aggression in the English courts. This matter is vital in understanding the scope of the Executive in conducting a war launched on a unilateral basis without authority of the Security Council. The Chilcot report served as a basis for litigation and was raised in judicial review proceedings served to indict Tony Blair and his immediate colleagues on the charge of a crime of aggression.
In R (on the application of Al Rabbat) v Westminster Magistrates’ Court (HM Attorney General intervening) [2017] EWHC 1969 (Admin), the applicant argued that the crime of aggression should be considered as part of the domestic common law, having been incorporated at least since 1945 when the International Military Tribunal (IMT) at Nuremburg prosecuted Nazi war criminals in the aftermath of World War II.
The applicant argued that Article 6 (a) of the Charter for the IMT at Nuremberg had given that Tribunal jurisdiction over: ‘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’. He quoted the Attorney General, Sir Hartley Shawcross QC, who representing the UK had underlined that the Article was ‘merely declaratory of an existing principle of international law’. It was clearly established from this point that the ‘crime of aggression’ was recognised under international law and of ‘sufficient certainty that prosecutions before an international tribunal could be brought’. The basis for the prosecution was, in his view, the Chilcot report which had established the grounds for the parties to be ‘tried before a court so that they could be held to account for their criminal breach of the law’.
The Lord Chief Justice, Lord Thomas of Cwmgiedd and Mr Justice Ouseley held that there was no crime of aggression in English law under which the former prime minister could be charged. (R v Knuller [1973] AC 435 had established that a new criminal offence could only be created by an Act of Parliament and no new offence could be created by the common law (at 17).) The High Court concluded that the domestic courts of England and Wales could not depart from the clear principle that it was for Parliament to make such conduct criminal under domestic law.
The court followed the decision in R v Jones (Margaret) [2007] 1 AC 136 where the House of Lords acknowledged that aggression was a crime under international law but had not been adopted in domestic criminal law and required a statute to incorporate it. Lord Bingham ruled ‘when giving effect to the Rome Statute by the International Criminal Court Act 2001, Parliament had not included the “crime of aggression” in the offences created under the act’. ‘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 the subject of 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.’ Lord Hoffman concurred with his Lordship and refused to accept the defence of trespass on military premises as preventing an illegal war of aggression. He ruled: ‘The decision to go to war, whether one thinks it was right or wrong, fell squarely within the discretionary powers of the Crown to defend the realm and conduct its foreign affairs’. His Lordship asserted that the charge of aggressive war against the executive would presume commission of crime by the state which would ‘involve a decision in the courts on the culpability in going to war, but there were well established rules that courts would be slow to review the exercise of prerogative powers in relation to the conduct of foreign affairs and deployment of armed forces’.
The International Criminal Court (ICC) established the definition of the crime of aggression at the Kampala Conference in 2010 and its jurisdiction over which was activated after 1 January 2017 (Article 121, para 5) by consensus or at least a two-thirds majority. The Assembly of State Parties which concurred in achieving this amendment is restricted by the court’s jurisdiction in relation to those it can indict for this offence. The ICC is able to exercise its jurisdiction over the crime of aggression where an ICC member state brings forth a referral to the court, an ICC prosecutor initiates an investigation propiu motu, or UN Security Council makes a reference to the court. However, the UK has already issued a position paper that would obstruct any such indictments being issued against its officers of committing the crime of aggression. The Foreign Office stated it ‘required clarity on the ICC’s jurisdiction prior to any decision to include the crime of aggression within the court’s remit’.
This approach has led to criticism, suggesting the intention is to enforce immunity of the officers by preventing due process. ‘What these states really want is assurance that there will be no jurisdiction over their nationals in the absence of their ratification, and without having to resort to an opt-out declaration,’ wrote Stefan Barriga (‘The Scope of ICC jurisdiction over the crime of aggression: a different perspective’, Blog of the European Journal of International Law, 29 September 2017). Dapo Akande views the stance of the UK, and other recalcitrant states such as France, Japan, Canada, Norway and Colombia, as presenting an ‘alternate interpretation of the Kampala amendments’ that ‘significantly limits the reach of the ICC in respect to the crime of aggression and will, perhaps, make it more reliant upon Security Council referrals of acts of aggression’ (‘International Criminal Court Gets Jurisdiction Over the Crime of Aggression’, Blog of the European Journal of International Law, 15 December 2017).
This implies that the countries on the Security Council could veto the referrals of their officers from being indicted before the ICC. It means they will not have to face trial if the ratifying country has not agreed to be party to the ICC’s document to conduct trials of those statesman responsible for waging crime of aggression. The current approach of the UK government is to derogate from the ICC’s most important provision which has been accepted by most states who have ratified its statute.
The Monarch’s prerogative as a common law right that allows the Executive to declare war on a state is seen by many as an anachronism. Many argue for a War Powers Act to provide a basis for the Prime Minister to obtain Parliament's approval before ordering troops into battle in wars in other countries. Such an instrument would restrain the acts of the Executive allowing for more probity and transparency in the reasons advanced for conducting military campaigns abroad. It will be viewed with some astonishment that the lessons of the Iraq invasion were not learnt in proceeding with the attack on Syria. In my view, the investigation which showed the fallacy of the reasons for the Iraq war on the pretext of WMDs now raises equally serious questions around the pretext of humanitarian intervention for the Syrian strike.
Contributor Zia Akhtar, LLB (Lon) LLM (Lon) Gray’s Inn
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