31st July 2017
You will read – on social media and elsewhere – that today the High Court decided to not prosecute Tony Blair (and others) for war crimes.
The High Court did not make that decision.
First, the High Court was not being asked to make a decision on whether Blair should be prosecuted. That would be a decision for a criminal court – to permit a private prosecution.
The decision today was about whether a decision not to permit such a prosecution was lawfully open to the criminal court. The High Court held that it was not open to a criminal court to give that permission. So: one step away from a decision to allow any prosecution.
Second, the High Court was bound by a 2006 decision of the House of Lords (the predecessor to the current Supreme Court). So: it was in 2006 that the decision was made that the waging of aggressive war was not a domestic crime, and not today. All the High Court did today was follow a decision more than ten years’ old.
Today the High Court made neither a decision to not prosecute for war crimes nor new law. The High Court instead said somebody else could not make the decision, and did so by applying old law.
Read the judgment for yourself.
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Comments are pre-moderated.
It is often tough to fit our own personal values & knowledge into such public issues. The cited court decision seems to generally reflect global legal opinion, although the Germans wanted to prosecute one of their officers for dereliction of duty in the Middle East. Apparently they have no Military Code of Justice, so they were stuck.
The civilian prosecutor made a fool of himself under the equivalent American Military Code. Of course, the prosecutor had no military experience, certainly not in combat, as best I am aware. He had no applicable case law to fall back upon. Wisely, the officer was not convicted, as the case certainly would have been over-turned by higher courts.
Convicting the previous PM of a grievance offense would be equivalent of convicting a long series of American Presidents & British Kings/Queens of the same . Not an easy situation.
It is a shame that the Court did not set aside the 2006 decision as being wrong in law: the crime of aggression is an international crime of long-standing, prosecuted at Nuremburg as Crimes against Peace, and described then as more weighty than genocide.
The judgment deals with that point – it is at the link.
Does this judgement not, then, *in theory* open the way for a prosecution under customary international law (as the matter cannot be addressed in the English courts)?
I say “in theory” because, as far as I (a non-lawyer) know, although the ICC has been established for some years it does not yet have ratified competence over this crime. If this is the case, the question we need to ask is how such a crime *can* be prosecuted, given that such were prosecuted historically —e.g. Nuremburg— but are not yet justiciable at the ICC: surely the answer cannot be, “Oops, slipped though an inconvenient gap!”
ICJ?
Hi, Toby, I agree that aggression–entering another nation by force of arms generally–is an international crime. It is just a matter who can prosecute it.
For example, what if Libya prosecutes both the UK & US for aggression. We might laugh, but the Muslim world might by & large back them up. That’s why it seems appropriate to use the International Court of Justice or a special tribunal like Nurenberg, it seems to me.
How could the High Court set aside a HoL decision?
They can’t.
The Supreme Court (having replaced the House of Lords as the top court in the land) can.
What the High Court can (and did) say was that there was no chance in hell of the HoL decision being set aside by the SC, ergo there was no point them allowing a pointless judicial review to go ahead.
Tech Support frequently wish that folks would RTFM
In law reporting/blogging, that becomes RTFJ