UK House of Lords Decides on the Crime of Aggression

The UK House of Lords yesterday gave judgment in a very unusual case, which had their Lordships delve deep into international law, raising as it did the question whether there was a crime of aggression in international and English law: R v. Jones (Margaret) [2006] UKHL 16.

First, the facts of the case(s): shortly before hostilities began in Iraq in 2003, the appellants entered bases of the Royal Air Force (RAF Fairford) and other military installations and committed acts of criminal damage there, intending to disrupt preparations for a war which they felt was illegal. All were consequently charged with several offences, among them criminal damage, conspiracy to cause criminal damage, aggravated trespass and attempted arson.
Their defence was based on provisions in the relevant criminal enactments and stated that the appellants had been acting to prevent a crime, namely the international crime of aggression that was about to be committed by the United Kingdom and the United States of America, as well as their respective organs.
The trials on these charges have not yet taken place, but the question of whether there was such a crime under international and English law, and the question of its justiciability, went through the hierarchy of the English courts as a preliminary question, to be settled before the trial proper could commence.

The House of Lords was therefore required to decide whether the crime of aggression existed in English law. Several routes by which this could have happened were put to the House, all of which proceeded on the assumption that there was such a crime under customary international law.

Basing itself to some extent on the Nuremberg Charter and on the judgment of the International Military Tribunal at Nuremberg, the House clearly held that the crime of aggression existed in customary international law.
In doing so, the Law Lords did note, of course, that the crime of aggression was and remained the subject of very considerable debate and disagreement in the international community, and that the International Criminal Court is not presently competent to deal with it (Article 5(2) of the Rome Statute provides that the ICC shall not exercise its jurisdiction over the crime until it has been defined), but this was not decisive.
Lord Bingham of Cornhill stated in this regard:

‘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.’

Lord Hoffmann made the same point when he said:

‘It is true that there is at present no consensus about the circumstances in which the International Criminal Court should exercise its jurisdiction to try the crime of aggression and in particular whether the imprimatur of the Security Council should have to appear on the indictment. But I think that upon analysis it will be found that these disputes are not about the definition of the crime but about the circumstances in which the International Criminal Court (as opposed to some domestic or ad hoc international tribunal, such as the International Military Tribunal at Nuremberg) should try someone for committing it. Of course the definition of a crime so recent and so rarely punished will have uncertainties. But that is true of other crimes as well. If the core elements of the crime are certain enough to have secured convictions at Nuremberg, or to enable everyone to agree that it was committed by the Iraqi invasion of Kuwait, then it is in my opinion sufficiently defined to be a crime, whether in international or domestic law.’

The approach is therefore that a crime is not ill-defined in its entirety and therefore incapable of supporting charges, convictions and sentences if only parts of it remain unclear. The core of the crime remains well-defined and an act falling under it remains criminal, no matter what the case may be in other situations which may fall under disputed parts of the definition. A similar approach appears to have been taken by the House of Lords to a criminal offence at common law: R v. Rimmington [2005] UKHL 63, [2005] 3 WLR 982.

The conclusion that the crime of aggression existed under customary international law (also supported by Lord Mance at para. 99) was not, however, decisive. For the defences raised by the appellants to be arguable, the crime averted by their offences had to be one under English law.

It was, at least broadly, accepted that customary international law formed part of English law (Lord Bingham, at para. 11, saw some force in the submission that international law was not so much part, as one of the sources of English law; the matter did not arise for decision). However, it did not follow that customary international law could therefore automatically, i.e. without the need for any domestic enactment, create new criminal offences. This proposition was unsupported by authority (Lord Bingham, at para. 23), contradicted by the previous practice of transposing offences under international law into English law by means of a statute (Lord Bingham at para. 28), and it would create grave problems of legal certainty (Lord Bingham, at para. 23). Also, the rule by which questions of the legality of acts of a foreign state would in principle be non-justiciable (see Republic of Ecuador v. Occidental Exploration and Production Co. [2005] EWCA Civ 1116, [2006] 2 WLR 70, as recent and exhaustive authority) was another factor suggesting that the crime of aggression could not be considered as a crime under English law (Lord Bingham, at para. 30; Lord Hoffmann, at paras. 63-67, Lord Mance, para. 103).

The other arguments brought forward by the appellants also failed: the defences relied on by the appellants could not be interpreted to extend also to the prevention of crimes against international law, and English law could not be shown to itself know of any crime of aggression. As to the latter point, it is, of course, to be noted that English courts do not retain any power to create new offences: Knuller (Publishing, Printing and Promotions) Ltd v. Director of Public Prosecutions [1973] AC 435; see also Lord Hoffmann, at paras. 60-62 of his speech in Jones).

For all these reasons, the challenge by the appellants failed, and the defences concerned will not avail them at their trials (nor would they have been available if there had been any English crime of aggression, as the right of self-help reflected in the defences concerned was also held to be of a subsidiary nature; recourse to help from the police or the courts would, wherever possible, take precedence: Lord Hoffmann, at paras. 73-88).
What is perhaps more, the appellants have also failed in their attempt to have the House of Lords (or, for that matter, the other English courts) pronounce on the legality or otherwise of the Iraq war. It may be doubted whether this was their principal aim, but it will certainly have played a role in their raising this particular defence.

However, the House clearly held that a crime of aggression existed, if not in English law, then nevertheless certainly in international law. This should be welcomed.