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WORLD CITIZEN LETTER: 535
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WCL 535 September 2006
Questions of law and justice for British courts
The recently reported denunciation by the British Lord Chancellor of the US prison at Guantanamo Bay is welcome, but it leaves the minister and his government open to certain important questions. If they see the Geneva conventions as fundamental and accept, as the British government has always asserted, the obligations of international law, why does he not go further? Why does the British government not seek to have all disputed questions of international law - which are argued about at the UN and elsewhere - referred to the International Court of Justice, where they could be considered in a proper legal context instead of being treated as political weapons in intra-state arguments?
This question becomes even more pertinent when it is considered in conjunction with a recent English court case. Two defendants, one a former magistrate and Conservative councillor, were accused. They admitted causing damage to an American aircraft on a RAF base, and denied being guilty of any offence. Instead they claimed to have been acting in order to prevent war-crimes; those crimes were committed afterwards in the 'Shock and Awe' terrorist bombing of Iraq that came with the American and British invasion of the country.
If the British government still believes in its rectitude there may be more to come for its action. A committed individual supporter of INLAP (the Institute for Law, Accountability and Peace) has refused to pay tax. He is being charged in a Crown Court and his defence is that it is illegal to pay any tax that, even in part, is going to be used in payment for certain war crimes. Essentially his case is that Britain has incorporated into English and Scottish law the prohibition on assisting in any way actions which lead to the commission of genocide. That is the burden of the Nuremberg principles accepted in 1950 as valid international law.
This defence is not simple: it involves a serious study of those enactments into British laws which have taken place since those principles were accepted. Most notably, the Rome Statutes of the International Criminal Court introduced the three universal crimes of genocide, a crime against humanity and war crimes. By this month 100 states (including Britain) had ratified the treaty ceding ultimate jurisdiction over these crimes to that court in The Hague.
However, until the present, no court has been willing to consider this defence. More seriously, it has proved impossible to persuade judges to accept that this defence, if unacceptable to English courts, should go for a judicial review, which is the accepted way of having determined various moot legal points of importance. The courts have said that the defence is no justifiable. Yet a detailed consideration (which has been stated and circulated) suggests that there is a prima facie case for the defence which is steadfastly being ignored, in spite of justice (and law). If our member is deprived even of a hearing of his defence, because it is novel (and perhaps devastating for a government engaged in illegal international action), there will be further consequences, some perhaps unforeseeable.
So we return to our Lord Chancellor. If he, in common with the Attorney-General, considers that the 'anomaly' of an illegal prison camp in Guantanamo is an 'affront to democracy' he should also be asked to explain why so important a question as the application of English statute law cannot be considered in court in a case involving the liberty and property of an English citizen. Historically, English citizens have pioneered many crucial reforms through the application of law to social and other problems. Here is a case that can be seen of momentous importance for its application to world citizens through its potential effects on the waging of war.
John Roberts
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