Al Rabbat v Westminster Magistrates' Court, Court of Appeal - Administrative Court, July 31, 2017, [2017] EWHC 1969 (Admin)

Issuing Organization:Administrative Court
Actores:Al Rabbat v Westminster Magistrates' Court
Resolution Date:July 31, 2017
 
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Neutral Citation Number: [2017] EWHC 1969 (Admin)

Case No: CO/1025/2017

IN THE HIGH COURT OF JUSTICE

DIVISIONAL COURT OF THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 31/07/2017

Before:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

and

MR JUSTICE OUSELEY

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Between:

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Michael Mansfield QC, Antonia Benfield, and Abdul-Haq Al-Ani (instructed by Imran Khan and Kate Ellis of Imran Khan and Partners) for the Claimant

James Eadie QC and Melanie Cumberland for the Intervener

Hearing date: 5 July 2017

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Judgment Approved

Lord Thomas of Cwmgiedd, CJ:

  1. This is the judgment of the court.

    The issue

  2. The application before us made by Mr Mansfield QC on behalf of the claimant, General Abdulwaheed Shannan Al Rabbat, is an application for permission to bring proceedings for judicial review of the decision of District Judge Snow at the City of Westminster Magistrates' Court on 24 November 2016. His decision was a refusal to issue a summons for a private prosecution of the Interested Parties in respect of what is contended to be the crime of aggression under the law of England and Wales. That crime is said to have been committed by the Interested Parties through their participation in the decision made in 2003 to invade Iraq and overthrow the regime of President Saddam Hussein.

  3. On 29 March 2006 the House of Lords unanimously decided in R v Jones (Margaret) [2007] 1 AC 136, in the context of the invasion of Iraq, that although there was a crime of aggression under customary international law, there was no such crime as the crime of aggression under the law of England and Wales. The leading judgments were given by Lord Bingham and Lord Hoffmann. This court is bound by that decision.

  4. It is contended on behalf of the claimant that the House of Lords was in error and that there is a crime of aggression under the law of England and Wales. Although it is accepted that we are bound by that decision, it is contended we should grant permission so that the Supreme Court, under the Practice Statement of 26 July 1966 [1966] 1 WLR 1234, can review the decision in Jones in the circumstances that now pertain and depart from it.

  5. If we were to grant permission, when, as is inevitable, the claim failed in this court, it is contended we should certify a general point of law of public importance as to the correctness of the decision in Jones.

  6. HM Attorney General, whom we allowed to intervene, contended we should refuse permission as the claim was ``hopeless''; the crime of aggression was unknown to the law of England and Wales; there was no arguable basis for supposing that the Supreme Court would depart from the decision in Jones.

  7. The Interested Parties have taken no part in this application so far. They may seek to take part in the event permission were granted.

    The submissions of the claimant

  8. The submissions of the claimant advanced by Mr Mansfield QC had six principal limbs:

    i) Article 6 (a) of the Charter for the International Military Tribunal 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;''

    As the then Attorney General, Sir Hartley Shawcross QC, had made clear in his address to the Tribunal, that Article was merely declaratory of an existing principle of international law. From that time it was clearly established that the crime of aggression was a crime under international law and of sufficient certainty that prosecutions before an international tribunal could be brought.

    ii) The report of the inquiry into the invasion of Iraq conducted under the chairmanship of Sir John Chilcot published on 6 July 2016 showed...

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