The Law Lords are now debating if there is a defence open to individuals who break the law in order to prevent a greater 'crime of aggression, and if UK courts have the authority to consider foreign affairs and defence issues. This landmark hearing is borne out of the appeals of 19 people, who took direct action to try and prevent the Iraq war.
These actions were centred upon R.A.F / U.S.A.F Fairford in Gloucestershire, U.K, where American B-52 bombers were waiting to launch the attack on Iraq that would begin the Iraq war in March 2003. The following compilation of latest reports and press releases gives good background to each set of cases, and the current state of the debate.
…………………………………………………….
HEARINGS: Hearings began on Mon February 20. The court will sit for four days, and then reconvene on Mon 27 as necessary. Hearings will start at 11am on Mon 20th and at 10.30 am each day thereafter.
PLACE: Committee Rooms 3A/4B the House of Lords. Anyone wishing to attend the hearing will have to enter through St. Stephen's entrance, on Parliament Road in the Houses of Parliament building.
…………………………………………………….
LATEST UPDATES AND REPORTS:
1.) 23/02/06 : ** Court 'Should Probe War Decision' **
The legality of the Iraq war should be able to be questioned in court and not given the immunity of being an "act of state", the Law Lords have heard.
2. ) 22/02/06 : ** Anarchy Warning On Protest Claim **
"Anarchy" could prevail if protesters are allowed to argue that they were right to take action to prevent the Iraq war, Law Lords hear.
3. ) 20/02/06 : ** Law Lords To Rule On Activists' Direct Action To Stop 'Illegal' Iraq War **
Guardian Report. A good brief background to each case and legal issues.
4. ) 16/02/06 : ** Should Protestors Be Convicted For Trying To Prevent An Illegal War?
Greenpeace Press Release. More detailed account of each case and legal issues.
**********************************************************
REPORT NUMBER ONE : 23/02/06
**********************************************************
** COURT’S SHOULD PROBE WAR DECISION **
The legality of the Iraq war should be able to be questioned in court and not given the immunity of being an "act of state", the Law Lords have heard.
“It was not an act of Parliament, it is a discussion of Parliament” Keir Starmer QC
SOURCE:
http://news.bbc.co.uk/go/em/fr/-/1/hi/uk_politics/4743464.stm
The legality of the Iraq war should be able to be questioned in court and not given the immunity of being an "act of state", the Law Lords have heard.
Lower courts have said that the legality of the Iraq war is a political matter and not for the courts.
But Keir Starmer QC, for five anti-war protesters, said the 2003 Commons' resolution approving military action was "no more than a vote... it was not an act of Parliament, it was a discussion of Parliament".
He cited the world community's reaction to the crimes of General Pinochet, and asked why the Iraq war decision should "be an act of state which the court should not inquire into".
He was speaking at the end of a four-day hearing before five Law Lords - Lord Hoffman, Lord Rodger, Lord Carswell, Lord Mance and Lord Bingham. A judgement is expected in about six weeks.
The Law Lords have been hearing appeals by 20 anti-war protesters. Fourteen say they should not have been convicted of aggravated trespass near Southampton docks because they were trying to stop an "illegal war".
Another protester is using the same argument after she was convicted of aggravated burglary for entering RAF Fairford in Gloucestershire.
A further five, who are alleged to have tried to immobilise American B52 bombers at Fairford, are due to stand trial separately at Bristol Crown Court later this year - and their defence will depend on the House of Lords hearing.
The Law Lords are being asked to decide whether the activists should be allowed a defence that they committed a crime to prevent what they regarded as an even greater "crime of aggression".
'Constitutionally unnecessary'
The group of 20 say that if you can establish an offence is a crime under international law, it should also be an offence under section three of the Criminal Law Act 1967.
Rabinder Singh QC, speaking collectively for defence counsel for 15 of the group, said the defendants - convicted for the incidents relating to Southampton docks and RAF Fairford - did not have a fair trial.
He said that the activities his clients had sought to disrupt were "an integral part of a crime of aggression".
Mr Singh said the Cabinet was accountable to Parliament and the courts for the legality of its action, adding that "the notion of the Crown as being immune from accountability has gone".
Earlier in the case the Law Lords were warned that "anarchy" could prevail if anti-war protesters were allowed to argue that they were right to take action to prevent the Iraq war
David Perry, for the Crown, said on Wednesday that if this was the case there would be little to stop foreign belligerent states from using the same argument.
Mr Perry told the Law Lords it was not their role to "make law... all the more so where in this case there would be potential implications for the foreign relations of the UK".
He added: "Self help remedies must be controlled because they can degenerate into anarchy."
The Court of Appeal has earlier said that acting to prevent the commission of a crime could be considered as a defence, but added that in reality in cases like this "they were protests and were not attempts to prevent crimes".
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REPORT NUMBER TWO : 22/02/06
**********************************************************
** ANARCHY WARNING ON PROTEST CLAIM **
"Anarchy" could prevail if protesters are allowed to argue that they were right to take action to prevent the Iraq war, Law Lords hear.
SOURCE : http://news.bbc.co.uk/go/em/fr/-/1/hi/uk_politics/4739946.stm
Anarchy warning on protest claim
Some protesters occupied tanks at a military port in Southampton
"Anarchy" could prevail if anti-war protesters are allowed to argue that they were right to take action to prevent the Iraq war, Law Lords heard.
David Perry, for the Crown, said if this was the case there would be little to stop foreign belligerent states from using the same argument.
But Keir Starmer QC, for five of the activists, said the rule of law should apply irrespective of the consequences.
The Law Lords are hearing appeals by 20 anti-war protesters.
Valid defence?
Fourteen say they should not have been convicted of aggravated trespass near Southampton docks because they were trying to stop an "illegal war".
Another protester is using the same argument after she was convicted of aggravated burglary for entering RAF Fairford in Gloucestershire.
Self help remedies must be controlled because they can degenerate into anarchy David Perry
A further five, who are alleged to have tried to immobilise American B52 bombers at Fairford, are due to stand trial separately at Bristol Crown Court later this year - and their defence will depend on the House of Lords hearing.
The Law Lords are being asked to decide whether a valid defence is available to activists who allegedly broke the law and committed a crime to prevent what they regarded as an even greater "crime of aggression".
The group of 20 say that if you can establish an offence is a crime under international law, it should also be an offence under section three of the Criminal Law Act 1967.
But Mr Perry told the Law Lords it was not their role to "make law".
Implications
"We would submit that the power to create laws is no longer a matter, we would say respectfully, for your lordships because there is no authority or mandate for a court to create a law," he said.
"All the more so where in this case there would be potential implications for the foreign relations of the UK."
He said it was "not just Greenpeace supporters" that may act on anything the Law Lords say. "Why should not foreign belligerent states use the crime and defence?"
Mr Perry added: "Self help remedies must be controlled because they can degenerate into anarchy."
But Mr Starmer argued that some of the arguments being raised by the Crown had nothing to do with this particular case.
'Political matter'?
"The judges aren't creating law in any shape or form.
"It is whether the long standing principle, that an offence under customary international law is an offence under common law, is ever applied."
In earlier hearings, judges have ruled that the courts cannot deal with the legality of the war, which was considered to be a political matter.
The Court of Appeal said that acting to prevent the commission of a crime could be considered as a defence, but added that in reality in cases like this "they were protests and were not attempts to prevent crimes".
Rabinder Singh QC, defending 15 of the group, told the Law Lords, headed by Lord Bingham, that the protesters were being wrongly deprived of a defence which would have questioned the legality of the war and which could have resulted in their acquittals.
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REPORT NUMBER THREE : 20/02/06
**********************************************************
LAW LORDS TO RULE ON ACTIVISTS’ DIRECT ACTION TO STOP ‘ILLEGAL’ IRAQ WAR.
· Peace campaigners have their day in highest court
· Landmark appeal tests law over 'crime of aggression'
SOURCE : http://politics.guardian.co.uk/commons/story/0,,1713624,00.html
Clare Dyer, legal editor
Monday February 20, 2006
The Guardian
The crime of aggression, the waging of an illegal war, was labelled "the supreme war crime" at Nuremberg. Most international lawyers believe the Iraq war was unlawful.
"An unlawful use of force on such a scale amounts to the crime of aggression," wrote Elizabeth Wilmshurst, the Foreign Office's deputy chief legal adviser, when she resigned on the eve of the invasion.
But can peace activists who tried to stop bombers being refuelled or armoured vehicles being loaded on to ships argue in court that their acts were lawful because they were trying to stop a greater crime - the crime of aggression? Is the issue of their right to mount such a defence even open to a British court to decide?
Those questions are at the heart of a landmark appeal which goes to the House of Lords today, three years after the fraught weeks when Britain and the US were marshalling their troops and anti-war protesters were desperately trying to put a spoke in the war machine's wheels. Twenty of those activists will take their cases to Britain's highest court today.
In a week-long hearing, the five law lords will not be asked to decide whether the war was lawful, but the arguments will come close enough to discomfit the government.
When the issue came before the court of appeal in July 2004 the judges were handed an extraordinary witness statement 10 minutes before the hearing began. From Sir Michael Jay, permanent secretary to the Foreign Office, and authorised by the foreign secretary, Jack Straw, it asked the judges to refrain from ruling on the legality of the war for fear of "giving comfort to terrorists, endangering the lives of Britons in Iraq and harming foreign relations".
In February 2003, six weeks before the start of the war, 14 crew members of the Greenpeace International ship Rainbow Warrior went ashore at the Ministry of Defence's Sea Mounting Base at Marchwood on Southampton Water.
They chained themselves to Scimitar armoured fighting vehicles which were awaiting loading on ships for transport to Kuwait. The 14 were later convicted of aggravated trespass for obstructing a lawful activity - the port operations - and four were found guilty of criminal damage.
A month after the Greenpeace 14 took their action Valerie Swain cut her way through the fence at RAF Fairford in Gloucestershire, where United States bombers were being readied to take part in the "shock and awe" assault on Baghdad. Ms Swain was arrested before she could do any more, however she was convicted of aggravated trespass and criminal damage.
A week later, on March 20 2003, a week before the war started, five other peace activists broke through the perimeter fence at Fairford. Two of them, Margaret Jones and Paul Milling, disabled a fleet of bomb carriers and other support vehicles, causing damage put by the US military at more than £80,000.
The others were arrested before they could reach the bombers. The five are due to stand trial at Bristol crown court this year, their trials delayed by legal arguments over what defences are open to them. They argue that their actions were justified because they were trying to prevent the far greater crime of starting an unprovoked war.
Lower courts have so far denied them the defence, holding that attacking another country is a matter for international law and cannot be ruled on by a British court. Since the appeal court ruled against them, however, they can thank an unlikely advocate for giving a boost to their argument.
In his confidential advice to the prime minister dated March 7 2003, but made public only last April, the attorney general, Lord Goldsmith, stated: "Aggression is a crime under customary international law which automatically forms part of domestic law. It might therefore be argued that international aggression is a crime recognised by the common law which can be prosecuted in the UK courts."
**********************************************************
REPORT NUMBER FOUR : 16/02/06
**********************************************************
**SHOULD PROTESTORS BE CONVICTED FOR TRYING TO PREVENT AN ILLEGAL WAR? **
Law Lords to consider cases of anti war protestors.
SOURCE : http://www.greenpeace.org.uk/contentlookup.cfm?CFID=2304783&CFTOKEN=93614806&ucidparam=20060216162130&MenuPoint=D-J
Last edited: 16-02-2006
DATE/TIME: The hearing begins on Monday February 20. The court will sit for four days, and then reconvene on Monday 27 as necessary. Hearings will start at 11am on Monday 20th and at 10.30 am each day thereafter.
PLACE: Committee Rooms 3A/4B the House of Lords. Anyone wishing to attend the hearing will have to enter through St. Stephen's entrance, on Parliament Road in the Houses of Parliament building.
WHAT'S HAPPENING: The Law Lords will decide if there is a defence open to individuals who break the law in order to prevent a greater 'crime of aggression'. The landmark hearing will consider the appeals of nineteen people, who took direct action to try and prevent the Iraq war, including:
* The 'Marchwood 14' - Greenpeace volunteers who took part in a week
of action at Southampton docks in an attempt to stop or delay
military hardware leaving the country for Iraq, so that the all
important 'weather window' for the invasion would be missed (1).
* Margaret Jones & Paul Milling, Toby Olditch and Philip Pritchard
and Josh Richards - five people who entered the RAF Fairford base
and attempted to damage and immobilise American B52 bombers which
were later involved in the 'shock and awe' assault on Baghdad
(2).
* Valerie Swain - convicted for trying to enter the RAF Fairford
base (3).
The 14 Greenpeace volunteers and Valerie Swain have already been convicted. The trials of the other five are still pending. The outcome of the hearing will determine whether they have access to a full and complete defence when their cases are heard in Bristol Crown Court later this year.
The Greenpeace appellants legal team will be led by Rabinder Singh of Matrix Chambers and also include Vaughan Lowe - Professor of International Law at Oxford and Nick Grieff - International Law Professor at Bournemouth University.
Lord Bingham will chair the panel hearing the appeal, which also includes Lords Hoffman, Roger, Carswell, and Mance.
Greenpeace Executive Director Stephen Tindale said, "This case is crucial as it could help ensure that the UK is never again dragged into an illegal pre-emptive war, against UN wishes and based on dodgy intelligence".
"These people acted because they believed that the Iraq war was both illegal and morally wrong. The majority of international lawyers have since agreed the war was illegal. Yet our volunteers were prevented from arguing this in court and were effectively denied a fair trial.
"If we are to have a society where governments as well as individuals can be held accountable for their actions and the international rules of law are upheld, then it’s crucial that the right to this defence of preventing a crime of aggression is upheld".
Key legal points which will be considered by the Lords are:
1. Is the crime of aggression, defined and last used by the
International Military War crimes Tribunal at Nuremberg in
1945-6, and enshrined in UN law by the 1946 UN General Assembly, still
part of international law?
2. If a crime of aggression is illegal under international law is it
a crime in UK law? In his controversial legal advice the Attorney
General certainly believed so, he stated, "Aggression is a crime
under customary international law which automatically forms part
of domestic law".
3. Should UK courts have the authority to consider foreign affairs
and defence issues?
4. Were the Greenpeace defendants subjected to an unfair trial,
contrary to article 6 of the Convention on Human Rights, because
they were not allowed to argue issues which related to the
legality of the war?
*Editor's notes*
1. 'The Marchwood 14' - In February 2003 14 Greenpeace volunteers
occupied tanks at Marchwood military base in Southampton, from
where hardware and supplies were being sent to Iraq. The
occupation was part of a wider week of actions at Marchwood,
involving many other volunteers, which aimed to stop the build up
to war. Other actions included using the Greenpeace flagship the
Rainbow Warrior to blockade Marchwood military port and stop
military hardware leaving for the Gulf and boarding and
conducting a sit in on a military supply ship bound for the
Gulf with a cargo of military hardware.
The 14 Greenpeace protestors were convicted of aggravated
trespass on 16th February 2004. The Marchwood 14 are: Oliver Knowles of
Stamford Hill, London; Ashby Smith of San Francisco, USA; Laura
Yates of London; Natalie Duck of Peckham, London; Graham Thompson
of Romford, Essex; Helen Wallace of Buxton, Derbyshire; Janice
Harron of Donegal; Jim Footner of Shropshire; Rachel Murray of
Glasgow; Richard Watson of Burnley; Robin Oakley of Lancashire;
Belinda Fletcher; Ben Ayliffe of Highbury, London; Jens Loewe of
Germany.
2. Actions at RAF Fairford: In March 2003, Paul Milling, Margaret
Jones, Philip Pritchard, Toby Olditch and Josh Richards undertook
three, independent, actions, to try and prevent or delay the
take-off of American B-52 bombers from Fairford air force base in
Gloucestershire. These bombers were waiting to launch the attack
on Iraq that would begin the Iraq war. In the case of Milling and
Jones, the action involved disabling a fleet of bomb carriers and
other support vehicles used to supply the B-52 bombers. Olditch
and Pritchard were arrested inside RAF Fairford on their way to
the B52's. Josh Richards was arrested on his way into the base.
All five say they were justified in their actions, because they
aimed at preventing the commission of a far greater crime - that
of 'aggression', of starting an unprovoked war against another
country. Lower courts have so far denied them this defence
argument, saying that the alleged crime of attacking another
country is a matter for international law, which cannot be ruled
on in a British court. They will stand trial, separately, at
Bristol Crown Court later this year.
3. Valerie Swain - on the 9th March 2003 Valerie Swain cut a fence
at RAF Fairford in Gloucestershire and entered the base with the
intention of disrupting the loading of B52 aeroplanes destined to
take part in the bombing of Iraq and to disturb the preparations
for war. She was convicted of aggravated trespass.
For more information about the Marchwood case: call Greenpeace UK press office on 0207 865 8255.
Greenpeace media contact at Court during the trial: Louise Edge 07801 212993.
For more information about the various Fairford cases contact:
Margaret Jones on 0117 9466885 or Paul Milling on 07765 836150
Philip Pritchard and Toby Olditch at www.b52.org
or email
phil@rubbishmonsters.com .
For more information about the Valerie Swain case contact her on 029 20384384 or 07980 048928.
**************************************
END OF REPORTS
**************************************
…………………………………………………….
HEARINGS: Hearings began on Mon February 20. The court will sit for four days, and then reconvene on Mon 27 as necessary. Hearings will start at 11am on Mon 20th and at 10.30 am each day thereafter.
PLACE: Committee Rooms 3A/4B the House of Lords. Anyone wishing to attend the hearing will have to enter through St. Stephen's entrance, on Parliament Road in the Houses of Parliament building.
…………………………………………………….
LATEST UPDATES AND REPORTS:
1.) 23/02/06 : ** Court 'Should Probe War Decision' **
The legality of the Iraq war should be able to be questioned in court and not given the immunity of being an "act of state", the Law Lords have heard.
2. ) 22/02/06 : ** Anarchy Warning On Protest Claim **
"Anarchy" could prevail if protesters are allowed to argue that they were right to take action to prevent the Iraq war, Law Lords hear.
3. ) 20/02/06 : ** Law Lords To Rule On Activists' Direct Action To Stop 'Illegal' Iraq War **
Guardian Report. A good brief background to each case and legal issues.
4. ) 16/02/06 : ** Should Protestors Be Convicted For Trying To Prevent An Illegal War?
Greenpeace Press Release. More detailed account of each case and legal issues.
**********************************************************
REPORT NUMBER ONE : 23/02/06
**********************************************************
** COURT’S SHOULD PROBE WAR DECISION **
The legality of the Iraq war should be able to be questioned in court and not given the immunity of being an "act of state", the Law Lords have heard.
“It was not an act of Parliament, it is a discussion of Parliament” Keir Starmer QC
SOURCE:
http://news.bbc.co.uk/go/em/fr/-/1/hi/uk_politics/4743464.stm The legality of the Iraq war should be able to be questioned in court and not given the immunity of being an "act of state", the Law Lords have heard.
Lower courts have said that the legality of the Iraq war is a political matter and not for the courts.
But Keir Starmer QC, for five anti-war protesters, said the 2003 Commons' resolution approving military action was "no more than a vote... it was not an act of Parliament, it was a discussion of Parliament".
He cited the world community's reaction to the crimes of General Pinochet, and asked why the Iraq war decision should "be an act of state which the court should not inquire into".
He was speaking at the end of a four-day hearing before five Law Lords - Lord Hoffman, Lord Rodger, Lord Carswell, Lord Mance and Lord Bingham. A judgement is expected in about six weeks.
The Law Lords have been hearing appeals by 20 anti-war protesters. Fourteen say they should not have been convicted of aggravated trespass near Southampton docks because they were trying to stop an "illegal war".
Another protester is using the same argument after she was convicted of aggravated burglary for entering RAF Fairford in Gloucestershire.
A further five, who are alleged to have tried to immobilise American B52 bombers at Fairford, are due to stand trial separately at Bristol Crown Court later this year - and their defence will depend on the House of Lords hearing.
The Law Lords are being asked to decide whether the activists should be allowed a defence that they committed a crime to prevent what they regarded as an even greater "crime of aggression".
'Constitutionally unnecessary'
The group of 20 say that if you can establish an offence is a crime under international law, it should also be an offence under section three of the Criminal Law Act 1967.
Rabinder Singh QC, speaking collectively for defence counsel for 15 of the group, said the defendants - convicted for the incidents relating to Southampton docks and RAF Fairford - did not have a fair trial.
He said that the activities his clients had sought to disrupt were "an integral part of a crime of aggression".
Mr Singh said the Cabinet was accountable to Parliament and the courts for the legality of its action, adding that "the notion of the Crown as being immune from accountability has gone".
Earlier in the case the Law Lords were warned that "anarchy" could prevail if anti-war protesters were allowed to argue that they were right to take action to prevent the Iraq war
David Perry, for the Crown, said on Wednesday that if this was the case there would be little to stop foreign belligerent states from using the same argument.
Mr Perry told the Law Lords it was not their role to "make law... all the more so where in this case there would be potential implications for the foreign relations of the UK".
He added: "Self help remedies must be controlled because they can degenerate into anarchy."
The Court of Appeal has earlier said that acting to prevent the commission of a crime could be considered as a defence, but added that in reality in cases like this "they were protests and were not attempts to prevent crimes".
**********************************************************
REPORT NUMBER TWO : 22/02/06
**********************************************************
** ANARCHY WARNING ON PROTEST CLAIM **
"Anarchy" could prevail if protesters are allowed to argue that they were right to take action to prevent the Iraq war, Law Lords hear.
SOURCE :
http://news.bbc.co.uk/go/em/fr/-/1/hi/uk_politics/4739946.stm Anarchy warning on protest claim
Some protesters occupied tanks at a military port in Southampton
"Anarchy" could prevail if anti-war protesters are allowed to argue that they were right to take action to prevent the Iraq war, Law Lords heard.
David Perry, for the Crown, said if this was the case there would be little to stop foreign belligerent states from using the same argument.
But Keir Starmer QC, for five of the activists, said the rule of law should apply irrespective of the consequences.
The Law Lords are hearing appeals by 20 anti-war protesters.
Valid defence?
Fourteen say they should not have been convicted of aggravated trespass near Southampton docks because they were trying to stop an "illegal war".
Another protester is using the same argument after she was convicted of aggravated burglary for entering RAF Fairford in Gloucestershire.
Self help remedies must be controlled because they can degenerate into anarchy David Perry
A further five, who are alleged to have tried to immobilise American B52 bombers at Fairford, are due to stand trial separately at Bristol Crown Court later this year - and their defence will depend on the House of Lords hearing.
The Law Lords are being asked to decide whether a valid defence is available to activists who allegedly broke the law and committed a crime to prevent what they regarded as an even greater "crime of aggression".
The group of 20 say that if you can establish an offence is a crime under international law, it should also be an offence under section three of the Criminal Law Act 1967.
But Mr Perry told the Law Lords it was not their role to "make law".
Implications
"We would submit that the power to create laws is no longer a matter, we would say respectfully, for your lordships because there is no authority or mandate for a court to create a law," he said.
"All the more so where in this case there would be potential implications for the foreign relations of the UK."
He said it was "not just Greenpeace supporters" that may act on anything the Law Lords say. "Why should not foreign belligerent states use the crime and defence?"
Mr Perry added: "Self help remedies must be controlled because they can degenerate into anarchy."
But Mr Starmer argued that some of the arguments being raised by the Crown had nothing to do with this particular case.
'Political matter'?
"The judges aren't creating law in any shape or form.
"It is whether the long standing principle, that an offence under customary international law is an offence under common law, is ever applied."
In earlier hearings, judges have ruled that the courts cannot deal with the legality of the war, which was considered to be a political matter.
The Court of Appeal said that acting to prevent the commission of a crime could be considered as a defence, but added that in reality in cases like this "they were protests and were not attempts to prevent crimes".
Rabinder Singh QC, defending 15 of the group, told the Law Lords, headed by Lord Bingham, that the protesters were being wrongly deprived of a defence which would have questioned the legality of the war and which could have resulted in their acquittals.
**********************************************************
REPORT NUMBER THREE : 20/02/06
**********************************************************
LAW LORDS TO RULE ON ACTIVISTS’ DIRECT ACTION TO STOP ‘ILLEGAL’ IRAQ WAR.
· Peace campaigners have their day in highest court
· Landmark appeal tests law over 'crime of aggression'
SOURCE :
http://politics.guardian.co.uk/commons/story/0,,1713624,00.html Clare Dyer, legal editor
Monday February 20, 2006
The Guardian
The crime of aggression, the waging of an illegal war, was labelled "the supreme war crime" at Nuremberg. Most international lawyers believe the Iraq war was unlawful.
"An unlawful use of force on such a scale amounts to the crime of aggression," wrote Elizabeth Wilmshurst, the Foreign Office's deputy chief legal adviser, when she resigned on the eve of the invasion.
But can peace activists who tried to stop bombers being refuelled or armoured vehicles being loaded on to ships argue in court that their acts were lawful because they were trying to stop a greater crime - the crime of aggression? Is the issue of their right to mount such a defence even open to a British court to decide?
Those questions are at the heart of a landmark appeal which goes to the House of Lords today, three years after the fraught weeks when Britain and the US were marshalling their troops and anti-war protesters were desperately trying to put a spoke in the war machine's wheels. Twenty of those activists will take their cases to Britain's highest court today.
In a week-long hearing, the five law lords will not be asked to decide whether the war was lawful, but the arguments will come close enough to discomfit the government.
When the issue came before the court of appeal in July 2004 the judges were handed an extraordinary witness statement 10 minutes before the hearing began. From Sir Michael Jay, permanent secretary to the Foreign Office, and authorised by the foreign secretary, Jack Straw, it asked the judges to refrain from ruling on the legality of the war for fear of "giving comfort to terrorists, endangering the lives of Britons in Iraq and harming foreign relations".
In February 2003, six weeks before the start of the war, 14 crew members of the Greenpeace International ship Rainbow Warrior went ashore at the Ministry of Defence's Sea Mounting Base at Marchwood on Southampton Water.
They chained themselves to Scimitar armoured fighting vehicles which were awaiting loading on ships for transport to Kuwait. The 14 were later convicted of aggravated trespass for obstructing a lawful activity - the port operations - and four were found guilty of criminal damage.
A month after the Greenpeace 14 took their action Valerie Swain cut her way through the fence at RAF Fairford in Gloucestershire, where United States bombers were being readied to take part in the "shock and awe" assault on Baghdad. Ms Swain was arrested before she could do any more, however she was convicted of aggravated trespass and criminal damage.
A week later, on March 20 2003, a week before the war started, five other peace activists broke through the perimeter fence at Fairford. Two of them, Margaret Jones and Paul Milling, disabled a fleet of bomb carriers and other support vehicles, causing damage put by the US military at more than £80,000.
The others were arrested before they could reach the bombers. The five are due to stand trial at Bristol crown court this year, their trials delayed by legal arguments over what defences are open to them. They argue that their actions were justified because they were trying to prevent the far greater crime of starting an unprovoked war.
Lower courts have so far denied them the defence, holding that attacking another country is a matter for international law and cannot be ruled on by a British court. Since the appeal court ruled against them, however, they can thank an unlikely advocate for giving a boost to their argument.
In his confidential advice to the prime minister dated March 7 2003, but made public only last April, the attorney general, Lord Goldsmith, stated: "Aggression is a crime under customary international law which automatically forms part of domestic law. It might therefore be argued that international aggression is a crime recognised by the common law which can be prosecuted in the UK courts."
**********************************************************
REPORT NUMBER FOUR : 16/02/06
**********************************************************
**SHOULD PROTESTORS BE CONVICTED FOR TRYING TO PREVENT AN ILLEGAL WAR? **
Law Lords to consider cases of anti war protestors.
SOURCE :
http://www.greenpeace.org.uk/contentlookup.cfm?CFID=2304783&CFTOKEN=93614806&ucidparam=20060216162130&MenuPoint=D-J Last edited: 16-02-2006
DATE/TIME: The hearing begins on Monday February 20. The court will sit for four days, and then reconvene on Monday 27 as necessary. Hearings will start at 11am on Monday 20th and at 10.30 am each day thereafter.
PLACE: Committee Rooms 3A/4B the House of Lords. Anyone wishing to attend the hearing will have to enter through St. Stephen's entrance, on Parliament Road in the Houses of Parliament building.
WHAT'S HAPPENING: The Law Lords will decide if there is a defence open to individuals who break the law in order to prevent a greater 'crime of aggression'. The landmark hearing will consider the appeals of nineteen people, who took direct action to try and prevent the Iraq war, including:
* The 'Marchwood 14' - Greenpeace volunteers who took part in a week
of action at Southampton docks in an attempt to stop or delay
military hardware leaving the country for Iraq, so that the all
important 'weather window' for the invasion would be missed (1).
* Margaret Jones & Paul Milling, Toby Olditch and Philip Pritchard
and Josh Richards - five people who entered the RAF Fairford base
and attempted to damage and immobilise American B52 bombers which
were later involved in the 'shock and awe' assault on Baghdad
(2).
* Valerie Swain - convicted for trying to enter the RAF Fairford
base (3).
The 14 Greenpeace volunteers and Valerie Swain have already been convicted. The trials of the other five are still pending. The outcome of the hearing will determine whether they have access to a full and complete defence when their cases are heard in Bristol Crown Court later this year.
The Greenpeace appellants legal team will be led by Rabinder Singh of Matrix Chambers and also include Vaughan Lowe - Professor of International Law at Oxford and Nick Grieff - International Law Professor at Bournemouth University.
Lord Bingham will chair the panel hearing the appeal, which also includes Lords Hoffman, Roger, Carswell, and Mance.
Greenpeace Executive Director Stephen Tindale said, "This case is crucial as it could help ensure that the UK is never again dragged into an illegal pre-emptive war, against UN wishes and based on dodgy intelligence".
"These people acted because they believed that the Iraq war was both illegal and morally wrong. The majority of international lawyers have since agreed the war was illegal. Yet our volunteers were prevented from arguing this in court and were effectively denied a fair trial.
"If we are to have a society where governments as well as individuals can be held accountable for their actions and the international rules of law are upheld, then it’s crucial that the right to this defence of preventing a crime of aggression is upheld".
Key legal points which will be considered by the Lords are:
1. Is the crime of aggression, defined and last used by the
International Military War crimes Tribunal at Nuremberg in
1945-6, and enshrined in UN law by the 1946 UN General Assembly, still
part of international law?
2. If a crime of aggression is illegal under international law is it
a crime in UK law? In his controversial legal advice the Attorney
General certainly believed so, he stated, "Aggression is a crime
under customary international law which automatically forms part
of domestic law".
3. Should UK courts have the authority to consider foreign affairs
and defence issues?
4. Were the Greenpeace defendants subjected to an unfair trial,
contrary to article 6 of the Convention on Human Rights, because
they were not allowed to argue issues which related to the
legality of the war?
*Editor's notes*
1. 'The Marchwood 14' - In February 2003 14 Greenpeace volunteers
occupied tanks at Marchwood military base in Southampton, from
where hardware and supplies were being sent to Iraq. The
occupation was part of a wider week of actions at Marchwood,
involving many other volunteers, which aimed to stop the build up
to war. Other actions included using the Greenpeace flagship the
Rainbow Warrior to blockade Marchwood military port and stop
military hardware leaving for the Gulf and boarding and
conducting a sit in on a military supply ship bound for the
Gulf with a cargo of military hardware.
The 14 Greenpeace protestors were convicted of aggravated
trespass on 16th February 2004. The Marchwood 14 are: Oliver Knowles of
Stamford Hill, London; Ashby Smith of San Francisco, USA; Laura
Yates of London; Natalie Duck of Peckham, London; Graham Thompson
of Romford, Essex; Helen Wallace of Buxton, Derbyshire; Janice
Harron of Donegal; Jim Footner of Shropshire; Rachel Murray of
Glasgow; Richard Watson of Burnley; Robin Oakley of Lancashire;
Belinda Fletcher; Ben Ayliffe of Highbury, London; Jens Loewe of
Germany.
2. Actions at RAF Fairford: In March 2003, Paul Milling, Margaret
Jones, Philip Pritchard, Toby Olditch and Josh Richards undertook
three, independent, actions, to try and prevent or delay the
take-off of American B-52 bombers from Fairford air force base in
Gloucestershire. These bombers were waiting to launch the attack
on Iraq that would begin the Iraq war. In the case of Milling and
Jones, the action involved disabling a fleet of bomb carriers and
other support vehicles used to supply the B-52 bombers. Olditch
and Pritchard were arrested inside RAF Fairford on their way to
the B52's. Josh Richards was arrested on his way into the base.
All five say they were justified in their actions, because they
aimed at preventing the commission of a far greater crime - that
of 'aggression', of starting an unprovoked war against another
country. Lower courts have so far denied them this defence
argument, saying that the alleged crime of attacking another
country is a matter for international law, which cannot be ruled
on in a British court. They will stand trial, separately, at
Bristol Crown Court later this year.
3. Valerie Swain - on the 9th March 2003 Valerie Swain cut a fence
at RAF Fairford in Gloucestershire and entered the base with the
intention of disrupting the loading of B52 aeroplanes destined to
take part in the bombing of Iraq and to disturb the preparations
for war. She was convicted of aggravated trespass.
For more information about the Marchwood case: call Greenpeace UK press office on 0207 865 8255.
Greenpeace media contact at Court during the trial: Louise Edge 07801 212993.
For more information about the various Fairford cases contact:
Margaret Jones on 0117 9466885 or Paul Milling on 07765 836150
Philip Pritchard and Toby Olditch at www.b52.org
or email
phil@rubbishmonsters.com . For more information about the Valerie Swain case contact her on 029 20384384 or 07980 048928.
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