Aggression at the Court of Appeal
1 School of Law, University of Nottingham.
The recent decision of the Court of Appeal in Jones & Milling, Olditch & Pritchard, and Richards is of interest to both domestic criminal lawyers and international lawyers. The decision arose out of acts of civil disobedience amounting to criminal damage, which the various defendants sought to argue was defensible on the basis of attempting to stop war crimes or the crime of aggression against Iraq. The judgment covers a remarkable amount of ground in a short judgment, taking in the question of justiciability, the place of customary law in the domestic legal system and the conditions under which customary crimes may be prosecuted directly in the legal system of England and Wales, alongside the hugely important issue of the definition of aggression. On this last, fundamental, issue, the Court’s judgment is lacking, betraying a failure to appreciate the distinction between the debate over the question of preconditions to the jurisdiction of the International Criminal Court and that over the definition of aggression. This failure led the Court up an evidential blind alley when determining the customary law on aggression, and it is to be hoped that this error may be rectified on appeal.