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31-Aug-2004

Fairford Five meets new obstructions as it proceeds through the judicial process.

by: Louise James and Margaret Jones

Britain: The Fairford Five are offering a similar defence that they carried out their actions to resist what they believe to have been an illegal war. They are appealing the ruling at a pre-trial hearing at Bristol Crown Court that there could be no discussion of whether the act of launching the war against Iraq was in itself illegal, regardless of the way in which the war was fought. This “non-justiciable” ruling was based on the basic principle of a British government’s decision to go to war as a matter of “Crown Prerogative”- something a British domestic court cannot be allowed to decide. But, in the words of barrister Hugo Charlton, who is representing one of the defendants, any such ruling sets the British government above the law and categorized it as “a James Bond licence to kill.”

A few weeks later, on the 1st of July 2004, the Foreign Office official issued a dramatic warning this week, about possible consequences of a British court ruling on the legality of the Iraq war. The Permanent Under- Secretary of State at the Foreign Office and Head of the Diplomatic Service, Sir Michael Hastings Jay, delivered it a few minutes prior to the hearing and it was not cited in evidence, so it can be quoted here. His statement warned that any court ruling on the Iraq war critical of UK government policy could damage relations with other governments, destabilise the new administration in Iraq, give aid and comfort to terrorists, and put the lives of British citizens in danger. But, it offers an indication of the present British Establishment’s extreme touchiness where any possible court ruling relating to the Iraq war is concerned.

Sir Michael writes, “In the judgment of the Secretary of State and the Foreign & Commonwealth Office, and in my own opinion, it would be prejudicial to the national interest and to the conduct of the Government’s foreign policy if the English courts were to express opinions on questions of international law concerning the use of force by the United Kingdom and the United States which might differ from those expressed by the Government and advanced by it in the conduct of international relations.”

Sir Michael adds that, in his view, UK’s “efforts to negotiate and secure effective measures against proliferation of weapons of mass destruction (and in particular to prevent them becoming available to terrorist organisations) could be hampered” - also “the United Kingdom’s efforts to secure co-operation of States in measures against terrorists based in other countries, and measures to secure co-operation in the exchange of information vital to security matters.”

The response of the lawyers for the five peace activists was that for their clients to have a fair trial, it will be necessary for them to speak of their “sincere belief” that the war was unlawful. Sadly, about 3 weeks later, the Court of Appeal issued its ruling that the mention of the Iraq War was “not necessary.” What follows are excerpts from the judgement.

The main point at issue: the defendants’ right to argue that they carried out their actions to resist an illegal war.

This morning the Appeal Court judges hearing the appeal - Lord Justice Latham, Mr. Justice Gibbs and Judge Richard Brown - ruled it is “not necessary” to consider the legality of the war in Iraq, for the accused to have a defence in law. There is no need, the judges say, even to debate whether an English court has the right to rule on government policy in the case. The judges find no “established rule” which defines the international crime of aggression by a government as being also a crime in English law. So the accused are unable to claim “preventing the crime of aggression” as the basis of their defence.

At trial, the defendants will still be able to rely on the defence of “lawful excuse.” They will be able to argue from the Criminal Damage Act of 1971 that, in damaging support vehicles for B-52 bombers, or in breaking into Fairford air base to try and disable a plane, they were defending a “property, right or interest,” that they honestly believed was in need of protection.

Since this defence under the Criminal Damage Act does not specify whether the action a defendant seeks to prevent must something illegal, the Appeal Court judges again found it possible to avoid considering the possible unlawfulness of the Iraq war.

In view of the aforementioned warning from the Foreign Office, this Court of Appeal judgement comes as no surprise. Defendants will now discuss with their lawyers whether they have grounds to for a further appeal, to the House of Lords.

Source: Louise James and Margaret Jones