31st July 2017
You will read – on social media and elsewhere – that today the High Court decided to not prosecute Tony Blair (and others) for war crimes.
The High Court did not make that decision.
First, the High Court was not being asked to make a decision on whether Blair should be prosecuted. That would be a decision for a criminal court – to permit a private prosecution.
The decision today was about whether a decision not to permit such a prosecution was lawfully open to the criminal court. The High Court held that it was not open to a criminal court to give that permission. So: one step away from a decision to allow any prosecution.
Second, the High Court was bound by a 2006 decision of the House of Lords (the predecessor to the current Supreme Court). So: it was in 2006 that the decision was made that the waging of aggressive war was not a domestic crime, and not today. All the High Court did today was follow a decision more than ten years’ old.
Today the High Court made neither a decision to not prosecute for war crimes nor new law. The High Court instead said somebody else could not make the decision, and did so by applying old law.
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