UK Armed Forces Personnel and the Legal Framework for Future Operations

Written evidence from The Humanitarian Intervention Centre


This paper intends to provide Her Majesty’s Government with a comprehensive overview of the rules regulating armed conflict known as International Humanitarian Law. It will highlight the protections that are afforded to UK military personnel operating in conflict situations and the laws that they are required to observe. The second part of the paper will then provide an overview of the International Criminal Law regime and highlight the circumstances in which the actions of service personnel could result in the commission of a criminal offence for which the perpetrator is liable to be prosecuted and explain how such a prosecution could occur. Finally, the paper highlights some of the challenges that modern conflicts have created for the military and issues that will need to be considered when developing a legal framework for future military operations.

Contributors :

- Julie Lenarz – Executive Director

- Daniel Wand – Junior Fellow

- Michelle McKenna – Research Assistant


Protections and Obligations on UK Armed Forces Deployed at Home and Abroad

When deployed at home, UK armed forces personnel are obliged to comply with civil and criminal law. As agents of the state they also required to comply with the UK’s obligations under the European Convention on Human Rights ("ECHR") and other international human rights treaties. In the event of a non-international armed conflict they are also obliged to comply with Common Article 3 to the Geneva Conventions and Additional Protocol II. These also all provide protections for soldiers.

When deployed abroad UK soldiers are bound to comply with international law. In particular, they are obliged to respect the Geneva Conventions and distinguish between civilians and combatants. In addition to this, they must treat prisoners of war with respect and it would be expected that our soldiers would be treated the same way. There is also the possibility that the UK would have to apply human rights extraterritorially and soldiers must respect this.

International Criminal Law

International Criminal Law is an international legal regime that has established a set of rules proscribing certain categories of conduct and makes the breach of such rules a criminal offence that entails personal criminal responsibility for the perpetrator. The legal regime has universal application and as a consequence applies to all individuals including UK service personnel on active duty in foreign jurisdictions and in all territories. It cannot be derogated from in any circumstances.

The vast majority of its content is derived from the Geneva Conventions and customary international humanitarian law. As a result, grave breaches of the Geneva Conventions and serious breaches of international humanitarian law can result in criminal liability. The main and most developed of international crimes are war crimes, crimes against humanity and genocide. This paper will primarily focus on war crimes, as these are the crimes most likely to be committed by UK military service personnel during armed conflicts. It is important to remember that war crimes cannot only be committed by soldiers on the ground, but also by the individuals in command of those soldiers.

There are a number of ways in which an individual accused of having committed a war crime can be prosecuted. This is a result of the disaggregated nature of the international criminal justice system. Individuals can be prosecuted by the domestic court systems of nation states, ad hoc criminal tribunals, internationalised criminal courts or the International Criminal Court at The Hague.

The court in which an individual is prosecuted is dependant on which court has "jurisdiction". The rules of jurisdiction are set out in the constituent instruments of each court, the domestic law of states and international law. Therefore although International Criminal Law is applicable to all individuals, the regime under which it will be applied and enforced varies.

Domestic court systems have an important role in the prosecution of war crimes. Customary international law provides that states must investigate war crimes allegedly committed by their nationals or armed forces, or any war crimes over which they have jurisdiction, and, if appropriate, exercise the criminal jurisdiction that their national legislation confers upon their courts and prosecute the suspects accordingly. This is now also enshrined in the Rome Statute of the International Criminal Court.

Domestic courts may be able to exercise universal jurisdiction to prosecute international crimes committed by nationals of other states that were committed outside of their territory. The exercise of universal jurisdiction is not conditional upon some link to the state that seeks to exercise jurisdiction. There are a number of other types of jurisdiction including the active and passive personality jurisdictions, territorial jurisdiction and the protective jurisdiction. The International Criminal Court will also prosecute war crimes were it is able to establish the necessary jurisdiction.

The modern nature of conflicts including close  combat and counter-insurgency has made breaches of international humanitarian law increasingly more likely to occur. It is therefore imperative that military personnel of all levels continue to receive regular and high quality training on the rules of warfare and the consequences that can flow from breaches those rules.

Legal Protections and Obligations Applying to UK Armed Forces Deployed at Home

1. There are a number of legal obligations on UK armed forces when deployed within the UK. In particular, the army must comply with the criminal and civil law in the area in which they are deployed (be it England & Wales, Scotland or Northern Ireland, as the laws differ within each region). In this respect, soldiers are no different to civilians when it comes to compliance with the law and they should be prosecuted or disciplined accordingly if they breach it [1] . Many of these laws have been implemented within British military codes and if soldiers breach these codes then they will face disciplinary proceedings within their regiment.

2. Soldiers deployed within the UK – or anywhere within Europe – are required to abide by the human rights standards set out by the ECHR which has be implemented into UK law by the Human Rights Act 1998 ("HRA"). As arms of the state, the British Army must respect these rules; however, the HRA allows certain rights to be derogated from in certain circumstances, which will be explored in more detail below.

3. In the unlikely event that there was to be an armed conflict of the requisite intensity in the UK, soldiers of the British armed forces would be required to comply with the rules relating to non-international armed conflicts ("NIAC") set out in the Geneva Conventions and their Additional Protocols. This also applies to soldiers serving with the British army abroad in an ‘internationalised’ NIAC, for example the current situation in Afghanistan.

4. Each of these obligations upon British soldiers are in turn also legal protections upon them.

Observance of Human Rights Standards

5. Schedule 1 Part I of the Human Rights Act 1998 implements into British law the rights enshrined in the ECHR. For the purposes of this report, the right that is most relevant to the obligations on UK armed forces personnel is the right to life, contained in Article 2 of the Convention. This provision provides that "everyone’s right to life shall be protected by law" and can only be removed following the execution of a sentence of a court in which that penalty is provided by law. This right is reflected in the criminal law prohibition of murder and, on the basis that the death penalty is not a legal punishment in any of the UK jurisdictions, it is a rigorously protected right. Unlike in situations of armed conflict, armed forces personnel are not permitted to kill arbitrarily, except in certain strict circumstances. This right to life is also a protection upon soldiers when deployed in the UK.

6. Article 2(2) provides limitations on the right to life in very restricted circumstances. This provision provides that a deprivation of life shall not breach the convention if the use of force is in (a) defence of any person from unlawful violence (essentially self-defence); (b) order to effect a lawful arrest or to prevent the escape of someone lawfully detained; or (c) action lawfully taken for the purpose of quelling a riot or insurrection. In each of these instances, force used can be no more than absolutely necessary and if there is a lesser way of averting the threat then killing should be avoided. To put this into context, the armed forces can use force legitimately when it is necessary and proportionate to avert threat to human life or to dispel serious crime.

7. In the event that a soldier breaches either the right to life provision or any other criminal laws, the ECHR provides with him with the right to a fair trial (Article 6) and ‘no punishment without law’ (Article 7), meaning he cannot be prosecuted for a crime that was not against the law at the time in which it was committed. These protections are afforded to personnel both in front of national courts and military tribunals.

8. UK soldiers are also bound to respect other human rights treaties that the UK has ratified. Those relevant to this report include the International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights 1966 and the Convention Against Torture 1984. These treaties, along with the ECHR, do not impose individual liability for the soldiers, but the UK is responsible for the actions of their soldiers as they are agents of the state and thus persons who feel that their rights have been violated can bring claims against the UK in front of the relevant treaty body or court.

9. These human rights protections apply both in peacetime and in times of armed conflict. Several of the human rights treaties have not been incorporated into UK civil law so citizens do not have a direct right of action in domestic courts if their rights have been violated. However, the UK is still internationally accountable for breaches and as they have to regularly report back to the treaty bodies it is in the UK’s best interest that the treaties are followed. Furthermore, many human rights standards have been incorporated into criminal law and it is important that when soldiers are deployed within the UK that they respect the criminal law or they could face charges.

Application of Geneva Conventions in a NIAC

10. In the unlikely event that an armed conflict was to break out within the UK and armed forces had to be deployed, personnel would be bound by international humanitarian ("IHL") law, namely Common Article 3 ("CA3") of the Geneva Conventions and Additional Protocol II ("APII"). The Geneva Conventions of 1949 and their Additional Protocols of 1977 set out the rules to be followed in an international armed conflict ("IAC"), but only Article 3, which is common to all 4 Conventions, and Additional Protocol II apply in the instance of a NIAC.

11. In order to assess whether CA3 applies, it must be determined whether an armed conflict reaching the requisite intensity is taking place. This standard differs between a CA3 conflict and an APII conflict, and a third threshold has been added by the ICTY in the Tadić case. Defining a NIAC is more challenging than an IAC, as an IAC will occur whenever there has been resort to armed force by one state against another.

12. In order for CA3 to apply, there must be armed violence reaching a requisite level of intensity between the government and non-state groups, or between such groups. There is no clear definition of the level of intensity that this fighting has to reach, but it is generally accepted that internal disturbances are excluded and the ICTY in Tadić has gone as far as to suggest that there should be ‘protracted armed violence.’ [2] Furthermore, the non-state groups must also have a certain level of organisation about them in order for them to be considered parties to the conflict and CA3 apply.

13. Once it has been established that CA3 applies in a given situation, it then must be examined what exactly this means in practice. Subsection 1 of CA3 provides that persons not taking active part in hostilities (for example civilians and those who are hors de combat) are to be treated humanely. This means that the following is prohibited: violence and murder; cruel treatment/torture; the taking of hostages; humiliating and degrading treatment; and the passing of sentences/executions without judicial guarantee. Subsection 2 also provides that the sick and wounded are to be collected and looked after. These provisions provide obligations upon the armed forces to uphold and they also provide protections upon them.

14. APII provides additional protections in the case of applicable NIACs. The threshold for APII to apply is much higher, however, so it is possible to have a CA3 conflict without APII being triggered. Article 1(2) at the outset rules internal disturbances and tensions, such as riots and isolated and sporadic acts of violence, as being outwith the scope of application. Article 1(1) sets out when an applicable conflict occurs: an armed conflict will exist when there is resort to armed violence between governmental armed forces and non-state groups, provided the later exercises a level of territorial control that would allow them to carry out ‘sustained and concerted military operations.’ One of the key differences between this and CA3 is that APII does not apply to conflicts occurring between two non-state groups. Furthermore, a non-state group can only be a party to the conflict if it exercises a degree of effective territorial control, which is a much higher threshold than the organisation required by CA3.

15. Should it be established that a conflict exists in which APII applies, the protocol provides many more protections and obligations upon fighters than CA3 does.

16. As above, these provisions apply equally in respect to protecting our armed forces as well as obligations upon them to respect. For instance, Part IV gives specific protections to civilians, providing that they are not to be the object of attack for as long as they are not directly participating in hostilities. Part III provides more substantive protections for those who are wounded or sick and Part II provides for humane treatment.

17. It must be noted that APII has not been universally signed by all states – unlike the Geneva Conventions – so in theory may not apply to all conflicts that the UK armed forces could be involved in, but customary international law has developed to fill the gap and thus APII will almost always apply if the intensity threshold is met.

18. In addition to this, many of the provisions laid out in Additional Protocol I applying to international armed conflicts have passed into customary international law and would also apply in a NIAC. One of the main differences between the IAC and NIAC conflict provisions is that soldiers are not afforded Prisoner of War ("PoW") status if they are captured. This is because the term combatant does not exist in a NIAC and instead parties to the conflict are classed as ‘fighters’. In most instances, only governmental forces will be official fighters and everyone else will be a civilian, unless they are taking direct part in hostilities. This does not necessarily mean that the protections afforded to those captured are different to those who are officially PoW. Many rules relating to the treatment of PoWs have passed into customary law and now similarly apply in NIACs. In October 2012 a group of 24 states, including the 5 permanent members of the UNSC, and representatives from other organisations such as the EU, NATO, AU and ICRC, drafted a series of principles and guidelines entitled the Copenhagen Process on the handling of detainees in international military operations. [3] Whilst not aiming to draft new legal obligations, the group has come up with a series of guidelines on how to interpret and apply the current rules on detainees. These principles are intended only to apply to NIACs as substantive rules already exist on the treatment of PoWs in IACs. The most important rule arising from the Process is that all detainees are to be treated humanely.

19. As well as applying at home in the UK, these rules also apply to UK armed forces deployed in what has been described as an ‘internationalised’ NIAC abroad. An example that can be given of this is that which is currently occurring in Afghanistan. Whilst this was a classic IAC at the outset, the IAC ended in June 2002 with the election of a new Afghan government and a new NIAC began when the UK and US forces were invited by the Afghan government to support them. The fighting in Afghanistan is thus no longer interstate as it is between the government and non-state actors, with the coalition forces supporting the government.

20. If any British soldiers were to be suspected of breaching these provisions they could face prosecution for war crimes before an international court or domestically. As human rights protections run concurrently to international humanitarian law during an armed conflict, soldiers could also be subject to prosecution for crimes against humanity if there is a serious breach of human rights law. These matters will be discussed more fully below.

Legal Protections and Obligations Applying to UK Armed Forces Deployed Abroad

21. When deployed abroad, UK armed forces are bound to comply with international law. There are several bodies of international rules that apply to soldiers depending on the context. In the first instance, when serving in an armed conflict, soldiers are bound to comply with international humanitarian law, which, as discussed above, is contained within the Geneva Conventions and Additional Protocols. Furthermore, those serving in the armed forces are bound to comply with international criminal law, most of which has been codified within the Rome Statute of the International Criminal Court, to which the UK is a state party. This issue will be dealt with more fully below and will thus not be considered in this context. Regardless of whether an armed conflict exists or not, soldiers are bound to respect international human rights standards whenever the UK is held to have jurisdiction, and in turn would expect these to be upheld towards them.

22. As was briefly outlined above, the rules governing an armed conflict differ depending on whether the conflict is one of an international or non-international character. An international armed conflict is one where one state is fighting against another or a coalition of states is fighting one common enemy state. If an international armed conflict exists, the 4 Geneva Conventions and Additional Protocol I apply. These Conventions are as follows:

(i) Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field ("GCI")

(ii) Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea ("GCII")

(iii) Treatment of Prisoners of War ("GCIII")

(iv) Protection of Civilian Persons in Time of War ("GCIV")

23. Additional Protocol I extends the provisions of each of these conventions and deals with the issue of conduct of hostilities more generally, including means and methods of warfare. Each of the conventions and API give protections to armed forces personnel deployed abroad and obligations upon them to follow.

24. It is most likely that when UK armed forces are deployed abroad they will be taking part in an international armed conflict either under direct UK control, or under command from NATO, for example in Libya in 2011. Regardless of in which manner the forces are deployed these rules apply equally. As discussed above, it is also possible that UK forces could be taking part in an internationalised NIAC abroad, such as the latter years in Afghanistan, and thus these rules would not apply. It is also possible that UK troops could be deployed within a UN peacekeeping mission. In that instance, the main body of rules that would govern the forces is the mandate set force by the UN, which will always oblige troops to respect human rights. In that instance, unless the troops are given a robust mandate, they will not be permitted to use force.

When Force Can be Used Legitimately

25. If an IAC exists, UK armed forces personnel are permitted to use force to kill their enemy. The enemy in this instance would be governmental forces of the other state or those taking direct part in hostilities. As GCIV sets out, force cannot be used against civilians. This is the principle of distinction – civilians and civilian objects should at all time be distinguished from combatants and military objectives and should never be the subject of an attack. Whilst it can sometimes be difficult to distinguish between combatants and civilians, this is the basic principle of IHL and soldiers are bound to respect it in all circumstances.

26. That is not to say that every instance in which a civilian is killed or injured will necessarily be a breach of IHL. It is sometimes impossible to avoid civilian casualties when carrying out attacks on legitimate targets. What is important is that it is not the civilians themselves that have been attacked. Soldiers are only allowed to use proportionate force to attack military objects. Proportionality is measured by determining the military gain achieved by the attack versus the harm to civilians. This can be a difficult thing to quantify, but it is important that soldiers bear this in mind when planning attacks. The harm to civilians can be minimised by using precautions in attacks. This includes doing everything feasible to minimise the number of civilians in the area at the time, possibly by giving advance warning of the attack.

27. Furthermore, only legitimate military objects can be attacked. Often it is quite clear what a military object it – e.g. a tank or a military base – but in other instances, objects that may appear to be civilian in nature may in fact serve a military purpose. Some examples of these include major infrastructure such a bridges and train lines, airports and radio and television stations. Objects that have a predominately civilian nature but can also service military objectives are considered ‘dual use.’ These objects can be attacked if it can be considered military necessity and the attack is proportionate. Article 56 of API sets out some exceptions to this rule if an attack would cause ‘consequent severe losses among the civilian population.’

28. When preparing for an attack – or analysing it after the event – the weapons used in the attack can be important for determining if it is proportionate. For example, cluster munitions are indiscriminate weapons and thus would not pass the proportionality test. The debate over indiscriminate weapons has arisen recently in regard to autonomous weapons and whether drone strikes comply with IHL. As technology advances quickly, careful consideration should be made of the effects of new weapons and an analysis of whether they comply with IHL should be made before they are used.

29. Civilians are only protected from being subject of an attack as long as they are not taking direct part in hostilities ("DPH"). If civilians take up arms and are DPH then they become legitimate military targets and are no longer protected by GCIV. Civilians are DPH when they "carry out acts which aim to support one party to the conflict by directly causing harm to another party." [4] Thus it is key that the civilian is attacking the soldier/combatant because of his capacity and not for some other reason (e.g. self-defence in a robbery). The ICRC has suggested that those who are members of an organised armed group have a ‘continuous combat function’2 and thus can always be attacked regardless of whether they are DPH, however, this idea has not been widely accepted by the international community. It is important to note here that even if a civilian is DPH that does not make them a combatant or party to the conflict and thus they don’t have the same privileges that soldiers have, in particular they don’t have the right to kill.

30. Geneva Conventions I&II provide that force cannot be used against those that are hors de combat. A soldier will be hors de combat if they have been wounded, have put down their arms and are surrendering and if they have been detained. This provision will apply as long as the individual is not taking part in hostilities. UK armed force personnel are bound to respect this provision and it equally applies to our soldiers if they become hors de combat.

31. The rules contained in GCIV also extend to instances of military occupation, in particular through Section III. Article 42 of the Hague Convention of 1907 sets out that a territory is occupied when it is placed under the authority of a hostile army and extends within the territory in which this authority has been established and can be exercised.

GCIII – Prisoners of War

32. Perhaps the most robust rules of IHL providing protection to our armed forces are those contained in the third Geneva Convention on the treatment of prisoners of war ("PoW"). This convention must be respected by UK soldiers as well as them being afforded protection by it. GCIII only applies in IAC thus PoW status is not available in NIAC.

33. Article 4 of GCIII sets out what categories of persons become PoWs when they fall into the power of the enemy. This includes members of the armed forces and members of other organised groups that are party to the conflict. This means that if a member of the UK armed forces is captured during an IAC then they should be given PoW status and the protections that come with that. Likewise, if our armed forces capture anyone belonging to one of the categories listed in Article 4 then they are obliged to treat them in the same way. If there is doubt about the status of someone captured, Article 5 sets out that they are to be treated as a PoW until a competent tribunal proves otherwise.

34. Part II of the convention sets out the general protections afforded to PoWs. The most important provision is that PoWs must be treated humanely and with respect. One of the gravest breaches of these provisions of the recent past was seen with American soldiers torturing Iraqi PoWs at Abu Ghraib prison between late 2003 and early 2004. The human rights violations within this camp were widespread – physical, mental and sexual abuse, rape, sodomy and murder, amongst other things – and a defence was given that the Geneva Conventions did not apply and in any case, the soldiers involved did not know their actions breached them. The soldiers involved were disciplined by the US military and were discharged and sent to prison, which has to be commended, but this situation is important to highlight how imperative it is for soldiers to be trained in what the Geneva Conventions are and know when and how to follow them. This is still an issue at Guantanamo where human rights abuses are ongoing, but the US claims that the prisoners are unlawful enemy combatants and neither the Geneva Conventions nor domestic US law applies (as Guantanamo is located outwith US territorial jurisdiction).

35. PoWs are to be released and repatriated without delay after the end of the conflict.

36. As was seen in the case of Abu Ghraib, breaches of these provisions – or of any of the Geneva Conventions for that matter – are war crimes and can also amount to crimes against humanity. In addition to this, what was seen in Abu Ghraib was also a breach of the Convention Against Torture. It is important that UK armed forces know these rules and that the military are prepared to prosecute those who don’t abide by them. The concept of universal jurisdiction for prosecuting these crimes within international criminal law will be discussed infra.

Extraterritorial Application of International Human Rights Law

37. It is well accepted that states must abide by human rights within their territory after signing and ratifying an international human rights treaty. What is less clear-cut is whether or not they have to apply these same standards when they are acting abroad.

38. In Article 1 of the ECHR it sets out that a state party must provide the freedoms and rights contained within the convention to those within their jurisdiction. It is this notion of ‘jurisdiction’ that creates a degree of ambiguity. Traditionally, jurisdiction would only extend within the territory of the state. This is the approach that the European Court of Human Rights ("ECtHR") took in the Banković case. [5]

39. However, since the Banković case, the ECtHR has extended this notion to include both territorial jurisdiction and personal jurisdiction. This means that the ECHR could now be applied extraterritorially. This is more in line with the approach of "within its territory and subject to its jurisdiction" contained in Article 2(1) of the ICCPR. The ECtHR discussed this approach in deciding the outcome of the Al-Skeini case. [6] In this case, the matter at issue was whether 6 Iraqi men who were killed by UK soldiers in Iraq could come under the jurisdiction of the ECHR. Five of the men were killed by soldiers on the street and the UK House of Lords held that the UK could not be liable for these killings. However, the ECtHR held that as the UK exercised effective control and authority over the area, their jurisdiction extended to Iraq and thus they were bound to apply the ECHR right to life. The sixth man had been detained in a jail in Iraq and after being severely mistreated by soldiers he was killed. The court said in relation to this man that whenever a state exercises control and authority over an individual then they must afforded to him the rights and freedoms enshrined in Article 1 that are relevant to his situation. Thus the UK soldiers breached the convention and the UK was liable for this.

40. The ECtHR maintains that extraterritorial application of human rights is still and exception to the rule and will only allow it in extreme circumstances. However, other bodies such as the ICJ and the Human Rights Committee (the treaty body of the ICCPR) have stated that extraterritorial activity will trigger international human rights law application. It is thus important that soldiers know these rules and know when to apply them. There is a debate as to whether both human rights and IHL apply in times of armed conflict. It is generally accepted that IHL is a lex specialis that overrules international human rights during an armed conflict in respect to those who are involved in the conflict. Therefore, civilians are still entitled to human rights even when an armed conflict occurs.

41. The interplay between application of IHL and human rights is particularly important in the debate over drones. Drone strikes are being regularly used by the United States against members of al Qaeda and associated groups in countries such as Yemen and Pakistan. Their reliance for this is on the basis that they are fighting a worldwide armed conflict against terrorism. However, this notion of worldwide armed conflict has not been accepted by the international community. If IHL does not apply, as there is no armed conflict where the strike takes place, then human rights law could potentially come into play. There is no international consensus on whether human rights should apply in this situation. The US has rejected the notion of extraterritorial application of human rights and thus claims that human rights do not apply. However, as has been demonstrated by the above discussion, the ECtHR has held human rights to apply extraterritorially if the state has jurisdiction there, so it is possible that at some point in the future the court could hold that human rights apply to drone strikes. This is an important issue to highlight should the UK be considering including the use of drones in future operations.

International Criminal Law

What is International Criminal Law?

42. International Criminal Law ("ICL") is an international legal regime that has established a set of rules proscribing certain categories of conduct and makes the breach of such rules a criminal offence that entails personal criminal responsibility for the perpetrator. The comprehensive international framework also establishes judicial mechanisms and procedures to enforce ICL. ICL is based upon modern civilised domestic criminal justice systems, applying the same underlying principles and operating in a similar manner but providing for its application on the international plane.

43. Despite the fact that the notion of international crimes was initially articulated, albeit in a highly rudimentary fashion, in the latter half of the 19th century and the fact that there have been many abortive attempts to create an a system of international justice with the requisite enforcement mechanisms throughout the first half of the 20th century, ICL did not really come to be established substantively until the creation of the International Military Tribunals of Nuremberg and the Far East.

44. These tribunals established beyond doubt the principle of individual criminal responsibility – that is the notion that it is not state entities that are responsible for grave violations of international humanitarian law but the individuals that commit those crimes. It is also a fundamental principle of the system that criminal culpability can be established regardless of whether the individual was acting in an official capacity or under the orders of the state command.

What are International Crimes?

45. International crimes are breaches of international rules that entail personal criminal responsibility for the individuals who have committed such breaches. ICL was not created as a unified body of law but was developed on an ad hoc basis. As a result the crimes that are established in international law are set out in international treaties, instruments creating international criminal tribunals, domestic legislation and customary international law. The three core crimes provided for and firmly established in ICL are war crimes, crimes against humanity and genocide. It can be said that these were developed first and have received the most attention, as they are arguably the most odious offences that can be committed by individuals.

(i) War Crimes

46. War crimes are the oldest of the all of the international crimes and are broadly defined as serious breaches of IHL. The International Criminal Tribunal for the Former Yugoslavia ("ICTY") defined the notion of a ‘serious breach’ as one that entails a ‘breach of a rule protecting important values and involves grave consequences for the victim’. [7] The Statute of the International Criminal Court ("ICC") defines war crimes as "Grave breaches of the Geneva Conventions of 12 August 1949" and "serious violations of the laws and customs applicable in international armed conflict". The Statute also helpfully provides a high level of detail as to how the elements of the crime can be satisfied and sets out an extensive list of activities that constitute the commission of a war crime. [8]

47. In order for a war crime to be committed the act must have been perpetrated in the course of an armed conflict that may be either international or non-international in nature. War crimes can be perpetrated by military personnel against enemy combatants or civilians or by civilians against any military personnel or other civilians. However, in order for a war crime to be committed the action must have a sufficient nexus to the armed conflict – that is it must be related to it in some way. If this cannot be established then the crime is one under domestic law only. UK service personnel can therefore commit war crimes against enemy combatants or civilians in the course of an armed conflict.

(ii) Crimes against Humanity

48. Crimes against Humanity are broadly defined as acts which are wilfully committed to cause great suffering or serious physical or mental injury and are committed as part of a widespread or systematic attack directed against any civilian population. Acts which are deemed to cause great suffering include, but are not limited to, murder, rape, extermination, forcible transfer, torture, enslavement, persecution and unlawful imprisonment.

49. These acts must have been committed in furtherance of an organised plan or strategy initiated by a government or de facto authority and the individual perpetrator needs to know that there is an attack on a civilian population and that his action forms a part of that attack in order to constitute a crime against humanity. Unlike war crimes, crimes against humanity can be committed in times of peace as well as in times of war. The perpetrators can be either individuals acting on behalf of the state/de facto authority or ordinary civilians acting in furtherance of an organised strategy or policy.

(iii) Genocide

50. The crime of Genocide is defined as acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, by way of: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting upon the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) preventing birth with the group; or (e) forcible transfer of members of that group. [9] The crime of genocide was codified with the creation of the Genocide Convention in 1948, which provided a specific definition of the act of genocide and provided for its criminalisation.

(iv) Aggression

51. The Rome Statute establishing the ICC provides that "the crime of aggression means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a state, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations". The ICC has only just, as a result of the Kampala agreements, acquired jurisdiction to prosecute this crime although it will not become operational until 2017 at the earliest.

52. It is important to note that a violation of the UN Charter must be manifest to constitute such a crime. For example it is suggested that a breach of the prohibition on the use of force will only be a crime where it is a grave violation with serious consequences. [10] The crime of aggression is not automatically founded when the Security Council declares that an act of aggression has been committed by a state. The crime of aggression which entails individual criminal responsibility must be established independently and the crime is much more narrowly construed and a higher threshold is required to found criminality. Therefore, a small act of aggression by a state, although enough to establish state responsibility will not be enough to satisfy criminal culpability.

(v) Torture

53. The crime of torture, in addition to being an act that can constitute a crime against humanity when perpetrated in a widespread and systematic manner or a war crime when committed in the course of an armed conflict, is also a standalone crime under international law that can be committed through a single act of torture. It is not however a crime over which the ICC has jurisdiction unless it amounts to a war crime or a crime against humanity.

54. The discreet crime of torture has been developing for a quite some time through international conventions [11] , human rights treaties and criminal tribunals and it is widely considered that torture is a most grievous crime and is established within the international criminal regime. The crime of torture is now broadly accepted by the international community and is defined as:

" any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions " [12]

The Relationship between ICL and IHL

55. There is substantial crossover between ICL and IHL and they are mutually enforcing regimes. They however remain conceptually and substantively distinct regimes and serve different purposes. IHL, codified in the Geneva Conventions and its additional protocols as well as in customary international law, are the rules of armed conflict that seek to regulate the conduct of soldiers during warfare, and more generally the conduct of states and armed groups as the entities that orchestrate conflict. ICL on the other hand is far narrower in its remit "defining the substance and procedure of when and how violations of IHL...can give rise to individual criminal responsibility". [13] IHL is a guide to conducting armed conflict and ICL defines when breaches of that guide amount to a criminal offence for which one is liable to be prosecuted and punished.

56. ICL therefore takes a lot of its substance from the rules of IHL and many of the crimes defined within ICL are taken directly from IHL. IHL does not have its own enforcement mechanisms for breaches of the rules and is therefore dependant on ICL to enforce the rules by punishing those who breach them and at the same time deterring future breaches. IHL provides for a vast number of rules, but ICL does not replicate all of these and is only concerned with the most serious breaches of IHL. Therefore, not all breaches of IHL will entail personal criminal responsibility. However, some breaches of IHL whilst not amounting to a criminal offence may create civil liability for which the victim will be entitled to financial compensation from the state of which the perpetrator is a national.

To Whom Does ICL Apply?

57. The prohibition of certain acts and categories of conduct and the criminal responsibility that flows from the commission of such acts pertains to all individuals. The rationale behind this is that there are certain universal moral standards of behaviour which are expected of all peoples and thus the commission of acts which are so heinous and morally repugnant so as to breach these universal standards of behaviour should be punished irrespective of who commits them.

58. It would be an incomparable disservice to justice and also a serious threat to international peace and security if people were able to opt out of international criminal liability as they would essentially be free to commit international crimes with impunity. As a consequence individuals are subject to the rules set out in ICL and can be brought before national or international courts to be prosecuted for committing international crimes. ICL does not apply to states or international or domestic organisations.

59. This concept was a radical departure from the traditional horizontal application of international law. International law was traditionally merely concerned with regulating the interactions of state parties and did not seek to exert control over the individuals within those states – this being considered to be solely within the sovereign prerogative. However, following the moral outrage expressed around the world regarding the atrocities committed during the Holocaust it came to be considered that international law should seek to regulate the conduct of individuals and punish serious transgressions of the regulations and thus the concept of individual criminal responsibility was developed.

Does ICL apply to UK Military Personnel?

60. All military personnel are subject to the international criminal law regime. When conducting military operations all service personnel are required to comply with IHL and serious violations of these rules including grave breaches of the Geneva Conventions could result in criminal liability. If a serious violation of IHL is committed during an armed conflict and that crime has sufficient nexus to the conflict a war crime may have been committed which will give rise to criminal liability. Examples of war crimes that could be committed by service personnel during armed conflicts and which may give rise to criminal liability include, but are not limited to:

(i) Extensive destruction or appropriation of property not justified by military necessity and carried out unlawfully and wantonly;

(ii) Torture or inhumane treatment;

(iii) Committing outrages upon personal dignity, in particular, humiliating or degrading treatment and desecration of the dead;

(iv) Killing or wounding a combatant who has surrendered or is otherwise hors de combat;

(v) Pillage or taking other property contrary to international humanitarian law;

(vi) Making the civilian population or individual civilians, not taking a direct part in hostilities, the object of attack;

(vii) Launching an attack in the knowledge that such an attack will cause incidental loss to civilian life, injury to civilians or damage to civilian objects which would clearly be excessive in relation to the concrete and direct military advantage anticipated.

61. These criminal offences can be committed by the individuals that directly perpetrate the crimes or by the military commanders that order action to be taken by way of the operation of the doctrine of command responsibility. Article 28 of the Statute of the ICC provides that:

"...A military commander...shall be criminally responsible for Crimes within the jurisdiction of this Court committed by the forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:

(i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and

(ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution."

62. If UK military personnel commit war crimes that entail personal criminal responsibility when engaged in armed conflict they are liable to be prosecuted for the crimes committed.

63. It is however important to remember that war zones are dangerous, fluid and highly pressurised situations and it is within this context that military decisions have to be made, sometimes instantaneously, and without a thorough analysis of the consequences of that decision based upon sound and comprehensive intelligence. This is, regrettably, just the nature of combat. As a result mistakes will be made and civilian casualties will occur. This is, albeit highly regrettable, an unavoidable part of armed conflict. Where mistakes are made which result in the death or injury of civilians or where civilians are killed, not intentionally, but knowingly as the unavoidable collateral damage of a carefully directed military strike, criminally liable is highly unlikely to arise for those who carried out or ordered the attack.

64. IHL and ICL do not attempt to curtail the ability of the military to use lethal force against the enemy in pursuit of a strategic victory even if that use of force is likely to have limited unintended consequences such as the destruction of civilian infrastructure or the death of non-combatants. IHL seeks only to ensure that armed conflict is conducted in the most humane way possible by curtailing the excesses of the use of force and allowing only that which is proportionate to the military advantage to be achieved. It acknowledges that death is a necessary part of armed warfare but at the same time continues to promote the sanctity of life and the inviolable right to dignity shared by all human beings which is the basis on which it prohibits, amongst other things, the use of torture and degrading treatment and the intentional attacking of civilians or those hors de combat.

65. It is therefore the case that only the most egregious violations of the laws of war perpetrated in the course of armed conflict and committed intentionally or with unjustifiable reckless abandon will result in a criminal offence for which the perpetrator is liable to be prosecuted.

Who can Prosecute War Crimes?

66. Although ICL is applicable to all individuals, including service personnel, there is not a universal process by which all individuals are prosecuted and brought to justice, as is the case with domestic criminal justice systems. As a result of the piecemeal development of the international criminal justice system, the enforcement structure of ICL is high disaggregated and there are a number of mechanisms through which ICL is applied and individuals prosecuted. An individual could be prosecuted by an ad hoc criminal tribunal, by one of the many internationalised courts, by the ICC or by the domestic courts of nation states applying domestic and international law. The forum in which an individual is prosecuted is dependent on which court has "jurisdiction" to prosecute the crime.

67. The rules of jurisdiction are set out in the constituent instruments of each court, the domestic law of states and international law. The means by which an individual is prosecuted is therefore subject to the circumstances of each case including the nature of the crime, the territory in which the crime took place, the nationality of the individual who committed the crime and the nationality of the victim of the crime. Therefore, although ICL is applicable to all individuals at all times, the regime under which it will be applied and enforced varies.

Domestic Courts, Jurisdiction and War Crimes

68. Customary international law provides that states must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and if appropriate exercise the criminal jurisdiction that their national legislation confers upon their courts and prosecute the suspects. They must also investigate other war crimes over which they have jurisdiction and, if appropriate, prosecute the suspects. This is also incorporated into the Statute of the ICC. The Preamble to the Rome Statute recalls that it is "the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes". This duty has been reiterated by the United Nations General Assembly on numerous occasions.

69. Domestic criminal systems have a very important role to play in the enforcement of ICL. The existence of huge numbers of highly developed and fully resourced criminal justice systems which can be employed to give effect to ICL and bring perpetrators of grievous international crimes to justice significantly strengthens the enforcement remit ICL.

70. Whether a domestic court is able to initiate a prosecution of an individual suspected of having committed a war crime will be dependent on whether the court has jurisdiction. There are a number of ways by which states can claim jurisdiction over individuals who are accused of having committed international crimes and these can be provided for in domestic legislation or though the accession to certain treaties that impose obligations upon states. Most states, including the UK, have implemented the obligation to investigate war crimes and prosecute the suspects by providing jurisdiction over such crimes in their national legislation.

71. It has been established that national courts can apply ICL and prosecute individuals over whom they have jurisdiction even if they have not incorporated the relevant crimes into their domestic legislation. They are entitled to apply customary international criminal law as long as the crime in question was established in customary law at the time of the commission of the prohibited act so as not to violate the principle of the non-retroactive application of international criminal law. [14]

72. The next section will provide a brief overview of the different types of jurisdiction that exist in ICL.

(i) Universal Jurisdiction

73. Universal jurisdiction is an essential tool for the enforcement of ICL as it provides for the ability of a domestic judicial system in any state to try persons for crimes committed outside its territory that are in no way linked to the state by the nationality of the suspect, the nationality of the victim or by harm to the state’s national interests. The exercise of jurisdiction is not conditional upon some link to the state that seeks to exercise jurisdiction. This is confirmed in the Geneva Conventions.

74. In order to exercise universal jurisdiction a state must have expressly provided for it in its domestic legislation and in addition have provided for the crimes over which it intends to exercise universal jurisdiction in its domestic legislation. With regard to the exercise of universal jurisdiction over the international crimes provided for in the Rome Statute, three quarters of UN member states have authorised their courts to exercise universal jurisdiction over one or more international crimes. States that are party to the Geneva Conventions and Additional Protocol I are obliged to provide for universal jurisdiction in their national legislation over grave breaches of the rules. Numerous states, including the UK, have complied with this obligation.

75. The first rationale behind universal jurisdiction is that there are certain crimes, such as genocide, war crimes and crimes against humanity, which are so heinous and reprehensible that they are an affront to all humankind and therefore any state should be able to prosecute such individuals regardless of the nationality of the offender or the victims. The offender is in essence ‘an enemy of mankind’ and therefore all mankind has jurisdiction over their prosecution on behalf of the entire international community.

76. The second rationale is that the grievous nature of such crimes means that the individual should not be able to seek impunity and therefore should be liable to prosecution all over the world. Many states are either unwilling or unable to genuinely carry out investigations and prosecutions and therefore by providing for the ability for other states to undertake such action the opportunity for impunity is limited.

77. One of the most notable applications of the universal jurisdiction principle was the issuing of an arrest warrant for General Augusto Pinochet by the Spanish judge Baltazar Garzon and his subsequent detention in the UK. The House of Lords declared that Augusto Pinochet could be tried for crimes that had been committed after 1988 and could be extradited to face prosecution in Spain. Mary Robinson, the United Nations High Commissioner for Human Rights at that time, declared the House of Lords’ ruling as a ringing endorsement that torture is an international crime subject to universal jurisdiction. Another example of the application of universal jurisdiction was the prosecution of Adolf Eichmann by the state of Israel. There are numerous other examples of states exercising universal jurisdiction to prosecute those accused of having committed war crimes and crimes against humanity.

(ii) Active Personality Jurisdiction

78. The Active Personality Jurisdiction or the active nationality principle is a type of jurisdiction based upon the nationality of the suspect or defendant at the time of the commission of the crime. It permits states to prosecute their nationals for crimes that have been committed anywhere in the world, if, at the time the time of the offence, they were such nationals. A broader construction of this principle allows states to exercise jurisdiction over individuals which are domiciles or residents of that state not merely nationals. Once again in order for a state to be able to exercise such jurisdiction it must provide for it within its domestic legislation. States can provide for such jurisdiction over all crimes or limit it to only certain crimes.

(iii) The Passive Personality Jurisdiction

79. The Passive Personality Jurisdiction or the passive nationality principle is a type of jurisdiction based upon the nationality of the victim at the time of the commission of the crime. It permits a state to prosecute a national of another state who has committed a crime outside of its territory for which one of its nationals was the victim. Once again it can be defined more broadly to provide for jurisdiction over foreign nationals who committed a crime on foreign territory and where victim of that crime was a resident or domiciliary. This is a controversial basis for extraterritorial jurisdiction although it has been applied in a number of cases.

(iv) The Protective Jurisdiction

80. Finally, there is Protective Jurisdiction. This principle recognises a state’s power to assert jurisdiction over a limited number of crimes committed by foreigners outside of its territory, where the crime prejudices the states vital interests. The rationale behind this jurisdiction is that states are entitled to protect their own essential security and certain other essential state interests. The extent to which this principle is legislated for and employed by states to prosecute international crimes is uncertain.

(v) Aut dedere aut judicare

81. This principle is not a means by which to found jurisdiction, but is no less an important principle of international criminal law. This principle provides that a state must either prosecute an individual who has committed one of a number of defined international crimes where the state has jurisdiction over the individual or if that state is not willing or is unable to carry out a prosecution it must extradite the individual to a state that is willing to and has jurisdiction or to an international criminal court that has jurisdiction over the individual or the crime. The rationale behind this principle is that states should not be able to shield individuals accused of international crimes from prosecution.

International Criminal Courts

82. The need for states to prosecute individuals that commit crimes of international concern in foreign jurisdictions for the benefit of the wider international community under the exercise of universal jurisdiction was, to some extent, negated by the development of ICL and an international criminal court system. By creating institutions that were dedicated to prosecuting individuals that had committed international crimes, regardless of where they took place, it was thought that the need for states to prosecute foreign criminals though their domestic systems would become increasingly limited. This was considered to be a more appropriate means by which international criminals could be brought to justice as international criminal courts, backed by the international community, were more legitimate and less likely to be seen as politically biased than domestic prosecutions.

International Criminal Tribunals

83. The first international criminal court was the Nuremberg Tribunal set up by the Allied States at the end of the Second World War in 1945 to prosecute Nazi officers for the roles in the war crimes and crimes against humanity that were perpetrated throughout the war. This was a huge achievement and evidenced a momentous shift in our approach to international law. No longer was the international system seen solely in terms of sovereign states, but it was instead recognised that men had committed such atrocities and thus it should be the men, not the state, that was punished. [15]

84. They also founded the notion that ‘individuals have international duties which transcend national obligations of obedience imposed by the individual states’. [16] It came to be considered that individuals are now constrained not only by domestic laws but also by international legal regimes. If such international rules were broken an individual could be brought before an international court and become the subject of international legal proceedings even though he may well have been acting within the law of a state. Although this duality of legal systems had existed well before 1945, the ad hoc tribunals firmly established its applicability with regard to ICL. Finally, it was established that senior political officials and high-ranking military personnel were not immune from prosecution because of their status or rank. Traditionally it had only been servicemen that had been tried for war crimes but the immunity enjoyed by senior officials was eradicated.

85. Following Nuremburg and on the back of the ongoing development of the human rights discourse it became mainstream thought that those who commit the most heinous crimes should not be allowed to go unpunished merely because there was no consistently effective system by which they could be brought to justice and it was therefore agreed that an international criminal system should be created to fill this "impunity gap". This resulted in the initial suggestion for the creation of an international criminal court in 1948, and was also the main impetus behind the creation of the ad hoc tribunals for the Former Yugoslavia ("ICTY") and Rwanda ("ICTR").

86. Other criminal tribunals have also been created to prosecute crimes committed during subsequent conflicts including the Special Court of Sierra Leone, the Special Tribunal for Lebanon, the Extraordinary Chambers in the Courts of Cambodia and the Special Panels of the Dili District Court also known as the East Timor Tribunal. These tribunals are hybrid tribunals applying both domestic and international criminal law and are also more integrated into the domestic court structure which has made their operation far more cost effective.

87. International and mixed criminal tribunals have however come under intense criticism. It is said that as the tribunals are so costly and logistically difficult to set up they are only initiated in the most extreme circumstances and where a large number of heinous crimes have been committed in a particular area and in a particular period of time such as a during a civil war. The criminal tribunals jurisdictional remit is therefore limited temporally and territorially and as a result are only able to deliver justice in very limited circumstances and therefore unable to give effect to the universal application of ICL.

The International Criminal Court

88. The inherent problems with ad hoc tribunals led to renewed support for the creation of a permanent international criminal court. Following protracted negotiations, the Rome Statute was adopted by state parties on 17 July 1998 creating the International Criminal Court which is based at The Hague. The Rome Statute came into force on 1 July 2002 and the court became operational.

89. This was a momentous milestone in the development of ICL. The creation of a permanent institution dedicated to prosecuting those who commit the most grievous international crimes would provide continuous, universal and efficient justice. The enforcement remit of ICL was substantially increased and strengthened and as a result, no longer would individuals who had committed the most heinous crimes which were an affront to universal moral, ethical and legal standards be able to escape prosecution and punishment – impunity was to be eradicated. Kofi Anan said at the signing of the Statute of Rome:

" In the prospect of an international criminal court lies the promise of universal justice. That is the simple and soaring hope...We are close to its realization... to ensure that no ruler, no State, no junta and no army anywhere can abuse human rights with impunity " . [17]

(i) The Jurisdiction of the ICC

90. Although the ICC is an international court, its jurisdiction is not as universal and unlimited as one may have thought. The scope and parameters of its jurisdiction are clearly defined in its founding statute and they are based on the principle of territoriality and the active personality principle. Article 12(2) Rome Statute provides that the ICC has jurisdiction to prosecute: (i) the nationals of states that have acceded to the Rome Statute and (ii) individuals which have committed crimes on the territory of states which are party to the Rome Statute [18] . The jurisdiction of the ICC is therefore ‘not universal, but is territorial and personal in nature’. [19]

91. The construction of the ICC regime means that states have the option of acceding to the Rome Statute and submitting to its jurisdiction or placing themselves outside of the system. The construction of such a regime reflects the deference paid to the principle of state sovereignty and the ICC’s position within a horizontal and state centric international system.

92. This would not be an issue if all states acceded, but unfortunately this is not the case. As of May 2013 only 122 States had ratified the treaty and acceded to the court [20] and thus a significant number of States still do not recognise the jurisdiction of the ICC, including most significantly three permanent members of the Security Council: the United States, China and Russia. The United Kingdom is a signatory to the Rome Statute.

93. Such reluctance by a vast number of states to accede to the ICC has resulted in a patchwork jurisdiction. This has significant implications for the effectiveness of the ICC as a mechanism for enforcing international criminal law. [21] International criminals can merely move to or remain in states over which the ICC does not have jurisdiction in order to avoid capture and extradition or prosecution. This deficiency is evidenced by the fact that President Al-Bashir of Sudan, who has been indicted by the ICC, continues to travel whilst eluding the jurisdiction of the ICC.

94. The ICC is also limited with the regard to the crimes over which it has jurisdiction. The ICC is only able to prosecute individuals accused of: (i) genocide; (ii) crimes against humanity; and (iii) war crimes. The ICC, as a result of the Kampala agreements, will now also able to prosecute crimes of aggression although this jurisdiction will only become operational when enough states have ratified the amendments and will not be until 2017 at the earliest.

(ii) The Principle of Complementarity

95. The jurisdiction of the ICC is also somewhat restricted by the complementarity principle provided for in Article 17 Rome Statute. This principle provides that the court cannot exercise its jurisdiction (a case is inadmissible) if the case is being investigated or prosecuted by a state party through their domestic judicial system, which has jurisdiction over it. The ICC’s jurisdiction can however be subsequently engaged where it can be determined that: (i) a state is unable or unwilling genuinely to carry out the investigation or prosecution or where its decision not to prosecute the person concerned had resulted from its unwillingness or inability to genuinely prosecute and (ii) the case is of sufficient gravity to justify the exercise of the court’s jurisdiction.

96. This residual jurisdiction means that the ICC is a court of last resort rather than the primary mechanism through which ICL is enforced. The onus to investigate and prosecute crimes under international law in the first instance is placed upon state parties and they are required to ‘exercise their criminal jurisdiction over those responsible for international crimes’ [22] .

97. The rationale behind this appears to be threefold. Firstly, the inclusion and centrality of such a principle is another example of the ICC paying deference to principle of state sovereignty. Secondly, a single court, especially one with only limited resources would not be capable of dealing with every international crime committed around the world. Thirdly, it is also suggested that national courts may be in a better position to conduct investigations and prosecutions where crimes have been committed within their territory.

98. It is however also an important means of improving the enforcement of ICL by utilising national courts as part of the enforcement apparatus of the ICC. Accession to the Rome Statute subtly obliges states to implement the necessary legislation and to hold trials in the first instance, where crimes are committed by nationals of, or on the territory of state parties, and thus improving the judicial capacity of ICL. However, the influence of this principle is again curtailed by the fact that it only applies to states that have acceded to the ICC, and the fact that it only applies to crimes committed by a national of, or on the territory of a state party, it does not impose the inclusion of universal jurisdiction in national legislation.

(iii) Bilateral Non-Surrender Agreements

99. The jurisdiction of the ICC is further curtailed by the operation of bilateral non-surrender agreements provided for by Article 98(2) Rome Statute. This provision provides that the ICC may not request the surrender of an individual if this would require the requested state to act inconsistently with its obligations under international agreements. Therefore states that are not parties to the ICC may conclude such agreements with states that are parties, to the effect that that state is precluded from surrendering its nationals to the ICC.

100. The existence of such agreements has the effect of further limiting the ICC’s jurisdiction and impeding the ability of the ICC to get hold of individuals allowing impunity to continue and thus severely undermining its capacity to enforce ICL on a global scale. The significance of this is however somewhat limited by the fact that the judges of the ICC may determine any Article 98 agreement to be invalid and then oblige the state to comply with its obligations under the Rome Statute and surrender the suspect.

(iv) Heads of State Immunity

101. It must also be considered that the ICC does not recognise immunities for persons acting in official capacities, such as heads of state, from the jurisdiction of the Court. [23] The implementation of the Rome Statute also provides that states must change their national legislation to remove, or allow the circumvention of, any immunities previously provided for in regard to crimes over which the ICC would have jurisdiction in order that the individual can be put on trial. These are very important provisions as they reduce the ability for individuals to avoid the jurisdiction of the ICC and thus theoretically increase its effectiveness as an enforcer of ICL.

102. However, Article 27(2) Rome Statute only limits immunity with respect to the ICC’s exercise of jurisdiction. It is uncertain as to whether immunities would apply between states. Article 98(1) provides that the ICC cannot continue with a request for surrender if it would require a state to act inconsistently with its diplomatic immunity obligations under international law. However, it can be argued that given a purposive interpretation of the Rome Statute it would seem sensible that as between states which are parties to the Rome Statute diplomatic immunity agreements should be ignored in furtherance of an ICC request for surrender, but this would not be required between two non-state parties, or a state party and non-state party, as this would challenge the sovereign rights of non-state parties to conclude diplomatic immunity agreements. [24] Although such a deference to such sovereign rights are necessary, it does compromise the goal of eradicating immunity and impede the effective operation of the ICC.

(v) The ICC and Universal Jurisdiction

103. The operation of the international criminal court system and the exercise of universal jurisdiction by states are distinct means of bringing about criminal prosecutions – the legal basis for instituting criminal prosecutions is different and the processes are entirely separate. It is important to make clear that where a state is prosecuting an individual accused of committing an international crime through its domestic court system under the complementarity principle of the ICC, this is not the state exercising universal jurisdiction, but is exercising its prosecutorial function as a state party to the ICC.

104. The existence of an international criminal court was supposed to reduce the need for states to legislate for and exercise universal jurisdiction, as a central and permanent international court was supposed to take on the mantle of prosecuting and convicting those individuals that had committed crimes that were such affront to universal moral standards that they needed to be punished regardless of where the crime was committed or the nationality of the victim (such crimes are a crime against mankind and therefore the jurisdiction of the prosecution was irrelevant). However, the flaws in the operation of the ICC system leaves the door open for states to exercise jurisdiction over crimes that were committed outside of their territory and against individuals that are not state nationals.

The Prosecution of UK Military Personnel

105. UK service personnel can be prosecuted for serious violations of ICL including grave breaches of the Geneva Convention and its Additional Protocols committed during foreign military operations. UK service personnel could also theoretically be prosecuted for acts of genocide and crimes against humanity although these are highly unlikely to occur and therefore have not been given detailed consideration within this paper.

106. UK service personnel could be prosecuted for war crimes committed during armed conflicts. These crimes will usually be prosecuted by domestic military or criminal courts in the UK. The UK Geneva Conventions Act 1957, as amended in 1995, provides at section 1:

"(1) any person, whatever their nationality, who, whether in or outside of the United Kingdom, commits, or aids, abets or procures the commission by another person of a grave breach of any of the [1949 Geneva] conventions or the first [Additional] protocol shall be guilty of an offence and on conviction on indictment [shall be punished].

(2) in the case of an offence under this section committed outside of the United Kingdom, a person may be proceeded against, indicted, tried and punished therefor in any place in the United Kingdom as if the offence had been committed in that place, and the offence shall, for all purposes incidental to or consequential on the trial or punishment therefor, be deemed to have been committed in that place.

107. Furthermore, Part 5, section 51 of the International Criminal Court Act 2001 makes it an offence under domestic legislation for a person to commit genocide, crimes against humanity or a war crime. These were however already offences in existing UK legislation prior to the enactment of the International Criminal Court Act.

108. Numerous investigations have been carried out and prosecutions initiated against UK service personnel accessed of having committed war crimes. Examples of this include the recent prosecution and conviction of Marine A for the murder of an injured Afghan insurgent and the prosecution of Corporal Donald Payne who pleaded guilty to a charge of inhumane treatment as a war crime under the International Criminal Court Act 2001, in 2006. The trial of Cpl Payne was the first time that a prosecution had been initiated under the International Criminal Court Act 2001.

109. A number of UK service personnel were also been referred to the Director of Public Prosecutions after investigations into whether breaches of the International Criminal Court Act 2001, namely torture and degrading treatment, had been committed in a military instillation near Basra. In its 2005 Annual Statement on Human Rights the Foreign and Commonwealth Office stated that:

"We have made it clear that we will not hesitate to act where British troops fail to uphold the high standards of behaviour set out in the Geneva Conventions and the rest of international; humanitarian law. The individuals accused of the treatment of Iraqi civilians at a humanitarian aid distribution centre near Basra in May 2003 have stood trial and those found guilty have been sentenced" [25]

110. The ICC could theoretically prosecute UK service personnel as the ICC has jurisdiction over the nationals of states that have signed the Rome Statute and the UK is a signatory of the Rome Statute. This is however highly unlikely as the ICC’s jurisdiction to prosecute UK service personnel accused of having committed international crimes, including war crimes, would only be engaged where UK courts were unable or unwilling to carry out the prosecution by way of the operation of the complementarity principle. The Secretary of State for Defence said of this in 2003 that "it is inconceivable that the UK would ever be unable or unwilling to investigate or take appropriate action". [26]

111. UK service personnel could also theoretically be prosecuted by the courts in other states under the jurisdictional heads described above including universal jurisdiction and the passive personality jurisdiction. The application of these heads of jurisdiction are however controversial and it is highly unlikely that prosecutions will be initiated against UK service personnel by foreign courts. The practicalities of a foreign state detaining a British soldier in order to make them the subject of a prosecution also make such prosecutions unlikely. However, where there is proof that a British soldier may have committed a war crime it is very likely that the UK would request the release of that individual to face prosecution in the UK where the courts will have jurisdiction over the crime.

The Challenges created by Modern Conflicts

112. It can be said that the nature of modern conflicts and the means by which they are fought have made it increasingly likely that breaches of ICL will occur and these breaches may give rise to criminal liability albeit only in the most exceptional circumstances. One example of this is the use of unmanned aircrafts or ‘drones.’ The increasingly frequent and widespread use of drones by militaries as a weapon in armed conflict has given rise to a substantial amount of academic debate about their legality and particularly in respect of the propensity of their use to result in breaches of IHL.

113. It is suggested that when individuals are not controlling weapons at the scene where they are to be used it is more difficult to exercise professional judgment about the legitimacy of the target which can, for example, result in civilians being killed in the mistaken belief that they were combatants – a mistake which could have been avoided were the individual piloting the aircraft at the scene and therefore potentially better able to clarify the nature of the target and withdraw the engagement if necessary. It is unlikely that such a genuine mistake would amount to criminal liability for the individual controlling the aircraft, but there is ongoing uncertainty and academic debate as to the legality of the decision taken at senior command and policy level to deploy such weapons in combat situations. This is a complex issue given the military advantages that can be gained from using drones and cannot be explored in any further detail here.

114. The close combat nature of modern conflicts whereby combatants operate in and amongst civilians and in built up areas using homes, schools and other public facilities as places of refuge or bases from which to launch attacks makes targeting combatants whilst minimising civilian casualties very difficult. When conducting combat operations in such circumstances it is essential that every effort is made to ensure that targets are verified as enemy positions and not merely civilian infrastructure. Military strikes must also be incisive and precise and military commanders must be sure that such attacks do not amount to indiscriminate attacks on civilian populated areas and do not result in civilian casualties which are disproportionate to the military objective to be achieved.

115. The ability of the military personnel to clearly distinguish between combatants and civilians during conflicts is also made more difficult when forces are fighting non-traditional enemy armies such as insurgent or militia groups. Combatants from these groups do not always wear army uniform and can be ill equipped and as a result can be mistaken for civilians. This is a tactic used by such groups to avoid detection and also to launch ambush attacks against opposing forces. The result of this is that civilians may be mistaken for enemy combatants and such attacks may occur more frequently if soldiers are conscious that the combatants may be disguised as civilians.

116. The brutal and protracted nature of conflicts of late, including Iraq and Afghanistan in which insurgents have attacked British troops in the most horrific ways and with total disregard for the rules of engagement and without any sense of humanity, have the potential to inflict significant psychological damage on military personnel particularly where they have witnessed colleagues and friends being killed in the most awful circumstances and in the most brutal manner. This, in the most extreme circumstances, can result in acts of unlawful violence being committed against enemy forces in contravention of IHL.

117. Discussing the recent conviction of Marine A for murdering an injured insurgent in Afghanistan, Professor Michael Clarke, Director of the Royal United Services Institute, stated in an interview with the BBC that "increasingly, the conditions of modern counter-insurgency make these events more frequent than we would like to believe and events a bit like go on and it’s very hard to say that this isn’t somehow intrinsic to the nature of counter-insurgency on the ground". [27]

118. It is therefore essential that troops on the frontline and those who have returned from active duty and especially those who are likely to be returned in due course have access to high quality mental health and support services to ensure that those individuals who appear to vulnerable and in need of assistance have their mental health monitored to ensure that they are not put in a combat situations that they are not fit to deal with and which could lead to them committing crimes.

119. It is also essential that military personnel of all ranks continue to be provided with extensive and high quality training on the rules of engagement as well as the potential consequences of egregious breaches of those rules, so that individuals are aware of the standards that are expected of them and the consequences of choosing to disregard their responsibilities. The UK forces have a strong tradition of acting in accordance with the Geneva Conventions and IHL and individuals are provided with high quality training and education. It is essential that this continues and is regularly updated to take in account the ever-changing nature of armed combat.

120. It is imperative that this training is provided to both senior commanders as well as lower ranking soldiers who are active on the frontline as both individual and tactical decisions can result in breaches of IHL and potential criminal liability under ICL. It is important to recall that senior military officials can commit war crimes by ordering attacks or military strikes that amount to war crimes even if they do not directly take part in the military operation by "pulling a trigger".

121. It is obvious that not all of the enemy combatants that British troops will face will comply with the rules of engagement and some will have complete disregard for them. This is however not an excuse, legal or moral, for British troops to disregard the relevant rules. It is essential that British troops comply with IHL in all situations and irrespective of the enemy’s commitment and adherence to the rules of war.

122. Finally, the UK is a moral authority within the international community and this gives the UK government enormous leverage when conducting international diplomacy and contributes to our soft power. However, if British soldiers were to be known as violators of the laws of war this could have a significant detrimental impact on the UK’s external image and compromise its diplomatic power.

Concluding Remarks

123. This report has comprehensively set out the legal protections and obligations on UK armed forces personnel at home and abroad and the effects of universal jurisdiction and international criminal law.

124. When deployed at home, the armed forces are obliged to comply with domestic civil and criminal law. As agents of the state, they are also bound to comply with human rights standards and if they breach these then the government could be held accountable for this. These human rights provisions also apply extraterritorially in some situations abroad so it is important that the army use caution when acting abroad so as not to breach international human rights law unintentionally. The UK has had problems in the past with being held accountable for human rights abuses in Iraq so this is a more pressing matter for our forces than for any other state in Europe.

125. Whether deployed at home or abroad the most important obligation upon the armed forces is to comply with IHL as contained in the Geneva Conventions. When party to an armed conflict UK soldiers must respect these rules at all times and in turn it will be expected that they will be protected by them also. It is imperative that soldiers know these rules and know how and when to apply them so as to distinguish between combatants and civilians and prevent unnecessary suffering.

126. If UK soldiers breach any of these rules, they are liable to face prosecution under ICL. Any country has the potential to bring criminal proceedings against individual’s accused of having committed international crimes, including war crimes, if they have jurisdiction. The concept of universal jurisdiction means that soldiers could be indicted by any country for crimes such as genocide, war crimes and crimes against humanity and face prosecution there. The effect of this is that states no longer have to respect the sovereignty of states over their own army and could mean that the UK is denied the right to prosecute their own soldiers for any wrongdoing, unless the UK has a prior agreement with the state in question.

127. The establishment of the ICC brings forward a new basis of jurisdiction for war crimes, crimes against humanity, genocide and, in the future, aggression. UK soldiers are however unlikely to be the subject of an ICC prosecution as the UK will always be able and willing to prosecute soldiers who are accused of committing international crimes. This does not however mean that the ICC should be ignored completely. Our soldiers are bound to comply with the provisions in the Rome Statute and if they breach them, they could face individual criminal charges.

128. Finally, the modern nature of armed combat including close-combat and counter-insurgency has created new challenges for military personnel in respect of complying with IHL and has made it more likely that war crimes will be committed during combat. It is therefore important that the training on IHL and ICL that UK military personnel receive is updated to take account of the ever changing challenges and difficulties that service personnel will face whilst on active duty. Regular and comprehensive training will serve to ensure that the propensity for breaches of IHL to occur is limited to the greatest possible extent.

129. This concludes the Humanitarian Intervention Centre’s report on ensuring legality and legitimacy for UK armed forces personnel in future operations. The Centre would like to highlight the importance of ensuring compliance with the Geneva Conventions, international human rights law and international criminal law when developing a new legal framework for future operations.

December 2013


[2] Prosecutor v Dusko Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) ICTY 1995, para 70

[3] The principles and their commentary can be found here: (last viewed 27 th November 2013)

[4] ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities, 2009 (available at: )


[5] Decision as to the admissibility of Application no. 52207/99 of 12 December 2001 (Grand Chamber) in the case Bankovic and Others v. Belgium and 16 Other Contracting States

[6] Al-Skeini and Others v. The United Kingdom Application no. 55721/07

[7] Prosecutor v Dusko Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) ICTY 1995, para 94

[8] Article 8 (2) RS

[9] Article 2 Genocide Convention, Article 6 RS and it is provided for in customary international law


[11] UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984

[12] Article 1 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[13] K. Hausler, N. Urban & R. McCorquodale, Protecting Education and Insecurity in Armed Conflict: An International Law Handbook, page 64 – available at (last accessed 03 December 2013)

[14] Cassese, ‘Balancing the Prosecution of Crimes against Humanity and Non-Retroactivity of Criminal Law: The Kolk and Kislyiy Case before the ICJ’, (2006) 4 Journal of International and Comparative Justice 410-418.

[15] Trial of the Major War Criminals before the International Military Tribunal, Nürnberg, 14 November 1945-1 October 1946, published at Nürnberg, Germany, 1947, 223

[16] International Military Tribunal Charter at 223

[17] UN Secretary General Mr Kofi Annan at the UN Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 15 June-17 July 1998, Rome, Italy.

[18] Statute of the International Criminal Court Article 12 (2)

[19] M.N. Shaw, International Law, (6th Ed, Cambridge, Cambridge University Press, 2008), 412

[20] UN Treaty Collection, available at (last accessed 03 December 2013)

[21] C. Hale, ‘Does the Evolution of International Criminal Law End With the ICC? The "Roaming ICC": A Model International Criminal Court for a State Centric World of International Law’, (2007) 35 (3) Denver Journal of International Law and Policy 429, 430

[22] H.P. Kaul, ‘International Criminal Court: Current Challenges and Perspectives’, (2007) 6 Washington University Global Studies Law Review 575, 578

[23] Article 27 (2) Rome Statute

[24] D. Akande, ‘The Jurisdiction of the International Criminal Court over Nationals of Non-Parties: Legal Basis and Limits (2003) 1 (3) Journal of International Criminal Justice 618, 641 – This however only applies to immunity ratione personae, it does not apply to immunity ratione materiae

[25] The Foreign and Commonwealth Office, Human Rights Annual Report 2005, Cm 6606, July 2005 pg 183 in (last accessed on 01 December 2013)

[26] Written answer by the Minister of State for Defence, Hansard, 28 January 2003, Vol. 398


Prepared 7th January 2014