UK Armed Forces Personnel and the Legal Framework for Future Operations

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 this...do 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