Human Rights Monitor
The first trial of British soldiers for war crime
Scope of making the trial a comprehensive one
Sharin Shajahan Naomi and Amit Shankar Singh Rajpoot
Waves of anti-war sentiment are so strongly slashing on the shore of Britain that no option has been left for the Blair government to do something which at least can minimise the flames of fire of hatred gathering in the minds of the people. The barbaric treatment of the people within the jails of Iraq and also outside by UK soldiers, are adding fuel to the fire and making the failure of war more evident. Perhaps that's why the Attorney General Lord Goldsmith let the press know that for the first time , British soldiers are going to face war crime charge under the ICC (International Court of Criminal Procedure) (The Guardian, 20 July 2005). Amnesty International's and other journalists' reports are clearly indicating what is going on in Iraq. The killing of innocent people and torture of the detainees' are not matters to be overlooked. To prevent the fall of reverence towards British government of the world community, the British authority has kept International Criminal Court Act 2001 of UK stand by to deal with the crimes committed by British soldiers.
This Act has its genesis in Article 1 of the Rome Statute which states, the court "Shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions."
The principle of complementarity signifies that the states that are party to the Rome Statute have an obligation to incorporate in domestic law those violations of international law set forth in the Statute. The Court is confined to trying in The Hague only those violations that a home State is unwilling to prosecute. Article 17 of the Rome Statute determines the admissibility of the case based on unwillingness or inability on the part of the sate to prosecute and investigate the case.
Britain as a signatory to the Rome Statute has commitment to the prosecution of crimes under the jurisdiction of the ICC, and allows British courts to act as an extension of the ICC by trying violations of the Rome Statute in domestic courts through ICC Act passed on 2001.
In ICC Act of 2001 the definition of War Crime has been adopted from Rome Statute. Article 8.2 of the Rome Statute specifying war crime as grave violation of Geneva Conventions against the person or property protected through some criteria namely, torture, wilful killing etc. No doubt torture of the detainees' will dominator the alleged cases . Torture has been committed against the people addressed as 'Detainee' 'enemy combatant' . Detainee's status has not yet got an unanimous standard as a prisoner of war or protected person. (Articles 13 and 14 of the Third Geneva Convention relative to the treatment of prisoners of war, of 12 August 1949. Articles 27 and 32 of the Fourth Geneva Convention relative to the protection of civilian persons in time of war, of 12 August 1949).
The International Redcross statement is very clear in this regard. "Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, [or] a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can fall outside the law." Canada is now far ahead having prisoner of war status determination regulations. This is the most appropriate time for British court to determine this factor so that not a single soldier could take the advantage of the lacuna of the law to fulfil his vulgar thrust against the detainee's believing the nebulous notion that detainees covered with the term "enemy combatant" are not included in protected person or prisoner of war. After that another important question comes -- should the blame of this War Crime fall on the shoulders of the poor British soldiers who are doing nothing but the duty under the order of the British government? Article 27 of the Rome Statute has not even exempted the head of the state from the responsibility and the immunities are being thrown off in the way to prosecute the head of the state, officials, member of the parliament for enforcing this law. Article 27 of Rome Statute is unequivocally says-
'(1) This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State, a member of a government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself constitute a ground for reduction of sentence.
(2) Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such.'
It is really difficult to believe that without the backing and knowledge (or not to bother despite the knowledge that torture is going on is also backing) of British Government the torture is continuing on Iraqi detainees. Thanks to British media which have explored the brutish stories behind the jail and compelled the British government not to be indifferent. Well, taking only small part from the war crimes (British soldiers are being charged for manslaughter, inhuman treatment with detainees and internees and unlawful killing), Britain has made the trial for the violations of International Humanitarian Law non-comprehensive. There are many war crimes going on like -- extensive destruction and appropriation of property, not justified by military necessity --, intentionally directing attacks on civilian objects etc. In fact there are huge examples in the hands of media, also in the report of Red Cross and Amnesty International, of these allegations. The first trial for war crime can easily include such crimes.
If the British soldiers can be prosecuted for War Crime why they should not be for Crime against Humanity? The answer is not so tough. It is very easy to prosecute some British soldiers for committing torture against some Iraqis in the jails and not paying attention to the higher level as it is almost impossible to prove that they have not given any specific order for such behaviour. But if you stretch crime against humanity, you have to point out some words systematic attack, widespread attack, attack with knowledge or some particular knowledge and then will come how 20,000 people have been killed during this war.( The figure is not confirmed exactly -- taken from the websies -- action against war, February 2005. BBC news 29 Oct, 2004 emphasises on a study which claimed 37,000 civilian deaths caused.)
" On April 1, the residential al-Hilla outskirts of Babylon were hit with an undetermined number of BLU-97 A/B cluster bombs. Each bomb releases 202 bomblets which scatter over an area the size of two football fields, with a dud rate of 5%-7%. Immediate reports stated that at least 33 civilians died and around 300 were injured in the attack. Amnesty International condemned the attack, saying that "the use of cluster bombs in an attack on a civilian area of al-Hilla constitutes an indiscriminate attack and a grave violation of international humanitarian law." Independent reporter Robert Fisk wrote from al-Hilla, saying that many dud bombs landed, and remain, inside civilian homes."(Simon Helweg Larsen, April 07, 2003.)
The British Ministry of Defence said on April 3 that RAF Harrier jets had dropped RBL755 cluster bombs on unspecified locations in Iraq. These bombs scatter 147 bomblets, and have a 10% rate of failure. Britain has also admitted that it has also fired cluster munitions on Basra. These examples are indicating one thing that no explosive weapons which killed people at random were put without the green signal of the British government and military leaders. The ingredients for crime against humanity have been met up as nothing has been left to cover up a systematic or widespread killing of civilians "the concept of systematic may be defined as thoroughly organized and following a regular pattern on the basis of a common policy involving substantive public or private resources." (Prosecutor v Akayesu, Sep 2, 1998, para 579)
Perhaps the risk of trapping within these legal boundaries, the British government has wished to stay away from this crime against humanity to save themselves. If they really feel they are obliged by the spirit of Rome Statute ,if they are determined "to put an end to impunity for the perpetrators of this crime and thus to contribute to the prevention of such crimes" they can at least begin an investigation against the perpetrators for such crime however high official rank may they have.
Though some anti-war campaigners and Islamic parties are shouting for labeling the term Genocide against the soldiers, but to apply genocide in real sense is really a hectic task. Are the British troops committing crime with the intent to destroy in whole or part a national, ethical, racial or religious group of Iraq? If it can be proved that the British soldiers are killing or causing serious bodily and mental harm or causing physical destruction or preventing birth or forcibly transferring children particularly of Sunni group, or BATH party, then allegation for genocide can be proceeded otherwise it will be only mere claim.
On 12 February, the video tapes of the violent character of some British soldiers in resisting a protest in southern Iraq have come before the whole world through "news of the world". The aftermath reaction of this scenario will be devastating for Britain's image. But we also cannot be so biased to the British soldiers that we should forget under what type of suffocating circumstances the British soldiers have to go through in Iraq where every moment the threat of death by unsuspected bombast is lurking. The first trial of the British soldiers for violating International Humanitarian Law is appreciable and an pragmatic step but much option still has been left to make it a perfect example of allegiance to wards Humanitarian law.
The authors are studying in law department, University of Dhaka and Hidyatullah National Law University, India.