Willful Blindness of the British to International Law?

File:Royal Marine from 42 Commando on Patrol in Afghanistan MOD 45153167.jpg

And cue the protest and demands for leniency for a murderer. Out of the zealous, bordering on aggressive, national militarism that has grown to play a prominent role in British politics is spawned articles and petitions calling for leniency on, or even the immediate release of, the anonymous ‘Marine A’ of the British Army who faces a life sentence for firing a 9mm bullet at close range into the chest of an injured, unarmed man, his identity still unknown to the British authorities.

The Telegraph leads the media campaign for leniency, with even that bastion of lefty sentimentality, The Guardian, dedicating column inches in defence of a convicted murderer. Trawling the cesspool of social media, there is a worrying trend of opinion that this is acceptable behaviour. The cognitive dissonance, or even marginal racism, of the trend is noteworthy – one could imagine the bloodthirsty outrage should the roles of marine and captive had been reversed – and the ignorance of international criminal law is compelling.

At the core of the calls for leniency is often found the justification that the ravages of war mitigate any actions soldiers may take, but this view rests on the false assumption that ‘Marine A’ was judged on domestic degrees of murder. ‘Marine A’ was instead judged against universally accepted minimum standards of armed conflict.

It is no new insipid, left wing, neo-liberal nonsense that soldiers are to be forbidden from killing participants of armed conflict who are ‘hors de combat’ – that’s those who are no longer playing a part in hostilities such as the injured or the captured. It is a long established principle of war, most recently reiterated in the 1977 Protocol I Amendment to the Geneva Conventions of 1949.

The evidence, a video and sound recording of the horrific incident, is undeniable and establishes not only that ‘Marine A’ broke the law but knew that he was doing so. After firing the fatal shot, ‘Marine A’ turned to his brothers in arms and incriminatingly made clear to them that knowledge of this murder wasn’t to “go anywhere fellas. I just broke the Geneva Convention.”

Yet, not only does ‘Marine A’ deserve his sentence – it would have been licentious if any lesser sentence been given – but there is a good case for concluding that justice had not been fully dispensed. The court marshal board delivered a decision which will seem incredulous to any proper court even moderately acquainted with international criminal law. Marines ‘B’ and ‘C’ were acquitted, free to return to active service.

‘Marine C’ walks free despite his initial suggestion to shoot the victim in the head and his expression of disappointment that ‘Marine A’ got to take the fatal shot and not he. In light of these actions, the British army disciplinary system sees it fit to give this man back his gun. Likewise to ‘Marine B’ who stood by and offered up no protest to this war crime and failed to report it. Not only did the board display a disconcerting willingness to allow the rearming of men involved in such an incident and not to convict them for such behaviour but also, worryingly for the position they hold, a deficiency in their awareness of international criminal law.

The Trial Chamber for the International Criminal Tribunal for the former Yugoslavia has laid out its view of the law of armed conflict in Tadić; that ‘aiding and abetting includes all acts of assistance by words or acts that lend encouragement or support, as long as the requisite intent is present.’ Further, the Vasiljević trial chamber asserted that an individual incurs responsibility for the crime if ‘the accused carried out an act which consisted of practical assistance, encouragement or moral support to the principal offender of the crime.’ Other trial chambers, such as those in Furundzija and Kunarać, Kovać and Vuković support this stance.

The International Criminal Court has strengthened the law in this area by reiterating in the Taylor Judgement that an accused who participates in a ‘common plan, design or purpose’, takes part in a Joint Criminal Enterprise and is responsible for the crime even if they did not carry out the principle criminal act. The Chamber reinforced the notion that criminal responsibility through participation in a Joint Criminal Enterprise is established customary international law. Drawing on previous jurisprudence, the Chamber noted that ‘[t]he plan need not have been previously arranged or formulated, but may materialize contemporaneously’, that ‘it is not required that the Accused’s participation in the common plan is necessary or substantial, but must have made at least a “significant” contribution to the common purpose’ and that that Includes prompting another to act in a particular way.

How the words and actions of ‘Marine C’ can be seen as anything other than fulfilling the elements of a war crime is bewildering yet it is unsurprising that he walks free. The UK justice system is meant to compliment the work of the International Criminal Court and, since the signing of the Rome Statute, the former is obliged to uphold the law as practiced by the latter. And yet in a week that has cast light on the British Army’s killings of unarmed civilians in Northern Ireland we are reminded that the case of ‘Marine A’ is not isolated. The British Army commits war crimes and, looking at the evidence, the price criminal soldiers pay is small, if not nonexistent.

After an Iraqi detainee died after ‘interrogation’ from 93 injuries, Donald Payne was charged with manslaughter and inhumane treatment and found guilty of the latter, attracting the sentence of a mere 12 months in prison. Six other soldiers were acquitted due to a lack of evidence resulting from, as the judge put it, a ‘closing of ranks’.

Praise comes easy on these British Isles for those fighting wars in our name. Worryingly, however, such forthcoming praise, a manifestation of the national militarist epidemic, seems to cloud judgement on those who commit the most heinous crimes. Uncritical attitudes allow crimes to be brushed over, institutionally covered up without question, and for those who should have been found guilty of murder to return to active service. The murder of an unarmed Afghan is just as abhorrent as the murder of a British civilian and the fog of war is not a mitigating factor.

Benjamin F. Owen







Photo: LA(Phot) Dave Hillhouse/MOD 




United States President Addresses General Assembly

Because the Guantanamo Bay detention camp, or Gitmo as it has become affectionately known, is not built in the land of the free, the United States of America does not have any responsibility to protect the unfortunate souls who remain incarcerated within its walls. That is the crux of the legal argument, the US claimed before the UN Human Rights Committee, which allows its agents to detain in Gitmo anyone they like without trial, without charge, indefinitely, and to carry out against those detainees enhanced interrogation techniques, euphemistically known amongst poets and pseuds as ‘torture’.

Having ratified the International Covenant on Civil and Political Rights (ICCPR), one would expect that such provisions as Article 7 (no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment) and Article 14 (everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law) would prohibit the US from carrying out such behaviour. Except, as with most things in international law, things aren’t so clear cut.

The US argues that the ICCPR precludes the people it incarcerates in Gitmo. Of all the provisions in the 7,000 word document, the United States’ legal argument rests on one solitary three letter conjunction.


This single word is what the US claims justifies the legality of imprisoning children as young as 13, is what justifies holding someone for 11 years without charge, and is what justifies the force feeding of the 100 inmates now on hunger strike in response to their predicament.

Article 2 of the ICCPR states ‘Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory AND subject to its jurisdiction the rights recognized in the present Covenant’.

Whether the US fulfils both these criteria rests on a dusty, century old treaty. Article 3 of the Agreement between the United States and Cuba for the Lease of Lands for Coaling and Naval Stations, signed on 23 February 1903, states

‘While on the one hand the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the above described areas of land and water, on the other hand the Republic of Cuba consents that during the period of the occupation by the United States of said areas under the terms of this agreement the United States shall exercise complete jurisdiction and control over and within said areas.’

So whilst the US admits that there is no doubt that those fathers, uncles, husbands, brothers and sons are all firmly under the jurisdiction of the United States, they insist they are not under obligation to respect or ensure their human rights as they are not sovereign over the territory as well. Cuba does not have responsibility either. They have signed but not ratified the ICCPR although it matters little as the 1903 treaty states that they are sovereign over the territory, but do not have jurisdiction over it, again failing to fulfil the criteria set out in Article 2 of the ICCPR.

The Human Rights Committee attempted to plug this legal loophole by stating that, in fact, the correct interpretation of Article 2 is that States are ‘to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction.’ Yet it is questionable whether this is consistent with Article 31 of the Vienna Convention on the Law of Treaties which demands a treaty be interpreted ‘with the ordinary meaning to be given to the terms of the treaty’.

Conversely, one may be entitled to ask whether the United States’ interpretation is in line with the article’s other demand, that the ‘treaty shall be interpreted… in the light of its object and purpose.’

The realpolitik of the current situation has however rendered the Committee’s hole plugging attempts about as effective as moving the sofa to cover a stain on the carpet. The US has justified itself and does as it wishes. At the end of April, Barack Obama promised to close Guantanamo, but it’s all been heard before, back in 2008, in fact. As the number of prisoners having feeding tubes shoved agonizingly up their noses increases, Obama’s words seem increasingly hollow as he speaks only of the best interests of America, rather than of the best interests of Gitmo’s prisoners.


Benjamin F. Owen












How do you solve a problem like Syria?

UN Observers Document Damage Done by Recent Shelling in Homs

They died twitching, hallucinating and choking on white froth that poured from their noses and mouths. Their doctors believe that they were killed by nerve gas.

–          Anthony Loyd – Aleppo – The Times – 26 April 2013

Isopropyl methylphosphonofluoridate is a thoroughly rotten substance. Discovered accidentally by the ‘father of the nerve agents’, Gerhard Schrader, in 1938 Nazi Germany, it has since grown in notoriety under the common name Sarin. So much so, that 188 States have ratified a UN convention prohibiting its use and production. States that have not ratified it? Angola, Egypt, Israel, Myanmar, North Korea, Somalia, South Sudan and the State in which Yasser Yunis’ family died hallucinating, foaming at the mouth, twitching – Syria.

If true, the master of rhetoric, Barack Obama has called the reports of the use of chemical weapons in Bashar al-Assad’s civil war with the Syrian rebels a ‘game changer’, hinting at intervention in the divided country. Intervention in another State’s affairs, however, is not a game.

The Malians are feeling the effects of the intervention in Libya, which, in the resulting power vacuum, rendered Muammar Gaddafi’s stockpiles of arms free to just about anyone in the region with marauding or Jihadist tendencies. The French now find themselves in the awkward position of fighting alongside an unelected government installed after the 2012 military coup. But were the international community supposed to just sit back and watch the slaughter of the people of Benghazi, just as they did when an unknown number (they lost count after half a million) of Tutsis were shot, bulldozed, raped and macheted to death in 1994?

Although military intervention has been an option open to the UN Security Council under Chapter 7 of the UN Charter since its 1945 inception, there have been reservations as to when Chapter 7 powers are to be used.  Humanitarian military intervention, as such interventions have become known in the international discourse, has become increasingly acceptable, the principle strengthened somewhat in the 1990’s by the UN/NATO intervention in Bosnia and Bill Clinton’s intervention (albeit it unauthorised by the Security Council) in Kosovo. Strengthened, maybe, but still controversial.

Humanitarian intervention is being built as an extension to the principle ‘responsibility to protect’, the principle that States should protect their own citizens from human rights abuses. ‘Responsibility to protect’ is beginning to tend towards meaning a responsibility towards all peoples by the entire international community. But this is an erosion of the principle of State sovereignty, a State’s right to conduct its own affairs without interference, a central tenet to international relations. It is a principle that was crucial to the creation of, what we call today, ‘international law’.

Kofi Annan asked the question in 2000, ‘if humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica – to gross and systematic violations of human rights that offend every precept of our common humanity?’ The International Commission on Intervention and State Sovereignty was formed to answer that question. It answered thus: ‘The defence of State sovereignty, by even its strongest supporters, does not include any claim of the unlimited power of a State to do what it wants to its own people.’

The answer failed to put the question to bed. Although the Commission argued military humanitarian intervention was acceptable, it failed to come to any robust conclusion as to on what conditions.

So what is to be done about Syria? It is a question that has been asked for over two years now. For US senator John McCain, the ‘red line’ has been crossed, a red line a Times editorial headline accurately described as ‘thick’. There seems to be the feeling that decision time is upon our august and tenacious leaders. And because things aren’t complicated enough already, questions have been raised about the reliability of the evidence that Assad used chemical weapons.

One option is to intervene, bombing the murderous Assad and his cronies into the Syrian dust, liberating a nation into a glorious new era free from oppression. But that is an option that, in the complex power situation, would potentially empower far right Islamist factions which would spell further human rights violations in the future. Or do the international community sit back and let the conflict come to its natural conclusion? Let the civilians twitch and foam, let them continue to be murdered and hope that it all blows over. Answers on a postcard…

Benjamin F. Owen