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