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War crimes allegations and the UK: towards a fairer investigative process

Published online by Cambridge University Press:  22 January 2020

Andrew Williams Open the ORCID record for Andrew Williams [Opens in a new window]
Andrew Williams*
Affiliation:
University of Warwick, Warwick, UK
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*Author email: [email protected]
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Abstract

War crimes allegations have dogged the UK military for decades. Yet there is no settled process to deal with them. Different legal responses deployed have all suffered from complaints of unfairness. This paper proposes foundations for a more satisfactory approach based on an existing three-part consensus. First, that norms governing individual and systemic conduct in military conflict are relatively undisputed; secondly, that the state has a non-negotiable investigatory duty should a suspected breach occur; and thirdly, that any investigation should take into account the context within which it is conducted. The paper then advances three propositions: (1) first order principles of practicability, expertise, and investigator independence should provide the non-negotiable foundations of any response; (2) second order or subsidiary principles including promptness, adequacy, reasonable transparency, and respect for basic standards of natural justice should apply when practicable; and (3) a standing institution designed to comply with the first and second order principles would provide a fairer process for all participants (accused, victim and the wider national and international communities) whilst also fulfilling coherence and legal certainty requirements. The paper concludes that current structures cannot fulfil these demands and it explores the basis for a better alternative.

Keywords

public lawwar crimesaccountabilityinvestigationsfairness
Type
Research Article
Information
Legal Studies , Volume 40 , Issue 2 , June 2020 , pp. 301 - 320
Copyright
Copyright © The Society of Legal Scholars 2020

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Footnotes

†

I am grateful to Victor Tadros, Owen Thomas and Victoria Basham and the anonymous reviewers for their comments on earlier drafts of this paper and suggestions for improvement.

References

1 I have outlined elsewhere failures of public law vis-à-vis the rule of law and human rights specifically in relation to the Iraq allegations. See A Williams ‘The Iraq abuse allegations and the limits of UK law’ (2018) Public Law 461. See also C Ferstman et al ‘The UK military in Iraq: efforts and prospect for accountability for international crimes allegations?’ 1 October 2018 available at https://www1.essex.ac.uk/hrc/documents/THE_UK_MILITARY_IN_IRAQ_1Oct2018.pdf.

2 I use the term ‘war context’ throughout to encompass internal and international armed conflicts as defined by international humanitarian law, and sustained military deployment that results in deliberate killing and ill-treatment. Although highly contentious, I accept for the sake of argument (and given the ongoing investigations into legacy crimes committed by both paramilitary and UK armed forces personnel) that the Northern Ireland ‘Troubles’ should fall within this definition. The character of that conflict as a sustained deployment of military forces plausibly falls within the ‘war context’ as I have described it.

3 In 2018, the House of Commons Defence Committee launched an inquiry into how investigations against service personnel could be subject to a statute of limitations. Analysis of a public consultation by the Northern Ireland Office into this proposal was published in July 2019 (see https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/814805/Addressing_the_Legacy_of_the_Past_-_Analysis_of_the_consultation_responses.pdf). The original proposal follows a long tradition of political opposition to war crimes investigations. See for instance concern regarding police enquiries into allegations of unlawful killing in the Falklands War and the delay in resolving them: ‘Falklands War Crimes Investigation’ Hansard HL Deb, vol 554, cols 1006–1009, 3 May 1994.

4 The term ‘war crimes’ reflects the condemnation not of killing per se, even of civilians, but of killing that transgresses the limits placed on the conduct of war. In this, they are not simply domestic crimes redefined for a different context. The war crimes norm also reflects its potential systemic quality in each and every alleged violation. All war crimes provoke collective responsibility if patterns of repetition show acquiescence or command in their committal or in the failure to prevent or punish.

5 The purpose of the criminal justice system and punishment remains the subject of much debate at both national and international level. This does not affect the need to establish the truth of any allegations. It would be relatively uncontroversial to claim that there is a moral duty to investigate serious wrongdoing accurately and fairly and hold those responsible to account across models.

6 Although my focus is on the UK experience, I acknowledge that other states face similar issues. For instance, New Zealand has questioned the appropriateness of its accountability processes in the light of allegations concerning specific operations in Afghanistan. The Inquiry into Operation Burnham (which resulted in the deaths of several Afghan civilians) was launched in 2018: see https://operationburnham.inquiry.govt.nz/.

7 The Stormont House Agreement 2014 at para 30 provided for the creation of a Historical Investigations Unit, to be a ‘new independent body to take forward investigations into outstanding Troubles-related deaths’ compliant with Art 2 ECHR requirements. It also agreed that an Oral History Archive and an Independent Commission on Information Retrieval would be instituted to deal with the past.

8 India, Turkey, Pakistan, the USA, Israel and Iran have not ratified Additional Protocol I.

9 See Art 85 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Additional Protocol I) 8 June 1977.

10 Art 8 of the Rome Statute of the International Criminal Court 1998 (Rome Statute) includes specific reference to wilful killing, rape, torture, inhuman treatment, depriving protected persons of a fair trial and intentional acts targeting civilians amongst many other offences.

11 See the Armed Forces Act 2006, s 113(1).

12 Command responsibility is reflected in the ICC Act 2001, s 65 in the UK.

13 For a sustained review see Nollkaemper, A and van der Wilt, H (eds) System Criminality in International Law (Cambridge: Cambridge University Press, 2009)CrossRefGoogle Scholar.

14 Draft Articles on Responsibility of State for Internationally Wrongful Acts 2001.

15 See the Armed Forces Act 2006, s 117.

16 See Williams, above n 1.

17 For instance, in relation to detention practices during the occupation of Iraq 2003–2009, the decision in Ali Zaki Mousa (No 2) reserved the scrutiny of credible systemic wrongdoing to Parliament; see Ali Zaki Mousa & Others v Secretary of State for Defence (No 2) [2013] EWHC 1412 (Admin) at [224].

18 See SIWG reports available at https://www.gov.uk/government/collections/review-of-systemic-issues-arising-from-military-operations-overseas-index.

19 The John Stalker examination (and that of his successor Colin Sampson) into the ‘shoot to kill’ policy allegedly operating in Northern Ireland by the security forces in the early 1980s has never been made public.

20 On damages paid for alleged abuses, see, for instance, claims relating to Cyprus at https://www.theguardian.com/world/2019/jan/23/britain-to-pay-group-of-greek-cypriots-1m-after-claims-of-human-rights-abuse.

21 See Defence Committee: Statute of Limitations – Veterans protection inquiry – Scope of the Inquiry available at https://www.parliament.uk/business/committees/committees-a-z/commons-select/defence-committee/inquiries/parliament-2017/inquiry13/.

22 Rome Statute, Preamble, para 6, above n 10.

23 The International Court of Justice Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (8 July 1996) paras 24–25 held that international human rights do not ‘cease in time of war’. But it also accepted that ‘whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the [UN Covenant on Civil and Political Rights], can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself’. There remains considerable dispute as to whether all human rights can plausibly or legally continue to apply in war. If not (on practical grounds), then that leaves open the question of which rights across the civil, political as well as economic, social and cultural spectrum, can or should be dispensed with.

24 The rule stems from provisions of various IHL instruments, including Art 121 Third and Art 131 Fourth Geneva Conventions 1949.

25 Rome Statute, Art 17(1)(a), above n 10.

26 Former Attorney-General, Jeremy Wright QC, commented to the House of Commons Defence Committee ‘we must be aware of the fact that if we are not demonstrating to the ICC that we are investigating these matters properly, the chances of the ICC deciding to do it for us are very much increased. It seems to me that that situation is best avoided’: Q186 Oral Evidence 19 October 2016 available at http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/defence-subcommittee/mod-support-for-former-and-serving-personnel-subject-to-judicial-processes/oral/41503.html.

27 Ministry of Defence Joint Service Manual on the Law of Armed Conflict 2004 para 16.1.2.

28 See McCann and Others v United Kingdom, ECtHR, App No 18984/91 at paras 149–150 (27 September 1995), where the ECtHR held that deprivations of life must be subject to ‘the most careful scrutiny, particularly where deliberate lethal force is used, taking into consideration not only the actions of the agents of the State who actually administer the force but also all the surrounding circumstances including such matters as the planning and control of the actions under examination’.

29 Art 15(2) European Convention on Human Rights 1950 provides ‘No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision’.

30 House of Commons Defence Committee, ‘Who guards the guardians? MoD support for former and serving personnel’, Sixth Report of Session 2016–17 (TSO, 2017) HC 109, which concluded (inter alia) ‘As a nation we expect our servicemen and women to conduct themselves at the highest levels of professionalism on operations. Where the rule of law is broken, justice must be done in military as in civilian life’.

31 See the Armed Forces Act 2006, s 113(1) and (2), which provide that any unit Commanding Officer must inform the service police of an allegation ‘as soon as is reasonably practicable’ if it would ‘indicate to a reasonable person’ that a serious offence has been committed (the list of offences includes war crimes in Schedule 2 to the Act).

32 See Al-Skeini and Others v The United Kingdom (Grand Chamber), ECtHR, App No 55721/07, para 164 (7 July 2011).

33 Report no E/CN.4/2006/53 on Extrajudicial, Summary or Arbitrary Executions (8 March 2006) at para 36.

34 See above n 33.

35 What is practicable for armed forces in fulfilling any duty has been a relevant consideration in many court analyses. For instance, in Alseran and Others v Ministry of Defence [2017] EWHC 3289 (QB) 14 at para 356 when assessing the UK's responsibilities regarding detention practices, Mr Justice Leggatt stated ‘it is also necessary to recognise the practical exigencies of the situation which confronted HM Forces at the time, and to endeavour to apply the Convention in a manner which is feasible in the real world’.

36 Doswald-Beck, L ‘The right to life in armed conflict: does international humanitarian law provide all the answers?’ (2006) 88(864) International Review of the Red Cross 881CrossRefGoogle Scholar. Mark Osiel, for one, disagrees. See his The End of Reciprocity: Terror, Torture, and the Law of War (Cambridge: Cambridge University Press, 2009) p 127 ffGoogle Scholar.

37 Prosecutor v Duško Tadić (Jurisdiction of the Tribunal) ICTY Case No IT-94-1-AR72 (2 October 1995) decided that an internal armed conflict would be called such where it satisfied requirements of sufficient duration, intensity and degree of organisation of the non-state actors engaged.

38 Though this may be generally true, there would still be scope to assess any killing as unlawful if it breached the principle of inflicting unnecessary suffering or other rules preventing a policy of ‘no quarter’ or the killing of combatants hors de combat. See, in particular, Arts 35(2), 40 and 41 Additional Protocol I, above n 9.

39 Isayeva, Yusupova and Bazayeva v Russia, Judgment of 24 February 2005, at 209–213.

40 These principles have been recognised more widely in the Inter-American Court of Human Rights and the UN Human Rights Committee. See discussion in Report of the United Nations Fact-Finding Mission on the Gaza Conflict A/HRC/12/48 25 September 2009 paras 1804–1810.

41 See for instance Hugh Jordan v United Kingdom, App No 24746/94 at para 109 (4 May 2001).

42 UN Human Rights Office of the High Commissioner The Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016) (New York: UN, 2017)Google Scholar.

43 Ibid, para 20.

44 The Minnesota Protocol refers to potentially conducting post-operation investigations into casualties resulting from an attack (‘including the accuracy of the targeting’) but does not consider other forms of killing or wrongdoing in war. See Minnesota Protocol, above n 42 at para 21.

45 Canada, Australia, UK and USA were the four states examined.

46 Schmitt, MN ‘Investigating violations of international law in armed conflict’ (2011) 2 Harvard National Security Journal 31Google Scholar.

47 Ibid, at 83.

48 Ibid.

49 The ECtHR has long held that the right to a fair hearing has application to pre-trial proceedings, which includes the conduct of investigations. Such rights protect those accused at the investigatory as well as the hearing stage of proceedings (see for instance Salduz v Turkey, (ECtHR GC) App No 36391/02, at paras 50–55). The Court must also ‘look at the proceedings as a whole, having regard to the rights of the defence but also to the interests of the public and the victims that crime is properly prosecuted and, where necessary, to the rights of witnesses’: see Habran and Dalem v Belgium, App Nos 43000/11 and 49380/11, para 96 (17 January 2017).

50 Northern Ireland Office Addressing the Legacy of Northern Ireland's Past: Analysis of the consultation responses July 2019.

51 See for instance Prosecutor v Ademi and Norac, Decision for Referral to the Authorities of the Republic of Croatia Pursuant to Rule 11bis, IT-04-78-PT, 14 September 2005 at para 53 which noted ‘a fair trial of the Accused is properly complemented by a concern for fairness towards other interested parties, such as victims and the international community’.

52 This has been associated with clarifying the principle of ‘combat immunity’. See for instance T Tugendhat and L Croft ‘The fog of law: an introduction to the legal erosion of British fighting power’ (Policy Exchange, 2013).

53 This would accord with the demand in McCann that ‘all the surrounding circumstances including such matters as the planning and control of the actions under examination’ must be considered in any proper investigation. See above n 28.

54 Failure to pursue direct perpetrators (as suggested by some political figures for historic alleged war crimes on the basis that they were following established protocol or training) would contravene Principle IV laid down at Nuremberg that superior orders could not relieve responsibility provided the perpetrator had a moral choice to disobey. See Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal 1950.

55 Indirectly involved constituencies (national and international communities) may be treated fairly through the public dissemination of information found and the retention of accessible archives. See UNOHCHR Commissions of Inquiry and Fact-Finding Missions on International Human Rights and Humanitarian Law: Guidelines and Practice 2015 available at https://www.ohchr.org/Documents/Publications/CoI_Guidance_and_Practice.pdf.

56 A distinction should be drawn here between issues of evidence and those of judgement. So, for instance, to kill a disproportionate number of civilians in any legitimate attack is a war crime, but it need not be for the investigator to judge what is or is not disproportionate. The accumulation of evidence is the investigative task, although the investigating body must be alive to the applicable IHL principles.

57 Schmitt, above n 46, at 84.

58 UN High Commission for Human Rights ‘Istanbul Protocol or Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (2004).

59 See for instance BT Litz et al ‘Moral injury and moral repair in war veterans: a preliminary model and intervention strategy’ (2009) Clinical Psychology Review 695.

60 Examples of non-national investigators appointed to examine any allegations are common. But these are not standing institutions.

61 See Operation Telemeter report into the Royal Marines’ culture and ethos following the Alexander Blackman case available at https://www.gov.uk/government/publications/operation-telemeter-internal-review; ‘The Aitken Report: An Investigation into Cases of Deliberate Abuse and Unlawful Killing in Iraq in 2003 and 2004’ Ministry of Defence, 25 January 2008; SIWG, above n 18.

62 The SPA's mission statement reflects the potential conflict, stating ‘Whilst maintaining independence from the service chain of command, the Service Prosecuting Authority fulfils its functions in support of operational effectiveness of the Armed Forces throughout the world’. See http://spa.independent.gov.uk/.

63 Principles relating to the Status of National Institutions (The Paris Principles), approved by the UN General Assembly (A/RES/48/134) 20 December 1993 identify essential characteristics for NHRIs: they focus specifically on competence, independence and plurality.

64 After identifying numerous individuals culpable in the death of Baha Mousa, investigations were re-opened by the Iraq Historic Allegations Team in 2013. No further prosecution has commenced.

65 Principle 11, UN Human Rights Commission ‘Set of principles for the protection and promotion of human rights through action to combat impunity’ updated in 2005 relate to crimes in war as much as human rights abuse. This is a product of the attempt to merge IHRL with IHL. The advocated principles should not be dismissed for this reason. The guidelines are designed to ‘assist States in developing effective measures’ to bring perpetrators to ‘account – whether in criminal, civil, administrative or disciplinary proceedings’.

66 Report of the UN Secretary General on ‘The rule of law and transitional justice in conflict and post-conflict societies’ (23/08/2004) para 38.

67 The Hillsborough Independent Panel, which reported in 2012 to general acclaim, provides an example of a process premised on inclusivity.

68 Al-Skeini and Others v The United Kingdom, above n 32, para 161 ff.

69 Williams, above n 1.

70 Northern Ireland Office ‘Addressing the Legacy of Northern Ireland's Past: Analysis of the consultation responses’ July 2019 at 3.

71 The Office of the Prosecutor of the ICC, though engaged in reviewing the UK's investigations into Iraq and Afghanistan allegations, remains watchful rather than interventionist. See Report on Preliminary Examination Activities 5 December 2018.

72 Fact-finding missions are part of the international human rights law landscape. See D'Alessandra, F ‘The accountability turn in third wave human rights fact-finding’ (2017) 33(84) Utrecht Journal of International and European Law 59CrossRefGoogle Scholar.

73 Alseran and Others v Ministry of Defence [2017] EWHC 3289 (QB) 14.

74 Smith and Others v Ministry of Defence [2013] UKSC 41 established UK jurisdiction for Art 2 ECHR breaches relating to troops serving abroad.

75 Retaining information generally (including that which would not satisfy as evidence in a criminal prosecution) would still be required for assessing state responsibility questions and providing a record for public purposes. The archival function would be vital to fulfil the inter-generational fairness issues of the right to know.

76 The Commission on the Truth for El Salvador From Madness to Hope: the 12 year war in El Salvador report available at https://www.usip.org/sites/default/files/file/ElSalvador-Report.pdf.

77 See S Wilkinson ‘Standards of proof in international humanitarian and human rights fact-finding and inquiry missions’ Geneva Academy of International Humanitarian Law and Human Rights 2012.

78 26th International Conference of the Red Cross and Red Crescent: Resolution 1, Annex II: Meeting of the Intergovernmental Group of Experts for the Protection of War Victims, Geneva, 23–27 January 1995: Recommendations: https://www.icrc.org/en/doc/resources/documents/resolution/26-international-conference-resolution-1-1995.htm.

79 ICRC National Committees and Similar Entities on International Humanitarian Law Guidelines for Success December 2018 available at https://www.icrc.org/en/document/national-committees-and-similar-entities-international-humanitarian-law-guidelines-success.

80 See for instance https://www.gov.uk/government/publications/international-humanitarian-law-and-the-uk-government.

81 In 2019 ‘Soldier F’ was charged with murder in relation to Bloody Sunday: see https://www.theguardian.com/uk-news/2019/mar/14/prosecutors-explain-bloody-sunday-charges-against-soldier-f.

82 The sad death of Sir George Newman in June 2019 leaves the process uncertain, which highlights the precarious nature of these ad hoc judge-led processes.

83 Out of court settlements have seen compensation paid in multiple cases, most recently to Greek Cypriots who claimed war crimes had been committed by the UK prior to independence. See above n 20.

84 It would also comply with various international human rights commitments. See, for instance, the Istanbul Protocol (above n 58) Art 75, which provides that ‘Where investigative procedures are inadequate because of a lack of resources or expertise, the appearance of bias, the apparent existence of a pattern of abuse or other substantial reasons, States shall pursue investigations through an independent commission of inquiry or similar procedure. Members of that commission must be chosen for their recognized impartiality, competence and independence as individuals. In particular, they must be independent of any institution, agency or person that may be the subject of the inquiry’. Article 109 also stresses the need for any Commission to be impartial and ‘not closely associated with any individual, State entity, political party or other organization potentially implicated in the torture’.

85 Police Reform Act 2002, s 29A. Super-complaints can only be brought by designated bodies, which consist currently of a small number of NGOs including Liberty and Southall Black Sisters. For a full list see https://www.gov.uk/government/publications/police-super-complaints-designated-bodies/designated-bodies.

86 Williams, above n 1.

87 See Commission interventions on torture at https://www.equalityhumanrights.com/en/our-human-rights-work/monitoring-and-promoting-un-treaties/convention-against-torture-and-other.

88 Osiel, above n 36, pp 131–132.

89 The Paris Principles, above n 63.

90 In R (Ali Zaki Mousa and Others) v SSD (No 2) [2013] EWHC 1412 (Admin) at para 224 systemic issues were specifically left for parliamentary scrutiny.

91 See Intelligence and Security Committee Report Detainee Mistreatment and Rendition 2001–2010, 28 June 2018, HC 1113.

92 For details see Human Rights Watch Report ‘The Long Arm of Justice: Lessons from Specialized War Crimes Units in France, Germany, and the Netherlands’ (2014) available at https://www.hrw.org/news/2014/09/16/europe-national-courts-extend-reach-justice.

93 A War Crimes Team exists in the Metropolitan Police as part of its Counter Terrorism Command but little information is public for good reasons of security. See https://www.cps.gov.uk/publication/war-crimescrimes-against-humanity-guidance-making-application-dpp-consent-application.

94 National Audit Office Investigation into Government Funded Inquiries Report (21 May 2018) concluded that ‘[t]here is no organisation across government or Parliament with responsibility for monitoring and tracking whether recommendations have been implemented and ensuring that inquiries have the intended impact’ paras 3.17 and 3.18.

95 Williams, above n 1.

96 In the context of Northern Ireland, it has been reported that the ‘clear majority of all respondents to the consultation argued that a Statute of Limitations or amnesty would not be appropriate for Troubles-related matters’: Northern Ireland Office Legacy report, above n 50, at p 21.