Presented to
The International Symposium of Military Ethics
Adazi Training Center
by
K L H SAMUEL
Lieutenant Commander Royal Navy
fostsla@a.dii.mod.uk
1. The aim of this paper is to demonstrate that the employment of sound military ethics is not optional for members of the military machine – not only uniformed personnel but also senior civilian staff involved in the military decision making process. Instead, there is a clear legal framework in which military operations must operate, which will call individuals to account for a failure to observe their military obligations, potentially including any failure to act ethically in the interpretation and application of those obligations.
2. Increasingly, we are all conscious of the many difficult “grey areas” of interpretation that exist in military operations and the application of the Law of Armed Conflict (LOAC), which is fluid and dynamic and never static. We need look no further than current military operations in Afghanistan and the former Yugoslavia to see the potential difficulties in clearly defining such fundamental concepts as combatants or who is a party to an armed conflict. The correct interpretation and application of these concepts is of great importance to all of us to ensure that not only mutually applicable international law obligations continue to exist and be respected, but also their associated protections for each one of us – there is a dynamic and essential tension that exists, indeed must exist, between LOAC and military ethics. It is in these key areas that each of us as individuals as well as States can play a part in developing the applicable law both now and for the future – not only during military action, but also in, for example, the development of new weapon systems and technology. These require the application of high ethical standards – even in grey areas of interpretation, black and white standards can always be found. As I heard the former Army Chaplain General, The Reverend Doctor Victor Dobbin, once say – it is when we are under pressure that our real personality and real values come to the surface. If we are already in a conflict, it is too late to change them then – they must be examined, understood and developed beforehand, hence the immense benefits to be gained from conferences and training such as this. However, even here, I recognise the difficulties in common interpretation and the existence of different shades of grey - partly the effect of globalisation (and shifting focus to Communities rather than Nation States); and partly cultural impact, for example interpreting the essentially Western influenced Geneva Conventions in Non-European States, with different thinking and legislation.
3. However, ultimately each of us is answerable and liable for our actions to a higher authority (which is often multi-national and able to steer through the different shades of grey to reach fair conclusions), whether the consequences of those actions are good or bad. There are two types of accountability that I will cover: that of States with respect to any decision to use force; and that of individuals over how they conduct themselves during military operations.
4. Ius ad bellum is the Latin term used to describe the decision taken by a State to use force. Such a decision should be taken in accordance with those principles established under the United Nations Charter 1945, to which some 190 States including UK and Latvia are signatories. There are two concepts I wish to outline here:
Article 2(4) – “all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the UN.” Simply put, there is a presumption against the threat or use of force between sovereign States.
There is also a presumption that one State will not become involved in the domestic affairs of another State. Article 2(7) states that “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State ….this principle shall not prejudice the application of enforcement measures under Chapter VII.”
5. The exception to these principles is based on whether or not the actions of a State constitute a threat to international peace and security. If so, then the use of military force may be permissible in 2 circumstances under Chapter VII of the United Nations Charter:
Article 42, as authorized by a UN Security Council Resolution, for the specific use of force (air, land or sea) as may be necessary to maintain or restore international peace and security; or
Article 51 inherent right of States to act in individual or collective self-defence if an armed attack occurs until such time as the UN Security Council takes measures necessary for the maintenance of international peace and security.
6. Difficulties in interpretation can arise whether or not a UN Security Council Resolution exists. Self-defence in particular is probably one of the most over-stretched and hotly debated principles in international law. It is here, in those grey areas that I outlined earlier, that high ethical standards are important to ensure that military action remains lawful and proportionate at all times. An example is during the Gulf Conflict in 1991 when it was decided not to pursue Saddam Hussein to Bagdad – such a decision would probably have exceeded the Article 42 authorisation granted by the Security Council have been beyond Article 42, but is arguable whether or not it would have been lawful under Article 51 self-defence. In the event, the decision was taken not to pursue him and to end military action. The fact that military operations have lawful beginnings, such as a clear UN Security Council resolution, does not necessarily imply that they will remain lawful throughout, particularly if the force employed goes beyond the a UN mandate and/or becomes disproportionate. The legality, including the original decision to use force, must be kept under review – both by those States engaged in military operations as well as the UN Security Council.
7. There may also be circumstances where there are very strong moral reasons for a State/ States wanting to intervene and use force for reasons that do not clearly fall within the principles of the UN Charter as such circumstances could not be foreseen when the Charter was originally ratified in 1945 in a post WWII climate with only 50 of the current 190 Member States. This is acutely illustrated by NATO military action in Kosovo, amidst escalating and extremely brutal ethnic cleansing of the Kosovar Albanians, in order to avert a potential humanitarian catastrophe. The government of the former Yugoslavia was unable or unwilling to act to prevent such atrocities – indeed they were primarily responsible for them. The international community were also still licking their wounds from previous humanitarian catastrophes such as the Rwandan genocide in 1994 when an estimated 800 000 Tutsis and moderate Hutus were massacred, before the eyes of the international community who lacked the political will to become involved. However compelling the moral imperative for military intervention, clear legal authority for the use of such force is still necessary. The current position in international law is that such legal authority does not yet exist but that customary international law is developing towards the establishment of the doctrine of humanitarian intervention as a third circumstance when military force may lawfully be employed, which would not require prior express authorization from the Security Council.
8. In addition, there were questions not only over the use of force but also with respect to the proportionality and targeting of the NATO air strikes conducted during 24 March and 9 June 1999 (“ius in bello” issues which are discussed more fully below). This not only led to widespread international condemnation, but also to an initial investigation being conducted by an independent commission on behalf of the prosecutor at the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the Hague. While the ICTY did not have the jurisdiction to decide the legitimacy of the decision to use force, it did express concern over reliance on this doctrine of humanitarian intervention and the proportionality of the force used. Although the independent commission concluded that no potential war crimes had been committed during the air strikes (the extent of collateral damage was attributed to accidental rather than deliberate actions) the investigation nevertheless alerted NATO and other States to the fact that no-one is exempt from independent examination and scrutiny of their decisions and actions. Certainly the current international political and legal climate is evolving and changing from a culture of sovereign impunity to one of national and international accountability. Indeed a recent in depth report by the International Commission on Intervention and State Sovereignty recommended that we move away from the term “humanitarian intervention” to a more proactive, preventative “responsibility to protect”.
9. At present there is no permanent or temporary criminal tribunal that is able to determine the lawfulness of any State’s decision to use force (but see paragraphs 10-11 on the new International Criminal Court). Instead there is only the International Court of Justice (ICJ) in the Hague with civil jurisdiction and a limited ability to impose political pressure. Following the NATO air strikes in Kosovo, the Former Republic of Yugoslavia brought proceedings in the ICJ against 10 NATO member states regarding the legality of the air strikes and sought a preliminary ruling for them to cease as well as for compensation. Although for jurisdictional reasons there will be no final ICJ ruling, the Court did express deep concern regarding the air strikes and emphasized the need for all states to act in conformity with their obligations under the UN Charter and other rules of international law, including humanitarian law.
10. The two principle criminal offences that could be tried with respect to ius ad bellum are “Crimes against Peace” or “Crimes of Aggression”. “Crimes against Peace” were defined in Article 6 of the Nuremburg Tribunals’ Charter as the “planning, preparation, initiation, or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of ….War Crimes,..Crimes against Humanity….” Undoubtedly, however, a temporary tribunal could be established to address the legality of a State’s decision to use force against another State(s) if Crimes against Peace were alleged to have been committed, similarly for “Crimes of aggression”. The latter, still without an internationally agreed definition, will on the other hand be within the new permanent International Criminal Court’s jurisdiction, although not until at least 7 years after the new International Criminal Court (ICC) is effective and operating. Although tribunals such as the ICC will be concerned with ius ad bellum, criminal responsibility will attach to the key military and/or civilian personnel involved in the decision making process rather than States themselves.
11. The ICC was established under the Statute of Rome 1998. Its aim is to have one permanent international criminal court which has jurisdiction to hear the most serious crimes of concern to the international community, namely war crimes, crimes against humanity, genocide and crimes of aggression, and will avoid the need to have lots of separate temporary tribunals, such as the ICTY, which can only deal with one prescribed conflict over a defined period of time. The gravity of the offence would seem to attach to the nature of the offence rather than the numbers involved, although the extent of any violation will of course be a relevant factor. Therefore, for example, the torturing of one Prisoner of War, which is both a crime against humanity and a war crime, could constitute such a grave crime.
12. The ICC will have jurisdiction over ius ad bellum issues (once “Crimes against Aggression” have been defined) as well as ius in bello aspects, that is over alleged atrocities committed during military operations. It will come into effect once the first 60 states have ratified, that is, incorporated the provisions of this international statute within their domestic legislation. The United Kingdom was the 42nd State to ratify the Statute in October 2001, and currently there are 52 States who have ratified the Statute. Under the Statute each State will have primary jurisdiction and responsibility to investigate and prosecute any alleged crimes committed by their personnel (the doctrine of complementarity). Only where a State is unable or unwilling or acts in bad faith, will the ICC become involved. The jurisdiction of the ICC is potentially wider than some States may be aware and links to either the territory where the alleged conduct took place if that State is a signatory; or the State of which the accused is a national if different. Therefore, States, which have not yet ratified the Statute of Rome, such as Latvia, could equally find themselves before the ICC for an alleged war crime that occurred in the territory of another State, which has ratified the Statute of Rome.
13. In addition, there is a further mechanism where jurisdiction may be established before the ICC. The Statute of Rome permits the ICC to exercise jurisdiction where the UN Security Council refers a matter that would not otherwise come within its jurisdiction to the Prosecutor, with permanent members of the UN Security Council being able to exercise the right of veto. This would include crimes committed by, or in the territory of, non-parties to the Statute.
14. I am now going to discuss “ius in bello”, the Latin term to describe the applicable law during actual conduct of military operations. There are many international treaties that govern this, including the types of weapons that may be employed, legitimate targets. I would like to concentrate on the principle conventions, namely the four Geneva Conventions 1949 together with the two Additional Protocols 1977. The Geneva Conventions cover the humanitarian aspects associated with the treatment of the sick, wounded and shipwrecked from conflicts at land and sea, the subsequent handling of any prisoners of war, and the general protection of civilian populations. With the exception of Common Article 3, the provisions of the four Conventions apply to international conflicts. Further aspects of international military operations are then expanded in Additional Protocol I which includes important definitions: for example what constitutes a military objective; acceptable collateral damage combined with the requirement to minimize damage to civilian populations and cultural property as far as is possible. Internal conflicts are also provided for by Common Article 3 and Additional Protocol II, which in essence call for the humane treatment of those not engaged in military action, including the injured and sick, civilians and those “hors de combat” for whatever reason. I understand that Latvia has been a signatory to all four Conventions and both Additional Protocols since 1991 – many other States are yet to ratify the Additional Protocols.
15. These Conventions are intended to provide a double safeguard – for you and me when engaged on military operations, but also to any adversary we are engaged against. Even States that have chosen not to ratify all of these obligations may be bound by the same or similar obligations that have developed in customary international law, that is law that develops through the practice of States. Adherence to the clear and strict obligations of the Conventions are not optional – the Conventions themselves are very clear that any breach may constitute a serious or grave breach which in term may be tried in domestic court under domestic criminal law or in an international forum such as a temporary war crime tribunal or the new ICC in due course. An example would be firing upon a combatant who has surrendered under a white flag, thrown down his arms and wishes to claim protected Prisoner of War status. Such grave breaches of the Geneva Convention are expressly included within the jurisdiction of the ICTY and ICC. Universal jurisdiction exists for these Conventions as well as a number of other international treaties. This means that any State who has ratified the relevant Convention may investigate and prosecute any person, regardless of nationality, who is accused of any of the crimes covered by those Conventions. The preferred option, however, will always be for States to exercise domestic jurisdiction over their nationals where at all possible.
16. UN Peace Support Operations, which affect most if not all of us here, raise a particular difficulty of interpretation when it comes to the applicable law for “peacekeepers” because, for example, the United Nations, as an organization rather than a State, cannot be a signatory to Conventions such as the Geneva Conventions. The current general consensus would seem to be that any UN authorized operation, whether or not under the direct command and control of the UN, comprises Member States who are signatories to these international obligations. The spirit and principles of these obligations should therefore be adhered to at all times by military personnel. Certainly this is the safest and most pragmatic approach in terms of avoiding international condemnation as well as safeguarding our personnel.
17. The Geneva Conventions also impose a training commitment on those States that have ratified them to ensure that all potential combatants, whether on land, sea or in the air, are fully conversant with their international obligations. The law is very clear that generally mere ignorance of these obligations is not by itself a defence in law. It is therefore extremely important that our personnel are fully trained both in order to offer them maximum protection as well as to avoid subsequent international criticism by such influential organizations as the International Committee of the Red Cross/Crescent (ICRC) who will exceptionally speak out regarding perceived violations of international obligations. In addition, one can never underestimate the pressure that can be brought to bare by the media and political arena.
18. I would like to briefly look at one very important legal aspect that affects all of us in uniform as well as civilians closely involved in the military process, such as President Milosevic who is currently being tried for war crimes at the ICTY – that is the potential criminal responsibility of individuals and commanders, and the effect of orders given by superiors. Although not new, these issues have been closely considered by the ICTY where important jurisprudence is being developed that will be influential to the new ICC once created, albeit not binding on the new court.
Individual responsibility this is where an individual plans, instigates, orders, commits or otherwise aids and abets in the planning, preparation or execution of one of the named types of offences I have already outlined, whether during internal or international conflicts. The issue of superior orders is important here, including the so-called “Nuremburg principle” where all military personnel have a duty to know the difference between right and wrong, including the duty to disobey an unlawful order. The simple fact that an Accused acted pursuant to a superior order (military or civilian) will not act as a defence in any subsequent prosecution, although it may act as mitigation for any sentence awarded. The individual will only be relieved of criminal responsibility if: he was under a legal obligation to obey orders of the Government or the superior in question; he did not know that the order was unlawful; and the order was not manifestly unlawful. Any order to commit genocide or crimes against humanity will always be manifestly unlawful.
Command responsibility this is where the commander has not personally carried out or ordered the commission of a war crime, but is a aware that it is happening or has happened and fails to take appropriate action, including disciplinary action following the event. This reflects Article 87(3) of Additional Protocol I which requires a commander to initiate any necessary steps to prevent subordinates under his command from committing any such violations, and to initiate disciplinary action against any violators. The current test is to consider:
a. the commander’s effective command and control over any perpetrators: including his ability to prevent future crimes and to punish previous ones; a superior position whether or not within the direct chain of command, and whether military or civilian; a position of more than mere influence. This is potentially wide ranging and may include non-commissioned as well as commissioned personnel.
b. the necessary mental element of command responsibility, namely whether the military commander knew or had reason to know the actions of his troop. Although he has a duty to be informed on the actions of his troops, not every failure will give rise to command responsibility for those actions. There is a requirement for actual knowledge, through direct or circumstantial evidence; or for relevant information which should at the very least have put him on notice of the risk. Once alerted, the commander cannot turn a blind eye but must make necessary enquiries.
A recent example of command responsibility is the former Bosnian Serb General, Radislav Krstic who was the first man convicted of genocide by ICTY in August 2001 for the massacre of an estimated 8000 men and boys in Srebenica. He was convicted for failing to use his authority to halt the killings, and for allowing his units assets to be used in the connection with the executions.
19. These principles of individual and command responsibility will be equally important in the ICC. Although the elements will be very similar to Nuremburg and ICTY jurisprudence, they will be clearer and more defined having been established under statutory provisions. There will also be some specific protections inbuilt for military commanders such as where a commander committed acts under such duress as the threat of imminent death or serious bodily harm; acted in reasonable self-defence; or suffered from a mental disease or defect such that he cannot appreciate the lawfulness of conduct.
20. Finally, one can never underestimate the effect of adverse media coverage. A clear example is the Somali torture case where one 16 year old Somali youth was tortured to death by a Canadian Defence Force corporal and private within less than 4 hours of capture. A number of personnel, commissioned and non-commissioned, were aware of what was happening and failed to respond. This led not only to the prosecution of individual members involved, but had much wider ramifications: the resignation of the Chief of Defence Staff and Minister of Defence; many other careers were ruined; the disbanding of the unit in question; a public enquiry; and significant damage to the national and international reputation of the Canadian Defence Forces.
21. Military ethics do not work within a vacuum, but rather within a developing and expanding legal framework, where there is increasing international commitment to prosecute those who violate their legal and military obligations. Although many grey areas of interpretation exist in LOAC, this should be viewed positively as an opportunity to make a positive and ethical contribution to the development and interpretation of these concepts – each State has a unique opportunity to set a high ethical example to others which ultimately can only benefit them politically, as well as practically when the available protections are respected and reciprocated to their own forces. However, the application of these values within the military hierarchy will not simply happen, rather they need to be spread from the top down and from bottom up. If we do not voluntarily choose to be ethical and accountable for our military actions, international organizations, such as the ICRC, and tribunals, such as the ICTY and ICC, will make us accountable.
K L H SAMUEL
Lieutenant Commander Royal Navy
Staff Legal Adviser to Flag Officer Sea Training, UK
8 March 2002
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