United Kingdom of Great Britain and Northern Ireland
Practice Relating to Rule 158. Prosecution of War Crimes
The UK Military Manual (1958) notes:
The [1907 Hague Regulations] themselves … provide that the perpetrators of the particular offences of seizure, damage or wilful destruction of churches, hospitals, schools, museums, historic monuments, works of art, etc
., shall be prosecuted.
The manual also states:
In the case of “any alleged violations” of the 1949 [Geneva] Conventions an inquiry must be instituted at the request of a party to the conflict. If a violation be established, the parties to the conflict must put an end to it and punish it with the least possible delay. These provisions form an important method of ensuring that the laws of war are observed by belligerents.
The manual further states:
All parties to the 1949 [Geneva] Conventions undertook to enact any legislation necessary to provide effective penal sanctions for persons committing or ordering to be committed any of the “grave breaches” of the Conventions. Parties are also bound to search for persons alleged to have committed, or ordered, “grave breaches”, and regardless of their nationality, to bring them to trial in their own courts. If a party so prefers, and in accordance with the provisions of its own legislation, it may hand such persons over for trial to another State concerned which is a party to the Conventions, provided that that other State has made out a prima facie
case against those persons.
The UK LOAC Manual (2004) states:
14.16. In some circumstances, members of a PSO [peace support operations] force may be expressly or impliedly charged with certain responsibilities for ensuring the compliance of others with the law of armed conflict. For example, they may have a responsibility to intervene so far as feasible to prevent the commission of grave breaches or other war crimes or to arrest persons indicted for such offences. In addition, there is a duty on states party to Additional Protocol I to co-operate with the United Nations in response to serious violations of the law of armed conflict.
16.1. Enforcement of the law of armed conflict can involve a wide variety of measures. “Enforcement” is taken here to mean action to ensure observance of the law and also action that may be taken following alleged or actual violations. Action aimed at effective enforcement of the law can include, but is not limited to:
h. Penal and disciplinary measures, such as trials before civil courts or courts-martial or appropriate disciplinary action by commanding officers. Trials may be either within a single state or organized on an international basis.
16.1.2. Complaints of unlawful acts and omissions alleged to have been committed by individuals or by commanders are an almost inevitable feature of warfare. All sides will be striving to win the battle for public and world opinion and no state can afford to ignore this. Hostile opinion can lead to loss of political goodwill and public support and damage morale amongst the forces concerned. Failure by belligerent governments to investigate and, where appropriate, punish the alleged unlawful acts of members of their armed forces can contribute to the loss of public and world support, leading to isolation for the state involved.
The UK Geneva Conventions Act (1957), as amended in 1995, provides:
(1) Any person, whatever his nationality, who, whether in or outside the United Kingdom, commits, or aids, abets or procures the commission by any other person of a grave breach of any of the [1949 Geneva] conventions or the first [Additional] protocol shall be guilty of an offence and on conviction on indictment [shall be punished].
(2) In the case of an offence under this section committed outside the United Kingdom, a person may be proceeded against, indicted, tried and punished therefor in any place in the United Kingdom as if the offence had been committed in that place, and the offence shall, for all purposes incidental to or consequential on the trial or punishment thereof, be deemed to have been committed in that place.
The UK Geneva Conventions Act (1957), as amended in 2009, states:
(1) Any person, whatever his nationality, who, whether in or outside the United Kingdom, commits, or aids, abets or procures the commission by any other person of a grave breach of any of the scheduled [1949 Geneva] conventions, the first [1977 Additional] protocol or the third [2005 Additional] protocol shall be guilty of an offence.
(1A) For the purposes of subsection (1) of this section—
(a) a grave breach of a scheduled convention is anything referred to as a grave breach of the convention in the relevant Article, that is to say—
(i) in the case of the [1949 Geneva] convention [I] set out in the First Schedule to this Act, Article 50;
(ii) in the case of the [1949 Geneva] convention [II] set out in the Second Schedule to this Act, Article 51;
(iii) in the case of the [1949 Geneva] convention [III] set out in the Third Schedule to this Act, Article 130;
(iv) in the case of the [1949 Geneva] convention [IV] set out in the Fourth Schedule to this Act, Article 147; and
(b) a grave breach of the first [Additional] protocol is anything referred to as a grave breach of the protocol in paragraph 4 of Article 11, or paragraph 2, 3 or 4 of Article 85, of the protocol.
(c) a grave breach of the third [Additional] protocol is anything which for the purposes of Article 6 of the protocol constitutes the perfidious use of the emblem specified in section 6(1)(f) of this Act.
The UK War Crimes Act (1991) grants the UK courts jurisdiction over war crimes committed in Germany or German-occupied territory during the Second World War by persons who are now UK citizens or residents, irrespective of their nationality at the time of the alleged offence. The act only applies to crimes such as murder and manslaughter, which “constituted a violation of the laws and customs of war”, and were considered war crimes during the Second World War.
The UK UN Personnel Act (1997) provides:
If a person commits, outside the United Kingdom, any act to or in relation to a UN worker which, if he had done it in any part of the United Kingdom, would have made him guilty of [murder, manslaughter, culpable homicide, rape, assault causing injury, kidnapping, abduction or false imprisonment], he shall in that part of the United Kingdom be guilty of that offence.
This Act does not apply to any UN operation
which is authorised by the Security Council of the United Nations as an enforcement action under Chapter VII of the Charter of the United Nations, … in which UN workers are engaged as combatants against organised armed forces, and … to which the law of international armed conflict applies.
The UK ICC Act (2001) includes as offences under domestic law, the acts of genocide, crimes against humanity and war crimes as defined in the 1998 ICC Statute.
Thus, the Act provides: “It is an offence against the law of England and Wales for a person to commit genocide, a crime against humanity or a war crime.”
There is a similar provision for Northern Ireland.
In the aftermath of the war in the South Atlantic, the UK Metropolitan Police investigated allegations according to which criminal offences had been committed by UK soldiers during that conflict. However, in 1994, in reply to a question in the House of Lords, the Lord Chancellor stated:
The Director of Public Prosecution has … announced that she has concluded her consideration of the inquiries carried out by the Metropolitan Police into allegations that criminal offences had been committed by members of the Parachute Regiment during their operations in the Falkland Islands in 1982 … She has concluded that the evidence is not such as to afford a realistic prospect of conviction of any person for any criminal offence and has therefore decided that no criminal proceedings should be instituted.
In July 1997, UK special forces arrested a leading Bosnian war crime suspect, in order to bring him before the International Criminal Tribunal for the former Yugoslavia.
In 2003, in a written reply to a question in the House of Commons, the UK Minister of State for Defence stated:
The offences contained in the Statute of the International Criminal Court (ICC) reflect international law provisions that were already applicable to the conduct of United Kingdom of Great Britain and Northern Ireland forces in any theatre of engagement. The ICC Statute does not therefore impose new conditions.
The consequences for our forces of UK ratification of the ICC Statute were carefully examined in preparation for the ICC Act 2001. Under the Statute, investigation and, if necessary prosecution of any allegations of war crimes, crimes against humanity or genocide by a UK national would be carried out by the UK. The Court would intervene only if it determined that a state was unwilling or unable to pursue a particular case, but it is inconceivable that the UK would ever be unable or unwilling to investigate or take appropriate action.
In 2003, during a debate in the House of Commons, the UK Prime Minister stated: “We are making it clear to Iraqi commanders in the field that if they use chemical or biological weapons, they will be deservedly prosecuted with the utmost severity.”
In 2003, in a written reply to a question in the House of Commons, the UK Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, stated:
We will investigate any allegation of war crimes against UK forces in the present conflict. If we find evidence to justify prosecution, we will seek to bring those responsible to justice. As regards allegations of war crimes committed by members of the Saddam regime prior to this conflict, the Government is assessing, in conjunction with coalition partners, how these can best be investigated and those responsible brought to justice.
In 2003, in a written reply to a question in the House of Commons on “the circumstances in which the International Criminal Court could intervene to prosecute UK citizens in cases where the British judicial system was unwilling or unable to do so”, the UK Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, stated:
In accordance with the complementarity provisions of the Statute of the International Criminal Court (ICC) and the International Criminal Court Act 2001 (which gave domestic effect to the Statute), the relevant UK authorities will, where appropriate, exercise jurisdiction in respect of allegations against UK service personnel, UK Citizens or residents.
In 2003, in a letter to the President of the UN Security Council, the Permanent Representatives of the United Kingdom and the United States wrote:
The United States, the United Kingdom and Coalition partners, working through the Coalition Provisional Authority, shall inter alia, provide for security in and for the provisional administration of Iraq, including by: … promoting accountability for crimes and atrocities committed by the previous Iraqi regime …
In 2003, in reply to a question in the House of Commons, the UK Prime Minister stated:
Mr. Duncan Smith: Given the Prime Minister’s answer, the whole House also will have heard the statement by President Bush that any Iraqi commander who commits a war crime will be prosecuted. Will he confirm that that dictum goes right to the top and, despite some reports of immunity, includes Saddam Hussein himself?
The Prime Minister
: There was a possibility, if Saddam Hussein was prepared to leave voluntarily, quit Iraq and spare his people the conflict, that we could have ensured that that happened. The circumstances in relation to any immunity might then have been different, but it is reasonably clear, I think, that that will not happen. I think that it is very important that those in senior positions of responsibility in Saddam Hussein’s regime realise that they will be held accountable for what they have done.
In 2003, during a debate in the House of Lords, the UK Parliamentary Under-Secretary of State for Defence stated:
The United Kingdom of Great Britain and Northern Ireland’s rules of engagement do not strictly in law provide UK service personnel with immunity from the UK legal process. However, they are robust and are drawn up in accordance with international and domestic law. Therefore, acting within the rules is very likely in practice to provide protection from prosecution.
My Lords, the reason it cannot be certain in law is because rules of engagement are for guidance only and do not constitute law, which is for the courts to determine. I shall try to assist by making the distinction between immunity from legal process – which is the subject of the Question – where there can be no guarantee that legal process may be instituted, and practical consequences. Where a member of the Armed Forces acts within the rules of engagement – that could, of course, be a matter for the court eventually to have to decide – the matter is unlikely to go to court and almost certainly would not result in a finding of liability or guilt.
In 2003, in its fourth periodic report to the Committee Against Torture, the United Kingdom stated:
As indicated in the third report, the United Kingdom ratified Protocols I and II to the Geneva Convention on 28 January 1998. The International Criminal Court (ICC) Act 2001 makes minor amendments to the Geneva Conventions Act 1957. These ensure that the provisions for consent to prosecutions for grave breaches of the Geneva Conventions under the 1957 Act are consistent with those for the prosecutions under the ICC Act. In the case of such offences, proceedings will not begin without the consent of the Attorney-General or, in Scotland, the Lord Advocate.
In 2005, in its Annual Report on Human Rights, the UK Foreign and Commonwealth Office stated:
We have made it clear that we will not hesitate to act where British troops fail to uphold the high standards of behaviour set out in the Geneva Conventions and the rest of international humanitarian law. The individuals accused of the mistreatment of Iraqi civilians at a humanitarian aid distribution centre near Basra in May 2003 have stood trial and those found guilty have been sentenced.
In 2005, in a written answer to a question concerning “the bringing to justice of suspected war criminals”, the UK Parliamentary Under-Secretary of State, Home Office, stated:
The Government takes all allegations of war crimes and crimes against humanity very seriously and is fully committed to its obligations under international law, which it has implemented through the Geneva Conventions Act 1957, the International Criminal Court Act 2001 and section 134 of the Criminal Justice Act 1988.
The prosecution of particular cases in England and Wales is a matter for the police and the Crown Prosecution Service. The recent successful trial of Faryadi Zardad, found guilty in July 2005 of torture and hostage taking in Afghanistan, demonstrated the commitment on the part of the police and CPS [Crown Prosecution Service] to pursue major war crimes cases.
In 2006, in a written answer to a question in the House of Commons concerning the War Crimes Act 1991, the UK Parliamentary Under-Secretary, Home Office, stated:
The War Crimes Act 1991 was passed by Parliament to allow the prosecution of war crimes committed during the Second World War in Germany or German occupied territory by people who are now British citizens or resident in the UK.
The Metropolitan Police War Crimes Unit, which disbanded in 1999, conducted enquiries into a large number of cases arising from the 1989 Report of the War Crimes Inquiry and elsewhere. Most cases did not lead to criminal proceedings because either the suspect was no longer alive or there was insufficient evidence for prosecution. There has been one conviction under the Act. Anthony Sawoniuk was sentenced to life imprisonment in 1999 and died in custody in 2005. In one other prosecution, against Syzmon Serafinowicz in 1997, the court found the defendant unfit to plead and the then Attorney General entered a Nolle Prosequi (permanent stay of prosecution).
The Metropolitan Police continues to have lead responsibility for the investigation of allegations of war crimes under the Act. defendant unfit to plead and the then Attorney General entered a Nolle Prosequi (permanent stay of prosecution). The Metropolitan Police continues to have lead responsibility for the investigation of allegations of war crimes under the Act.
In 2007, in a written answer to a question in the House of Commons concerning the United Kingdom’s compliance with the 1949 Geneva Convention IV, particularly with its Articles 1 and 147, the UK Minister of State for Trade, Foreign and Commonwealth Office, stated:
The United Kingdom has signed and ratified the Fourth Geneva Convention and complies with its provisions. Every appropriate opportunity is taken in our bilateral relations and through appropriate international bodies to promote respect for the convention and its articles.
The UK has enacted legislation (Geneva Conventions Act 1957, as amended) to enable prosecutions in respect of the grave breaches set out in article 147 in the UK. Alleged breaches of the convention relevant to the UK that are brought to our attention are investigated by the appropriate authorities. Prosecution decisions are made in accordance with criminal law principles by the appropriate prosecuting authority.
In 2008, the UK Army published the Aitken Report which investigated cases where members of the British Army were alleged or proven to have mistreated or killed Iraqi civilians outside the context of immediate combat operations in 2003 or early 2004. The Aitken Report stated:
27. Four cases involving Iraqi deaths as a result of deliberate abuse have been investigated, and subsequently referred to the Army Prosecuting Authority (APA) on the basis there was a prima facie case that the victims had been killed unlawfully by British troops. The APA preferred charges on three of these cases on the basis that it considered there was a realistic prospect of conviction, and that trial was in the public and service interest; and yet not one conviction for murder or manslaughter has been recorded.
28. The Army’s position is straightforward on the issue of prosecution. Legal advice is available for commanding officers and higher authorities to assist with decisions on referring appropriate cases to the APA [Army Prosecuting Authority]. The Director Army Legal Services (DALS), who is responsible to the Adjutant General for the provision of legal services to the Army, is additionally appointed by The Queen as the APA. In that capacity, he has responsibility for decisions on whether to direct trial for all cases referred by the military chain of command, and for the prosecution of all cases tried before courts-martial, the Standing Civilian Court and the Summary Appeal Court and for appeals before the Courts-Martial Appeal Court and the House of Lords. DALS delegates these functions to ALS officers appointed as prosecutors in the APA, and Brigadier Prosecutions has day to day responsibility for the APA. The APA is under the general superintendence of the Attorney-General and is, rightly, independent of the Army chain of command: the APA alone decides whether to direct court-martial trial and the appropriate charges, and neither the Army chain of command, nor Ministers, officials nor anyone else can make those decisions. However complex the situation in which it finds itself, the Army must operate within the law at all times; once the APA has made its decision (based on the evidence and the law), the Army has to accept that the consequences of prosecuting particular individuals or of particular charges may have a negative impact on its reputation.
29. The absence of a single conviction for murder or manslaughter as a result of deliberate abuse in Iraq may appear worrying, but it is explicable. Evidence has to be gathered (and, as already mentioned, this was not an easy process); that evidence has to be presented in court; and defendants are presumed innocent unless the prosecution can prove its case beyond reasonable doubt. That is a stiff test – no different to the one that applies in our civilian courts. In the broader context, the outcome from prosecutions brought to court martial by the APA is almost exactly comparable with the equivalent civilian courts: for example, as at the end of 2006, the conviction rates after trial in the court martial system stood at 12% as compared with 13% in the Crown Courts. It is inevitable that some prosecutions will fail; but this does not mean that they should not have been brought in the first place. It is the courts, after all, that determine guilt, not the prosecutors. Indeed, the fact that only a small number of all the 200-odd cases investigated by Service Police in Iraq resulted in prosecution could be interpreted as both a positive and a negative indicator: positive, in that the evidence and the context did not support the preferring of criminal charges; but negative, in that we know that the Service Police were hugely hampered, in some cases, in their ability to collect evidence of a high enough standard for charges to be preferred or for cases to be successfully prosecuted.
30. It is important to note that none of this implies any fundamental flaws in the effectiveness of the key elements of the Military Criminal Justice System.
Developments Since 2003
31. But some weaknesses in the system have been identified as a result of experience, and rectified. … To improve the quality of legal advice in training, and to capture lessons learned on operations, an Operational Law Branch was fully established in January 2006 under an operationally-experienced Army Legal Services Brigadier. …
32. The effectiveness of the RMP [Royal Military Police] has similarly been enhanced by a number of measures implemented since 2004.
[footnote in original omitted]
In 2008, in a written statement to the House of Commons, the UK Secretary of State for Defence stated:
After wide consultation and after considering the representations that I have received, and with the full support of the military chain of command, including the Chief of the Defence Staff and the Chief of the General Staff, I have decided that the right thing to do is to establish a public inquiry under the Inquiries Act 2005. The inquiry will examine the circumstances surrounding the death of Baha Mousa [while detained by British armed forces in Iraq in September 2003]. The terms of reference and other details will be made public once they have been established in accordance with the provisions of the Act, and the inquiry report will be published.
This reinforces my determination, and that of the Chief of the General Staff, to do everything we can to understand how it came to be that Mr Mousa lost his life. The Army has no wish to hide anything in this respect. It has looked at itself very critically since 2003, and has made a number of significant changes that were enumerated in Brigadier Aitken’s report of January this year. It nevertheless remains anxious to learn all the lessons that it possibly can from this disturbing incident. Overall, the conduct of tens of thousands of our people in Iraq has been exemplary; it is a tiny number who have caused a stain on the reputation of the British Army. But that does not mean we can allow these events to pass without looking into them thoroughly.
I hope this independent inquiry will reassure the public that no stone has been left unturned. The Army and the Ministry of Defence will be giving the fullest co-operation to this inquiry.
In 2008, in a written statement to the House of Lords, the UK Parliamentary Under-Secretary of State for Defence stated regarding the public inquiry into the death of Mr Baha Mousa while in detention by British armed forces in Iraq:
The inquiry will be held under the Inquiries Act 2005 …
The inquiry’s terms of reference are:
To investigate and report on the circumstances surrounding the death of Baha Mousa and the treatment of those detained with him, taking account of the investigations that have already taken place, in particular where responsibility lay for approving the practice of conditioning detainees by any members of the 1st Battalion The Queen’s Lancashire Regiment in Iraq in 2003, and to make recommendations.
In my Statement on 14 May, I described the death of Mr Mousa as a disturbing incident; this was not just because a man died in the custody of British soldiers, but because an investigation by the Royal Military Police and subsequent court martial highlighted further important questions that needed to be answered. I am confident that the terms of reference that I have set out not only will enable the inquiry to conduct a thorough examination of the circumstances surrounding the death, but are sufficiently focused to ensure that its conclusions can be reached in a timely manner.
The inquiry will, of course, have the full support of the Ministry of Defence. Much work is in hand to ensure that the inquiry has the material that it needs and that those who will be required to assist the inquiry are given legal advice.
In 2009, in a written answer to the House of Lords, a UK Minister of State, Foreign and Commonwealth Office, stated:
We have called for an independent and credible process to examine allegations of war crimes by both sides in Sri Lanka. Both my right honourable friend the Foreign Secretary and I raised this with the Sri Lankan Foreign Minister during his recent visit to the UK. Under international law, it is the primary responsibility of the state against whose forces allegations are made to investigate possible war crimes committed by its own forces.
We have encouraged the Sri Lanka Government to ensure that their own domestic process, the Lessons Learnt and Reconciliation Commission, is open and transparent and works with the UN Secretary-General’s panel of three experts whose remit is to advise on accountability issues.
The UK Government Strategy on the Protection of Civilians in Armed Conflict (2010) states:
An essential part of protecting civilians in armed conflict is to ensure that there is no impunity for those who commit serious crimes during armed conflict, and that perpetrators are held to account at both a domestic level and at an international level where necessary. … The international community needs to ensure that, where serious violations of international humanitarian and human rights law occur, those who bear the greatest responsibility for international crimes, including war crimes and crimes against humanity are prosecuted. We also believe that ensuring justice for such crimes is an integral part of post-conflict reconstruction and reconciliation. The UK is committed to ensure such perpetrators are held to account.