United Kingdom of Great Britain and Northern Ireland
Practice Relating to Rule 151. Individual Responsibility
The UK LOAC Pamphlet (1981) states: “Although international law is aimed mainly at regulating the conduct of States and their Governments, individual combatants are required to comply with the law of armed conflict.”
The UK LOAC Manual (2004) states:
16.35. Individuals are responsible for the war crimes that they commit themselves or which they order or assist others to commit.
16.35.1. Article 7 of the Statute of the International Criminal Tribunal for the former Yugoslavia provides that “a person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime … shall be individually responsible for the crime.”
16.35.2. The Rome Statute of the International Criminal Court also confirms that an individual is responsible for a war crime if he:
a. commits the crime himself, on his own or jointly with others, or
b. orders, solicits or induces a crime which is committed or attempted, or
c. aids, abets or otherwise assists in the commission of the crime, including providing the means for its commission, or
d. contributes to the commission or attempted commission of the crime by a group of persons acting with a common purpose.
The UK Geneva Conventions Act (1957), as amended in 1995, provides:
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 1977 Additional Protocol I] shall be guilty of an offence and on conviction on indictment [shall be punished].
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 War Crimes Act (1991) grants the UK courts jurisdiction over murder, manslaughter or culpable homicide committed in Germany or German-occupied territory during the Second World War, provided that the offence “constituted a violation of the laws and customs of war”. The Act applies to a person who was, in 1990, a British citizen or resident in the United Kingdom, the Isle of Man or any of the Channel Islands, “irrespective of his nationality at the time of the alleged offence”.
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, it 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 Essen Lynching case
in 1945 dealing with the liability of two soldiers and several civilians for the alleged killing of unarmed POWs during the Second World War in violation of the laws and usages of war, the UK Military Court at Essen (Germany) found the accused guilty, stating with regard to the latter that every one of them had in one form or another taken part in the ill-treatment which eventually led to the death of the victims. With regard to one of the soldiers, a Captain in the German army who had not been physically involved in the killing but had allegedly given instructions that the POWs should be taken to a certain place and that he had given the order in a loud voice so that it could be heard by a crowd gathering nearby, the Court found that he was guilty of being concerned in the killing for his positive utterances.
In the Kramer case (Auschwitz and Belsen concentration camps case) in 1945, the UK Military Tribunal at Lüneberg admitted that:
There has not been universal agreement on the extent to which an individual can be held personally liable for breaches of such international agreements as the Hague Convention No. IV (Rules of Land Warfare) and the Geneva Prisoners of War Convention of 1929, according to the strict letter of which the responsibility for breach thereof lies on the State authority to which the perpetrator owes allegiance.
However, quoting the IMT’s opinion on the enforcement of the 1907 Hague Convention (IV) personally against its violators, the Court went on to state:
The trend of opinion and the practice followed by the Courts, however, has been to make the individual responsible for his acts in breach of international conventions, and this trend was illustrated on a high level by the decision pronounced by the International Military Tribunal at Nuremberg, that certain accused had made themselves criminals by waging war in breach of the terms of an inter-governmental agreement renouncing war undertaken as an instrument of national policy, the Briand-Kellogg Pact.
In 1990, during a debate in the Sixth Committee of the UN General Assembly, the United Kingdom stated that:
Recent events in the Persian Gulf demonstrated all too clearly the relevance of the topic of the draft Code of crimes against the peace and security of mankind. The catalogue of the international legal obligations which had been violated was endless. It must be clear that individuals were personally responsible for crimes of that nature, since the responsibility of the State, if there was such responsibility, was not in itself a sufficient response.
In 1990, during a debate in the UN Security Council concerning the application of the 1949 Geneva Convention IV in Kuwait following its occupation by Iraq, the UK representative stated:
I should also recall the terms of paragraph 13 of resolution 670 (1990), under which individuals are held individually responsible for grave breaches of the Geneva Convention. We should also hold personally responsible those involved in violations of the laws of armed conflict, including the prohibition against initiating the use of chemical or biological weapons contrary to the [1925 Gas Protocol], to which Iraq is a party.
On 21 January 1991, in the context of the Gulf War, the UK Minister of Foreign Affairs summoned the Iraqi ambassador to discuss Iraq’s obligations under international law. According to a statement by a spokesperson of the Foreign and Commonwealth Office (FCO) following the meeting, the UK Minister had “also reminded the Iraqi Ambassador of the personal liability of those individuals who broke the Conventions … He again reminded the Ambassador of the personal liability of those who authorised [the] use [of chemical and biological weapons]”.
In 1991, in a report submitted to the UN Security Council on operations in the Gulf War, the United Kingdom, with regard to the treatment of British POWs by Iraq, stated: “The Iraqi Ambassador was reminded of the responsibility of … individual Iraqis for any grave breach of the [1949 Geneva] Conventions.”
In 1991, in a written reply to a question in the House of Commons, the UK Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs stated: “We have consistently stated that individuals bear personal responsibility for crimes under international law. This position is reflected in Security Council resolution 674.”
In 1991, during a debate in the House of Lords on the subject of peace and security in the Middle East, a UK government spokesperson stated:
We have made it clear that anyone who breaks the provisions of the Geneva Conventions may be held liable, and that remains the case. That will not be a decision for the [United Kingdom] alone. Machinery already exists under the [Geneva Conventions Act as amended (1957)] for prosecuting grave breaches. The Kuwaiti Government intends to establish a commission to catalogue war crimes, which we welcome.
In 1991, during a debate in the House of Commons on the subject of peace and security in the Middle East, the UK Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs stated:
Anyone who breaks the provisions of the Geneva conventions may be held liable. Thus, individual Iraqis now bear personal responsibility for breaches of them. That position was reaffirmed in Security Council resolutions 670 and 674 … Machinery already exists under [the Geneva Conventions Act as amended (1957)] for prosecuting grave breaches of them.
In 1993, during a debate in the UN Security Council on the establishment of the ICTY, the United Kingdom, with regard to “continued reports of massive breaches of international humanitarian law and human rights in Bosnia”, declared:
The perpetrators must be called to account, whoever is responsible, throughout the territory of the former Yugoslavia. Those who have perpetrated these shocking breaches of international humanitarian law should be left in no doubt that they will be held individually responsible for their actions.
In 1993, during a debate in the UN Security Council following the unanimous vote on Resolution 827 (1993) establishing the ICTY, the United Kingdom stated:
It is essential that those who commit [violations of IHL in the former Yugoslavia] be in no doubt that they will be held individually responsible. It is essential that these atrocities be investigated and the perpetrators called to account, whoever and wherever they may be … Articles 2 to 5 of the draft [1993 ICTY] statute describe the crimes within the jurisdiction of the Tribunal. The Statute does not, of course, create new law, but reflects existing international law in this field. In this connection, it would be our view that the reference to the laws or customs of war in Article 3 is broad enough to include applicable international conventions and that Article 5 covers acts committed in time of armed conflict.
In 1994, during a debate in the UN Security Council on acts committed in Rwanda, the United Kingdom stated:
[Resolution 935] of the UN Security Council sends a clear message to those responsible for grave violations of international humanitarian law, or acts of genocide, that they will be held individually responsible for those acts. The international community is determined that they be brought to justice; it is our duty to ensure that this is done.
In 1994, during a debate in the UN Security Council, the United Kingdom reiterated that the establishment of the International Criminal Tribunal for Rwanda “is a signal of the international community’s determination that offenders must be brought to justice” and that “it is also a matter of the greatest importance to the British Government that the perpetrators of the genocide be brought to justice”.
In 2003, in a written reply to a question in the House of Lords, the UK Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, stated:
United Nations peacekeeping operations and their personnel are accountable, through the commander of the operation in the field, the Department of Peace-Keeping Operations at UN Headquarters and the UN Secretary-General, to the Security Council.
UN peacekeeping personnel are obliged to act in accordance with international humanitarian law and may be subject to prosecution for any breaches which they commit.
In 2003, during a UN Security Council debate, the UK Foreign Secretary stated: “The tribunals for the former Yugoslavia and Rwanda have broken new ground in international law. They have shown that no one – no head of Government or State – is above the law.”
The UK Regulations for the Trial of War Criminals (1945), as amended, provides: “In a case where the war crime consists wholly or partly of the taking, distribution or destruction of money or other property, the Court may as part of the sentence order the restitution of such money or other property.”
In 1998, during a debate in the Sixth Committee of the UN General Assembly on the establishment of an international criminal court, the United Kingdom stated that it “took particular satisfaction” at two of the aspects of the 1998 ICC Statute. One of these aspects was that:
The Statute of the Court gave the Court power, under article 75, to order the payment of reparations to victims. Accordingly, the Court would serve not just the interests of society in repressing crime, but also those of the victims of crime. The provision would also bolster the Court’s role in deterrence.