May
17, 2002
APV
Rogers
Author, Law on the Battlefield, Fellow, Lauterpacht Research
Centre for International Law, University of Cambridge
Interview
by Anthony Dworkin
There
is currently an armed conflict in Afghanistan. The Royal Marines,
supported by US air power, are deployed in some strength on search
and destroy missions. The armed conflict continues so long as active
hostilities continue. Even after that, the law of armed conflict
continues to apply so long as persons protected by that law, such
as prisoners of war, require protection. Prisoners of war are normally
to be repatriated at the end of active hostilities but they can
continue to be held while war crimes charges against them remain
outstanding. Under Article 14 of the International Covenant on Civil
and Political Rights 1966, however, a person so held would be entitled
to be tried without undue delay.
Once
hostilities in Afghanistan end, it is arguable that, as a
matter of law, a state or states can be involved in an armed conflict
elsewhere with a specific organisation such as al Qaeda. A more
general war against terror would not suffice. In the
first instance, a decision about this would be made by the executive.
The decision would be open to challenge before a competent tribunal.
For example, the defence could argue before the commission that
a state of armed conflict did not exist so that the commission had
no jurisdiction.
The
notion of individual criminal responsibility is firmly entrenched
in many legal systems, so it would not suffice merely to prove that
the accused is a member of a group that has taken part in criminal
activity. It is necessary to prove that the accused has participated
in that activity in some way.
In
the United Kingdom Royal Warrant for the trial of war criminals
of 14 June 1945, the following provision appeared. Where there
is evidence that a war crime has been the result of concerted action
upon the part of a unit or group of men, then evidence given upon
any charge relating to that crime against any member of such unit
or group may be received as prima facie evidence of the responsibility
of each member of that unit or group for that crime.
It
will be noted that membership of a group is only prima facie
evidence and so is not conclusive. In the context of war crimes
it is generally necessary to prove, if the accused did not commit
the crime himself, his participation by, for example, ordering it,
assisting in its commission, covering it up afterwards or, if a
commander, failing to stop its commission. In all these cases, knowledge
on the part of the accused would have to be proved.
This
principle is well encapsulated in Article 25 of the Rome Statute
of the International Criminal Court 1998, now in force though the
United States is not a party. This provides that a person is criminally
responsible if he contributes to the commission of a war crime by
a group of persons acting with a common purpose. The contribution
must be intentional and be made with the aim of furthering the criminal
activity of the group or is made in the knowledge of the groups
intention to commit the crime.
This site © Crimes of War Project 1999-2003
|