Crimes of War

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 group’s intention to commit the crime.