international law

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The potential for conflict is an inherent characteristic of the human condition

Chapter 1: Introduction, Literature Review & Methodology

The potential for conflict is an inherent characteristic of the human condition. Unfortunately, war represents one of the most undesirable side-effects stemming from such a trait. Yet owing to the fact that society has become increasingly more cultured and civilised, there has been a proliferation of attempts to regulate the laws of war with civilians having always figured prominently in drafters' minds.[1] Significant progress was made at the beginning of the 20th century,[2] but it was not until the ratification of the Geneva Conventions in 1949 that a treaty was adopted which specifically focused on the protection afforded to civilian persons during periods of war.[3]

The central premise underpinning this thesis is that whilst there has undoubtedly been marked progress regarding the imposition of sanctions on individuals found culpable for humanitarian law violations in the civilian context, there is still considerable scope for improvement. It thus follows that the primary objective of this research paper is to ascertain the effectiveness of the various accountability mechanisms currently being utilised to prosecute those persons responsible for the perpetration of war crimes and breaches of international humanitarian law. To achieve this goal, both the merits and weaknesses of each method shall be analysed with relevant observations and potential improvements being advanced where appropriate. By emphasising defects in the current system of international criminal liability, it is hoped that this thesis will propose several key enhancements which would positively contribute to further strengthening this blossoming area of law.

This question warrants serious consideration on the grounds that it is imperative that global actors ensure that effective and consistent enforcement mechanisms are in place to deal with such serious affronts to the civilian. If the type of human rights atrocities witnessed in previous armed conflicts are to be forever consigned to the past, the piecemeal approach towards criminal liability which has largely been adopted by the international community up until recently is unlikely to accomplish this objective.

Due to the expansive nature of international law, it has been necessary to impose certain limitations on the scope of this research project. Although a thorough examination of all the pertinent issues would have been desirable, the parameters of this paper simply do not permit this. Consequently, several armed conflicts of significant importance will be scrutinised in greater depth, namely the troubles afflicting the Former Yugoslavia in the early 1990's and the Allied invasion of Iraq in 2003. It is important to bear in mind that these conflicts have not been selected arbitrarily for inclusion in this thesis as there were important considerations meriting their selection.

For example, the Yugoslav Wars in Eastern Europe served as the catalyst for some of the most significant developments in international humanitarian law during the latter half of the 20th century. This conflict posed numerous challenges for the international community on the whole. It was perhaps the first definitive instance where the nature of an armed conflict was unclear - was it internal or international or did it comprise a hybrid mixture of both elements? Moreover, the Yugoslav Wars resulted in the creation of the International Criminal Tribunal for the Former Yugoslavia,[4] a landmark occurrence in its own right considering that in the absence of a permanent international criminal court, this was the first ad-hoc criminal tribunal to be established in almost fifty years.[5]

Yet this is not to detract from the importance attached to the recent invasion of Iraq in 2003 which raises several substantive issues in its own right. A war differing in character from the troubles afflicting the Former Yugoslavia, this conflict permits a thorough analysis of the “superior orders” defence - long a staple of international criminal law[6] - and the individual criminal liability of military personnel found to have committed humanitarian law violations. Should responsibility rest solely with the perpetrator of the offence or is the prosecution of senior military personnel warranted in some circumstances? It is hoped that an accountability study of U.K & U.S forces in Iraq will provide this discussion with a degree of originality as the majority of previous research on this topic has tended to focus on well-documented instances of humanitarian abuse such as war crimes committed during World War II[7] and the humanitarian atrocities underpinning the aforementioned Yugoslav Conflict.[8] Furthermore, the Iraq invasion also gives rise to an intriguing jurisdictional debate regarding the extra-territorial applicability of human rights' instruments, most noticeably the European Convention on Human Rights.[9]

In attempting to answer the questions outlined above, chapters two & three of this thesis are devoted to an analysis of the ICTY and the differing levels of protection afforded to civilians depending on the classification of an armed conflict. By scrutinising the benefits and shortcomings of this judicial institution, and with reference to salient case law including the Milošević trial, the reader will hopefully be provided with a stimulating and logical argument concerning the effectiveness and expediency of this ad-hoc court. Upon the conclusion of this section, the focus of the discussion shall then shift to the distinction between internal and international armed conflicts and whether such a division was ever warranted in international law. This subject change is a logical progression as the ICTY has contributed significantly in developing this area of law.

Moving on to the Iraq invasion, there are four key elements of this conflict which merit comprehensive analysis. Therefore, chapter four will concentrate on the defence of “superior orders” and the doctrine of command responsibility. Its primary objectives are to ascertain to what extent this somewhat archaic plea in mitigation is still utilised today and to scrutinise the culpability of senior military personnel in relation to transgressions committed by their subordinates. In what can be regarded as one of the major themes of this dissertation, the fifth and sixth chapter shall examine the liability of British soldiers adjudged to have contravened humanitarian law in the context of the Iraqi conflict. Reference shall also be made to the jurisdictional uncertainties surrounding the E.C.H.R.'s application in Iraq, a novel predicament facing British courts today.

It would amount to a substantial oversight to undertake a study of international humanitarian law and its accompanying criminal liability without considering the impact of the International Criminal Court[10], the first permanent institution dealing with criminal offences of an international nature. On this basis, both the achievements and challenges facing the ICC will be examined with particular attention being paid towards the United States persistent refusal to meaningfully cooperate with the ICC. Finally, the conclusions from each previous chapter shall be combined to formulate an overall response to the central research questions posed above.

International humanitarian law has proved to be an emotive topic. It is therefore unsurprising that the key issues have been the subject of fervent debate. There are a number of academic textbooks which provide an excellent overview of this subject area in general and several of these have been referred to for familiarisation purposes.[11] Yet as useful as these resources were, they did not provide a comprehensive analysis of the central themes relevant to this dissertation. Thankfully, there appears to be an abundance of literature devoted to these seminal issues, some of which shall be discussed below.

It is evident that the ICTY has been the target of substantial criticism, much of which appears to be unfounded or even capricious. For example, one author highlights that many critics believed that the establishment of the ICTY would represent another example of “international inertia” in the Yugoslav conflict[12] whilst another commentator contends that the creation of the tribunal amounts to a conciliatory gesture aimed at mitigating the extent of the international community's failure to swiftly resolve the crisis.[13] However, both arguments appear to be manifestly erroneous. A cursory glance at the ICTY website reveals that criminal proceedings have thus far been initiated against 161 individuals[14] therefore negating the “international inertia” assertion. Furthermore, to classify the tribunal as an apologetic act on the part of the international community is cynical at best as it is important to remember that before the implementation of the ICTY, there was no judicial mechanism in place to prosecute such violations. It has also been averred that notwithstanding the possibility of political interference, the chief drawback of the ICTY is its relative inexperience in the adjudication of war crimes trials.[15] Yet this argument is a moot point as a degree of inexpertness is surely an axiomatic consequence of establishing a new judicial body.

However, refuting these arguments in no way implies that the ICTY has been bereft of significant problems. On the contrary, it has encountered major challenges, many of which have been well documented. For instance, the Appeal Chamber's decision that the Tribunal possessed jurisdiction to rule on a motion which challenged the legitimacy of the ICTY's establishment has come under scrutiny.[16] One writer submits that it is highly dubious whether a panel of judges of the highest moral character and integrity would be capable of delivering an objective ruling regarding the legitimacy of their own institution.[17] There is a certain degree of credibility in the author's suggestion as it is cannot be definitively stated that it is outwith the realms of possibility that a judge's ruling could be biased when deciding such a matter.

A further difficulty which has plagued the ICTY is the matter of State co-operation. It has been highlighted that because the tribunal does not exercise control over the territory where the crimes occurred, it lacks the power to arrest or compel accused persons to appear before it.[18] It is therefore perfectly logical to assume that a correlation exists between the efficiency of the tribunal and the extent to which States are willing to assist in the arrest, detainment and transfer of suspects over into the custody of the ICTY.

With regards to the doctrine of command responsibility and the “superior orders” defence in the context of the Iraqi conflict, a number of interesting viewpoints have been advanced. When it comes to punishing soldiers for committing human rights transgressions, one commentator has validly pointed out that it would be absurd for military authorities to prosecute offenders if such orders in fact originated from senior personnel.[19] Interestingly, academics have not been the only group to express their views on this matter. Human Rights Watch, a non-governmental organisation which promotes the protection of human rights, has advocated both the appointment of a special prosecutor and the establishment of an independent commission to investigate and prosecute senior U.S. military officers found culpable of prisoner abuse.[20] As commendable as these suggestions are, it is highly unlikely that serious thought was ever given to their implementation as it could have resulted in potentially devastating ramifications for the Bush Administration. Supporters of this strategy may have fresh cause for optimism under the more liberal tenure of President Obama, but the likelihood that policies of this nature would actually be put into practice still seems remote. Lastly, it should also be noted that there has been extensive media coverage on both sides of the Atlantic of Iraqi prisoner abuse committed by both U.S[21] and U.K forces.[22]

Turning now to the ICC, the existing literature indicates that there are widely divergent viewpoints concerning the efficacy of the court. On the one hand, it has been posited that one of the main benefits emanating from the creation of the ICC was the express declaration that provisions applicable to internal armed conflicts attracted individual criminal responsibility.[23] This assertion is rather apt as the primary classification of serious violations of Common Article 3 of the Geneva Conventions as “war crimes” is undoubtedly representative of a significant advancement in international humanitarian law.[24]

Conversely, deficiencies in the Rome Statute have also been cited, namely the omission of enforcement and punitive measures in the event of a State's non-co-operation.[25] Again, this is a salient point to make. The ICC is heavily dependant on mutual collaboration between itself and the signatories of the Rome Statute. It logically follows that a lack of State co-operation would render the court largely toothless meaning that its creation could quite feasibly be described as an exercise in futility. It is clear that these arguments offer tangible evidence that the views on the ICC are rather polarised.

Finally, reference must me made to the International Committee of the Red Cross's guide to customary international law.[26] Although it is indubitably an indispensable text in understanding and interpreting the main instruments of international humanitarian law, it has been referred to sparingly on this occasion as greater attention has been devoted to the actual legal provisions currently in force.

In conducting research for this project, it has become evident that because international humanitarian law encompasses such a vast subject area, there are no categorical answers to the questions posed above with a multitude of differing opinions offered on a wide variety of topics. That being said, several research methodologies have been utilised in conjunction with one another in the hope that this will ensure that both a stimulating and balanced argument is provided.

An analytical approach has been adopted as the primary research methodology underpinning this dissertation. Such a strategy is justified in these circumstances as it is the most efficient means of collating and dissecting the extensive amount of relevant literature on this topic. Analysis of the main issues shall comprise a number of elements including the scrutiny of relevant case law & legislation, the consideration and discussion of academic viewpoints, and the factoring in of recent developments where appropriate. To facilitate this process, a number of data collection methods have been utilised including the extensive use of library-based resources such as academic textbooks and relevant journal collections. Electronic databases such as Westlaw and LexisNexis have also figured as prominent research tools whilst being supplemented by other web-based resources comprised of appropriate legal websites and up-to-date media outlets. Moreover, the international dimension of this thesis necessitated the incurrence of a trial subscription fee to Hein Online, a comprehensive American legal database. This action proved to be justified as it allowed for the perusal of scholarly materials which would have otherwise been inaccessible.

Ever since this project's inception, it has been envisaged that analytical discussions would be complemented by a degree of empirical research so as to provide this thesis with a measure of originality. This has been achieved through the creation of a short questionnaire which has been distributed to relevant academics in the U.K, the U.S & Canada in keeping with the global theme of this dissertation. The main aim of this exercise was to accumulate a range of viewpoints which would then be incorporated into the main body of the thesis.

Although the application of the above methodologies has resulted in the accomplishment of the primary research objectives, the process was beset by several noteworthy difficulties. Unfortunately, there were a number of relevant materials which could not be accessed as the university did not subscribe to these sources. This was regrettable in the sense that the particular texts in question were highly relevant to the subject-matter under consideration. In the context of the research questionnaire, securing the participation of willing academics was by no means a foregone conclusion as prospective enquiries were consistently rejected. Notwithstanding the fact that a significant number of recipients have failed to acknowledge receipt of the questionnaire, the majority of responses fell into one of two categories. Many academics cited busy schedules as their reason for non-participation which is perfectly understandable. On the other hand, several individuals held dubious opinions concerning this particular research approach. However, these reactions were somewhat anticipated therefore justifying the thorough and extensive implementation of this research technique.

As a result of time constraints and other academic commitments, it has not been possible to research this subject in as much depth as was originally intended. It was hoped that an opportunity would arise to undertake some quantitative research by conducting an opinion poll. Taking into account the level of controversy which often surrounds international humanitarian law, it was felt that an exercise of this nature would have been appropriate given the likelihood that the majority of people would have strong opinions on several of the main issues discussed above. Carrying out an opinion poll would also have proved advantageous in several key respects. In stark contrast with qualitative research methods such as focus groups, an opinion poll facilitates the collection of data from a diverse representative sample of society in a relatively short period of time. By employing such a method, this research paper would have been provided with a fresh perspective as conclusions regarding society's attitudes towards international criminal liability could have been extrapolated through the analysis of the statistical data at hand. In particular, it would have been fascinating to ascertain whether a marked difference in opinion exists based on objective factors such as age or gender.

Chapter 2: The ICTY - a mixed success?

At the outset, it is important to mention that although this chapter is primarily concerned with significant deficiencies of the ICTY, the significance of its contribution towards international jurisprudence is indisputable. It would be wholly appropriate to classify the tribunal as one of the fundamental underpinnings of modern international criminal law. The ICTY's achievements have been well documented including its rapid establishment with minimal resources[27] in order to satisfy the growing demand for the growing demand for an international judicial forum capable of prosecuting war crimes committed in the Balkans. Having not only provided the necessary impetus for the development of customary international law, the ICTY also served as the ‘springboard' for the establishment of several other international tribunals[28]and perhaps more importantly, the International Criminal Court.

One of the fundamental obstacles facing the ICTY since its inception has been the assertion of its legitimacy in recalcitrant States in which it purports to enjoy jurisdiction.[29] It has been aptly observed that States which oppose the international competence of the tribunal can simply grant their citizens immunity from prosecution under the principle of State sovereignty thus severely impeding the functionality of the ICTY.[30] The legitimacy of the tribunal has proved to be a recurring theme. This unfortunate fact is highlighted by the refusal of former Serbian political leader Radovan Karadzic to attend the preliminary stages of his war crimes trial.[31] Further evidence of this pattern can be discerned from the recent announcement that Vojislav Šešelj, leader of the Serb Radical Party, is to face additional legal proceedings for contempt of courts as a result of disclosing confidential information regarding protected witnesses.[32] Such conduct is illustrative of the blatant disregard still exhibited towards the tribunal by some defendants.

It is not difficult to empathise with victims' families who felt that justice had escaped them upon learning of the death of Slobodan Milosevic in custody. The frustration and need for closure felt by so many was concisely articulated by one mourner who stated that:

“His punishment could not bring back my son but it would be a drop of satisfaction in a sea of pain.”[33]

It is submitted here that Milosevic's death is representative of perhaps the gravest judicial error ever committed by the ICTY.

Before Milosevic's trial began in earnest, the prosecution lodged a motion for the joinder of the three indictments[34]regarding war crimes committed in Kosovo, Bosnia & Croatia respectively on the grounds that, inter alia:

“Joinder will result in a shorter and more consolidated trial timetable overall.[35]” [Emphasis added]

In hindsight, this is probably the most ironic pleading ever submitted in an international criminal trial. At first instance, the application was rejected as the Trial Chamber held that the connection between the three indictments was “too nebulous,[36]” a decision which, after close scrutiny, appears to be legally sound. Regrettably, the Appeals Chamber over-ruled this decision and ultimately adopted a much more liberal interpretation of the ICTY's joinder provisions.[37]

This thesis presents the hypothesis that the Appeal Chamber's ruling on this matter was materially influenced by the historical significance and political pressure surrounding the prosecution of the defendant. In the context of international criminal trials, it is important to remember that Milosevic arguably represents the most senior military figure to ever appear before an international judicial body. Looking back at the Nuremberg trials, ranking members of the Nazi regime were indeed prosecuted for their complicity in war crimes committed during the Second World War. However, the Führer was not one of them. It is theorised here that had the International Military Tribunal been able to try Adolf Hitler for humanitarian offences, it may well have adopted the same ‘mass charges' approach implemented by the ICTY. Therefore when it came to Milosevic, there was no precedent to follow meaning that the tribunal, for all intensive purposes, was entering uncharted legal territory. It is proposed that the impact of these external factors contributed significantly towards the ICTY's overzealous prosecution attempt.

Gideon Boas, former senior legal adviser to the Trial Chamber on the Milosevic case, advocates the alternative strategy of prosecuting a core group of crimes which are representative of the atrocities committed in the three States.[38] This suggestion is welcome as the adoption of such a method would have amounted to an efficient replacement of the “blanket approach” implemented by the ICTY which was largely responsible for rendering the case unmanageable. Notwithstanding the fact that this would have allowed the trial to proceed within more realistic contours, it would hopefully have helped to alleviate the sense of injustice felt by so many Eastern Europeans. It has been stated that Milosevic's death should not be held against the tribunal on the premise that he was given every procedural right to which he was entitled.[39] Whilst this assertion is prima facie accurate, the ICTY is essentially tasked with reconciling competing interests, namely the right of the accused to a fair hearing contrasted with the requirement for an efficient trial. It would be ridiculous to suggest that this is a simple task. Nevertheless, on this occasion, it is submitted that the ICTY's gauging of a reasonable balance was grossly miscalculated.

It is feasible that a correlation exists between the length of Milosevic's trial and the rather lenient rules governing the admissibility of evidence in trial proceedings. For example, a cursory glance of the tribunal's evidence provisions[40] indicates that there is no rule dealing with the admission of hearsay evidence. In the context of the ICTY, this could prove to be very dangerous. One commentator submits that because there is no prohibition on hearsay, the various parties to the conflict tend to utilise the tribunal as a vehicle for achieving their own specific objectives. Irrespective of whether the motive consists of revenge or provoking the opposition, the outcome is the same - the production of inaccurate or fabricated evidence.[41] The author's viewpoint is not without merit as the propensity to disseminate false information has been cited by another commentator as one of the main reasons behind the poor public perception of the ICTY in the Balkan States.[42]In short, it has been succinctly observed that:

“…the ICTY suffers from “legitimacy issues” in the sense that it's not perceived as legitimate or impartial by some of the communities that it ostensibly serves.”[43]

Given the political and ethnic volatility which permeates throughout the region, it is unsurprising that a number of divergent viewpoints exist.

Adopting a rigid set of rules that regulates the admissibility of evidence would cause significant problems given the multitude of States involved in the creation and management of the tribunal. In spite of this issue, the rules of evidence governing both the ICTY and the Scottish legal system shall now be compared, with recommendations being advanced where appropriate. The key disparity between the ICTY and Scotland in this respect is that whilst the propriety of evidence is largely left to the Trial Judges' discretion,[44] the laws of evidence in Scotland have evolved gradually as a result of an ever-developing body of case law which has consolidated the fundamental principles whilst being supplemented by statutory measures where appropriate. It is appreciated that the ICTY has never been in a position to enjoy such a benefit therefore it must be stressed that the following suggestions are purely theoretical.

If the tribunal's discretionary philosophy towards the admission of evidence was implemented in Scotland, then both the civil and criminal justice systems would grind to a screeching halt. In essence, the imposition of restrictions regarding the propriety of evidence has been imperative in preserving the expediency of the Scottish legal system. It is proposed that had similar safeguards been enacted at the ICTY, then this would have benefited the tribunal enormously. For example, the general exclusion of hearsay evidence is a well-ingrained tenet of Scots law[45] albeit there are certain exceptions where evidence of this nature is permissible e.g. hearsay evidence may be adduced in court where the maker of the statement is deceased.[46]

Hypothetically speaking, had such rules existed at the time of the Milosevic trial, then the ICTY would have enjoyed four distinct benefits. First and foremost, admissible items of evidence would have been afforded a greater degree of probative value. This would have had the corollary effect of minimising the extent to which the tribunal would have been deluged with vast quantities of unverified conjecture. Thirdly, the exclusion of impertinent evidence would have probably resulted in proceedings being concluded before the defendant's death. Lastly, and perhaps most importantly, the culmination of Milosevic's trial coupled with a guilty verdict would have resulted in a massive public relations boost for the tribunal as the prosecution of Milosevic would have contributed to a marked improvement in public opinion regarding the value and legitimacy of the ICTY.

Chapter Three: The international/internal armed conflict divide

The potential effectiveness of the Geneva Conventions was arguably compromised from their very inception owing to several restrictive conditions regarding their applicability.[47] World War II served as the catalyst for the implementation of the Conventions which were presumably aimed at preventing recurrences of wartime atrocities such as the Holocaust which eradicated approximately six million Jews across Europe. Proceeding on the rationale that this was indeed the prime justification behind the drafting of these international treaties, the inclusion of the “international armed conflict” distinction arguably represents a self-limiting approach which actually makes the accomplishment of the Conventions' original objectives a much more difficult proposition.

The underlying motive behind this categorisation was that it prevented these instruments from impinging upon the relationship between a State and its nationals thus ensuring that State sovereignty was maintained. Yet considering that the systemic purge of the Jews in Eastern Europe could quite rightly be described as the most barbaric and inhumane act of the 20th century, this reasoning is rather unconvincing. Furthermore, fast-forward over sixty years later and the weight attached to the exercise of unfettered domestic jurisdiction has dissipated dramatically. It has been submitted that the continual progression of international humanitarian law has negated the extent to which States can hide behind the traditional principles of nationality and sovereignty in order to avoid liability for their transgressions.[48]

The Tadic[49] judgment effectively illustrates the restrictive nature of the “nationality requirement” ensconced in the Fourth Geneva Convention. The seminal issue facing the Trial Chamber was whether the non-Serb civilian victims in Bosnia were under the control of a foreign Power engaged in the conflict. This argument was originally decided in the negative[50] and was detrimental in several key respects. The major consequence of this decision was that the civilians in question were only entitled to the protection offered under Common Article 3 of the Conventions which instituted minimum humanitarian standards of conduct applicable to domestic conflicts. By contrast, there is absolutely no scope for derogation[51] in relation to liability for actions which fall under the “grave breaches[52]” regime. Consequently, the major disparity between the deterrent factors of these respective provisions is blatantly obvious.

Perhaps one of the most contentious aspects of the Trial Chamber's ruling was that it gave rise to the legal absurdity that the defendant was culpable for crimes against humanity,[53] but was absolved of liability in respect of violations of the “grave breaches” regime. Close inspection of the ICTY Statute indicates that the categories of prohibited behaviour contained within each instrument bear striking similarities to each other. Moreover, it would be reasonable to suggest that the severity of the prescribed conduct under each heading is analogous on the whole. In adopting this hypothesis, it appears that Tadic initially avoided further prosecution on a legal technicality. Considering the brutality of the acts in question, it is difficult to reconcile this decision with the principal of logical judicial analysis.

Thankfully, the ICTY eventually arrived at the right decision, but in doing so, the Appeals Chamber was compelled to adopt a more expansive interpretation of the “nationality requirement.” It averred that the scope of Article 4 also encompassed civilians who, although sharing the same nationality with a Party to the conflict, no longer owed allegiance to that faction meaning that any modicum of protection which they had previously enjoyed was now lost.[54] It is reassuring to observe that the ratio decidendi of the Tadic Appeal ruling has been followed and substantially reinforced by subsequent case-law which has held that depriving individuals who share the same nationality as their captors of the protection afforded by the Geneva Conventions is incongruous with the very object and purpose of these instruments.[55]

Nevertheless, it is submitted here that the incremental development of humanitarian criminal liability through case-law and the enactment of additional statutory instruments is not representative of the most conducive approach in relation to the progression of international humanitarian law. It is acknowledged that because domestic courts are often presented with a myriad of unique circumstances, a degree of flexibility is not only advantageous, but is actually required so that judicial systems can operate efficiently. Yet the principal difference remains that whilst the majority of domestic legal systems are well-established, international law is still in the early stages of development, especially in light of the significant proliferation of international treaties which have been ratified since the Conventions entered into force a little over sixty years ago.

Although the majority of this chapter has been devoted to criticising the armed conflict distinction, it is important to consider the alternative theory that the complete abrogation of this division would result in the deterioration of well-established standards of individual criminal liability on the premise that several “grave breaches” have no corresponding offence in the laws of war.[56]If this hypothesis proved to be accurate, then the problem would appear to be paradoxical in nature. In stark contrast to the central argument of this chapter citing the inefficacy of the distinction, the author's contention offers support for the continued existence of the “grave breaches” provisions on the basis that their total abolition would have a debilitating effect on international humanitarian law. Assuming that this scenario came to fruition, then it is likely that the international/internal divide would retain its largely unwarranted position within international jurisprudence.

To conclude, it is proposed that it would have been advantageous if the Geneva Conventions had been applicable to all armed conflicts from their very inception. This would have precluded the possibility of complications such as those encountered in the Tadic case from ever arising. Additional support for the abolishment of this largely redundant distinction can be discerned from the analysis of one author who aptly points out that the majority of modern-day conflicts invariably contain both international and non-international characteristics.[57] Moreover, it has also been averred that to apply a different standard of criminal responsibility to conduct based on the classification an armed conflict defies logic.[58] It is plausible that uniform application of the Conventions would have contributed substantially towards the solidification of international law around the world. In reality, a period of almost twenty-eight years elapsed before supplementary measures were introduced which offered greater protection to civilian victims of internal armed conflicts.[59] After witnessing the horrors of World War II, perhaps this fragmentary approach was indicative of reluctance on the part of the international community to properly address the issue of humanitarian protection.

Chapter 4: “But I was only following orders:” The U.S & the doctrine of command responsibility in Iraq

Upon learning of the sadistic and inhumane practices being employed against Iraqi captives at the hands of American soldiers, then U.S President George W. Bush expressed his “deep disgust” at the manner in which these prisoners were being treated whilst vehemently stressing that such abhorrent behaviour was not representative of the U.S. Military as a whole.[60] When assessing the veracity of this statement, two conflicting viewpoints emerge. On the one hand, it is acknowledged that it would be preposterous to equate the misdemeanours of a small minority of servicemen with the overall conduct of American Forces in Iraq, especially in light of the fact that by mid-September 2003, the U.S. Army comprised almost half a million active personnel.[61] However, the authenticity of the President's expression of “deep disgust” is all the more questionable given that an independent military investigation conducted in the aftermath of these events concluded that a number of high-ranking officers were indirectly responsible for these human rights violations through the continual neglect of their official duties.[62] The findings of this inquiry shall be scrutinised in greater depth below.

Where found guilty of human rights abuses, the prosecution of junior military personnel is both justified and desirable. Nevertheless, it has been posited that if the maltreatment of inmates at Abu Ghraib was actually part of a widespread interrogation strategy utilised by the U.S. In Iraq, then liability may attach to those individuals further up the chain of command.[63] In practical terms, attributing culpability to senior Army officers is likely to prove problematic as it is often difficult to ascertain the truth in situations of this nature. Regard must also be had to the “credibility factor” in the sense that it is highly plausible that the word of a high-ranking military official would be preferred over that of an ordinary soldier.

On a more positive note, fresh cause for optimism was provided in this respect through the commission and subsequent publication of the Taguba Report which expounded upon the principal factors contributing to persistent inmate abuse at Abu Ghraib. It is submitted at the outset that the U.S. Military's swift response in light of these transgressions was commendable even though the inquiry does raise some contentious issues. One of the most compelling aspects of the Taguba Report was the stinging rebuke levelled at the commanding officer in charge of inmate detention who was adjudged to have failed in ensuring that subordinate military personnel had received adequate training in the performance of detainee operations.[64]In short, this declaration illustrates a gross failure under the doctrine of command responsibility and should have ideally resulted in the offending officer being punished accordingly. As one observer rightly points out, superior officers are best placed to influence the subsequent conduct of a large number of junior personnel.[65]

Unfortunately, this scenario did not transpire as all senior U.S military personnel involved in the scandal were absolved of any criminal wrongdoing. In fact, the most senior officer - Brigadier-General Janis Karpinski - had to endure the “hardship” of demotion having been found guilty for dereliction of duty.[66] It has been pointed out that dereliction of duty is essentially an offence against the State in the sense that the offender has failed to sufficiently discharge their vested powers in the context of disciplining subordinates. Yet where a superior officer assents to the offence of his underlings, the situation is exacerbated as the degree of injustice felt by victims is inevitably heightened.[67] In applying this rationale to the current discussion, it would seem logical to presume that the dearth of corrective measures aimed at preventing the reoccurrence of detainee abuse suggests that Brigadier-General Karpinski actually acquiesced - or was at least indifferent- to the degradation of Iraqi captives.[68]

In stark contrast, U.S Army Specialist Charles Graner was sentenced to ten years imprisonment for his role in this ignominious episode.[69] It is important to highlight that Graner did submit the argument that he was merely following orders. Nevertheless, whilst the defence of “superior orders” is still recognised within U.S. military law,[70]it would be inapplicable in this situation as no reasonable individual would have construed such orders as being legitimate. From a critical perspective, the defence of “superior orders” should be inoperative when utilised in an attempt to mitigate criminal liability in respect of serious human rights violations. Looking back on previous conflicts, willingness to follow orders is not difficult to comprehend. For example, it is likely that insubordination in Nazi Germany would have resulted in severe consequences for the recalcitrant officer.

Yet fast-forward sixty years later and this ability to empathise dissipates dramatically, especially when the perpetrators are representatives of a nation founded on the principles of liberal democracy. It would be ludicrous were a modern military tribunal to accept that soldiers of a reasonable disposition genuinely believed that they were obeying lawful orders by forcing detainees to simulate sex acts on each other. Helping to reinforce this submission is an example provided by one academic who contemplates whether a military court would entertain the notion of a soldier believing that an order was genuine where it involved wiring the prisoner's genitalia and threatening him with electrocution.[71]With an ever-increasing emphasis being placed on the development and safeguarding of human rights, military personnel need to exercise what could be termed “moral judgment” when deciding whether to obey commands from their superior officers. Thus by invoking the defence of “superior orders,” the Abu Ghraib suspects have shown themselves to be either extremely stubborn or incredibly naïve, the latter being the most plausible scenario.

Not to detract from the wanton barbarity of the Abu Ghraib maltreatment, but by imposing lengthy custodial sentences on low-level troops - and allowing high-ranking military officials to avoid penal sanctions - the U.S. Army is guilty of applying double standards. The concluding observations of Major-General Antonio M. Taguba are indicative of this position as he has no qualms when it comes to indicting ordinary troops on charges of violating international humanitarian law. Yet it is evident that he has marked reservations when attributing the same degree of liability to “senior leaders,” having only found them culpable of breaching military protocol.[72] By adopting this inconsistent approach, there is a significant possibility that the external credibility of the U.S. military could be severely tarnished. Even more disconcerting is that by failing to adequately discipline senior Army personnel - in the face of incontrovertible evidence condemning their involvement- the U.S. may be inviting global actors to draw the inference that the government implicitly consented to the use of such abhorrent practices. In an age of shifting alliances and global uncertainty, it would be prudent to take steps to firmly rebut this presumption.

Having apparently not heeded this warning, the Obama administration recently took the decision to block the release of images depicting further instances of humanitarian abuse committed by American soldiers.[73] Echoing the sentiments of U.S. Defence Secretary Gates, the author of the aforementioned Taguba Report also supports non-disclosure on the premise that it would further endanger the welfare of American forces serving abroad.[74]As of writing, the House of Representatives is currently considering a legislative proposal which - if ratified - will impose a blanket prohibition on the dissemination of photographs which show U.S forces mistreating foreign detainees.[75]

Unfortunately, the continual suppression of such material is only going to reinforce and exacerbate the notion of the U.S. as a persistent human rights offender. Minimising the amount of hostility experienced by American forces overseas is understandably a top priority of the U.S. government. However, it is hypothesised that there may in fact be several underlying motives behind this attempted concealment. From the government's perspective, shielding the true extent of humanitarian abuse from the consciousness of the American populace is desirable given the harmful effects that such revelations could have on public opinion. Furthermore, the privatisation of these photographs may comprise part of a damage limitation exercise vis-à-vis the questionable human rights record of the United States. It is this last point which lends itself to the argument of one American periodical which ironically points out that had President Obama opted to publish these images, it would have underscored the U.S.'s determination of ensuring that such gross humanitarian violations are not repeated.[76] Consequently, it may transpire that in hindsight, the Obama administration will realise that transparency would have been the best policy on this occasion.

Chapter 5: The European Convention of Human Rights in Iraq

The decision of the European Court of Human Rights[77] in Bankovic v Belgium[78] is authority for the proposition that the conduct of British soldiers in foreign territories will rarely fall within the jurisdiction of national or European law due to the territorial restrictions imposed on such legislation. It would have been unfortunate if this ruling had been interpreted as establishing a precedent whereby British military personnel were rendered immune from domestic prosecution in respect of human rights offences perpetrated against foreign civilians. Thankfully, this scenario has not materialised. Although the Bankovic judgment hinted that legal instruments such as the E.C.H.R. may possess extra-territorial jurisdiction applicability in a number of limited circumstances, the case of R. (on the application of Al-Skeini) v Secretary of State for Defence[79]was the first occasion whereby a British court expressly affirmed that domestic and European jurisprudence could apply to humanitarian law violations carried out by British soldiers in territories such as Iraq.

Due to the implications which this ruling may have on future human rights actions, the dissenting opinion of Lord Bingham of Cornwall merits brief analysis. His Lordship submitted a two-pronged argument concerning the extra-territorial effect of the Human Rights Act 1998.[80] Initially, he averred that if Parliament had intended the HRA 1998 to apply outside the borders of the U.K, a provision to this effect could have been easily inserted to reflect this intention.[81]Secondly, his Lordship argued that when the HRA 1998 came into force, Parliament could not have possibly foreseen the U.K's future involvement in the Iraqi invasion thereby rendering it highly unlikely that the presumption of territorial application had been rebutted.[82]

Prima facie, Lord Bingham's argument is cogent. There is indeed nothing within the HRA 1998 to suggest that its jurisdiction extends beyond the U.K. Nevertheless, the alternative viewpoint could be advanced that his interpretation of the HRA 1998 is rather old-fashioned. In the 19th century case of R v The Judge of the City of London Court, it was held that where the provisions of an Act are unambiguous, they must be strictly adhered to.[83]Over the last century or so, the methods of statutory interpretation have evolved considerably meaning that the courts are no longer concerned with the literal interpretation of a particular section. On the contrary, a more purposive approach has been adopted. This is clearly evidenced by a remark attributable to Lord Nicholls of Birkenhead in the case of MD Foods Plc v Baines where he states that when interpreting legislation:

“…there always comes a stage, before reaching a final decision, when one should stand back and view a suggested interpretation in the wider context of the scheme and purpose of the Act.” [84]

This is the approach which the House of Lords adopted when arriving at their decision. An additional benefit of this method is its compatibility with the increasing emphasis on the importance of human rights within the international community, a trend domestic legal systems should strive to emulate as far as is reasonably practicable.

For several different reasons, it is appropriate to classify the Al-Skeini decision as a landmark ruling. First and foremost, the House of Lords judgment will hopefully act as a stern reminder to the British military that they cannot operate carte blanche with impunity in armed conflicts. It is hoped that one of the ramifications of this ruling is that the standard of care afforded to civilians in foreign conflict zones will be significantly enhanced henceforth. Furthermore, the Al-Skeini decision also ensures that the U.K complies with its requirement to afford a domestic remedy to those individuals whose rights have been infringed by the State.[85]

More importantly, this ruling is praiseworthy as it has struck a difficult balance between defining - and arguably extending - the liability of British soldiers abroad whilst avoiding the unenviable outcome of national legislation enjoying unfettered jurisdiction outside the U.K. The court's declaration that the deaths of the first five civilians did not fall within the scope of the United Kingdom for the purposes of the E.C.H.R.[86] is important in several key respects. If this point had been decided in the affirmative, it could have opened the floodgates for similar claims from around the world, potentially deluging the judicial systems of the U.K and placing the courts under a tremendous amount of strain in the process.[87]

Secondly, the extension of the United Kingdom's liability in this manner would equate to a substantial encroachment on the territorial sovereignty of the particular State in question. Although some observers may contend that Iraq's territorial sovereignty has already been compromised, it is still submitted that such an occurrence would not have been conducive towards the establishment and solidification of a democratically-elected government, a novel objective when contrasted with the twenty-seven year reign of Saddam Hussein's oppressive Ba'ath regime. Indeed, the recent kidnapping and assassination of employees from the Iraqi Electoral Commission offers a stark reminder that there are still factions within Iraq who are intent on destabilising the Iraqi government by undermining the electoral process.[88]

Although the “right” decision may have been arrived at, the legal reasoning behind its adoption is questionable at best; namely that an obligation to secure the Convention Rights will arise only where a Contracting State is in a position to provide the entire spectrum of rights to all persons within its jurisdiction.[89]This “all or nothing” interpretation of the E.C.H.R. is unhelpful and stems from the Bankovic judgment whereby the court held that the Convention could not be applied in a piecemeal manner as there is nothing in the E.C.H.R which supports or affirms this position.[90]Yet it can equally be stated that the ECtHR have ostensibly relied on a qualification which has no legal grounding in the Convention itself. There is no express requirement providing that in order for the E.C.H.R to have effect, it needs to be applicable in its entirety. Such a rule would be incongruous with the fundamental principles justifying human rights protection e.g. providing protection to those who need it most. The ECtHR's reasoning on this matter has also been criticised in the sense that it, inter alia, fails to take into account the various types of right specified in the Convention.[91]

In summary, the applicability of the E.C.H.R to abuses occurring outside the U.K is another noteworthy victory in the quest for effective international criminal sanctions. Provided this jurisdictional extension does not compromise the sovereignty of other States, there is no convincing rationale to prevent it from becoming an integral component in the delivery of international criminal justice.

Chapter 6: The British military in Iraq - recent developments

Ever since Operation Iraqi Freedom commenced on the 20th March 2003, there have been numerous allegations of detainee mistreatment levelled at British soldiers. Less than a month after the invasion began, images surfaced showing British military personnel escorting hooded prisoners in Southern Iraq accompanied by allegations that the soldiers were imitating the earlier conduct of their American counterparts in Afghanistan.[92]It is not illogical to presuppose that the British Army must have been acutely aware that the practise of “hooding” violated international humanitarian law given that this technique has previously been classified as inhuman and degrading treatment under the E.C.H.R.[93] Expanding on the above proposition, it is hoped that the following discussion shall emphasise the likelihood that apart from British soldiers mirroring the conduct of their American Allies, there was actually a significant reluctance on the part of the U.K to challenge the legality of such behaviour. In a similar fashion to the preceding paragraph on the doctrine of command responsibility, recent developments give rise to the damaging inference that there may have been tacit acquiescence by the U.K government in the toleration of these abuses.

In March 2009, U.N. Special Rapporteur Martin Scheinin was highly critical of the U.K's alleged involvement in assisting the U.S. with their practice of extraordinary rendition, a claim strongly refuted by the Foreign Office.[94]In the report, Mr. Scheinin expresses concern over the increasing number of nations utilising State secrecy or national security provisions as a legitimate means of shielding themselves from criticism or liability arising out of their intelligence operations.[95]Although this document was produced in the context of combating terrorism, it provides a useful starting point for wider consideration of this issue.

There is undoubtedly an authentic requirement that certain categories of information should not be released into the public domain for national security purposes. However, it is imperative that protective measures are proportionate and do not create an “official smokescreen” whereby State agencies and officials can operate knowing that no liability will attach to their actions. For example, it is plausible that the prohibition on disclosure contained within the Official Secrets Act 1989[96] could be invoked by the government and/or intelligence services to preclude the investigation and subsequent prosecution of individuals alleged to have breached the human rights of civilians in Iraq. Fresh accusations of U.K participation in rendition practices have recently surfaced in which British personnel supposedly transferred two suspected Iraq terrorists into U.S custody to await their subsequent transportation to Afghanistan in early 2004. However, human rights charity Reprieve has adamantly claimed that one of the detainees - a Mr. Amanatullah - is in fact a Shia rice merchant with no links to extremist factions as was originally claimed by the U.K government.[97]

Interestingly, former Shadow Home Secretary David Davis's comments regarding these allegations lend further credence to the hypothesis posited at the beginning of this chapter when he states:

“But that has been our problem all along. Our mindset has been not to challenge the American approach to dealing with prisoners and suspects and that's when we end up with Abu Ghraib…”[98]

This assertion is made all the more pertinent when analysed in conjunction with the ruling in R. (on the application of Hassan) v Secretary of State for Defence where the court appeared to absolve the U.K of any liability in connection with a prisoner's death by placing great weight on the technicality that notwithstanding the fact that there may have been a senior U.K military presence at Camp Bucca, it was still in essence a U.S. military detention facility which consequently precluded the application of the E.C.H.R.[99]Furthermore, Sir John Sawers - the current head of MI6- has admitted that British officials were first alerted to the possible use of violent and inhumane treatment against prisoners at Abu Ghraib almost a year before these transgressions became public knowledge.[100]

It is acknowledged that much of the above discussion has been politically-centred, but it is submitted that such an approach is justified on the basis that it highlights a glaring hypocrisy when it comes to eradicating human rights abuses. In short, no progress is ever going to be made on the humanitarian front if there is continued collusion and a reluctance to dispute the maltreatment of prisoners on the part of the United Kingdom. The Hassan ruling can quite feasibly be interpreted as a “judicial cop-out” and as such represents yet another example of avoidance measures being taken to ensure that the U.K is not at variance with its American allies. Further confirmation of the U.K's hesitant approach towards proper engagement of this issue can be discerned from the laissez-faire attitude adopted by British authorities having been forewarned roughly a year in advance that detainee mistreatment was occurring at Abu Ghraib. The obvious question which arises is why swift intervention was not more forthcoming and one can only speculate as to the reasons behind this. Thus from the evidence presented above, the sentiments of David Davis do appear to possess considerable veracity. However, it is important to bear in mind that the burden of ensuring compliance with international humanitarian standards is not one for the U.K to bear alone. On the contrary, the international community needs to be more cognisant on the whole if the future reoccurrence of the atrocities committed at Abu Ghraib is to be avoided.

On a more positive note, there are encouraging signs that the investigation of such infractions is becoming more transparent, at least in the U.K. In November 2009, Defence Secretary Bob Ainsworth announced that a public inquiry would be held regarding the conduct of British soldiers following the “Battle of Danny Boy” in 2004 where it is alleged that a number of Iraqi civilians were unlawfully abused and killed. Mr. Ainsworth also pledged that the inquiry would enjoy the full support of the Ministry of Defence, insisting that it has nothing to hide.[101]

The Al-Sweady inquiry indubitably represents a significant milestone towards the increased attribution of criminal liability for gross human rights violations. However, the authenticity of Mr. Ainsworth's statement promising full cooperation from the M.O.D is rather dubious when read in the context of the judgment given in R.(on the application of Al-Sweady) v Secretary of State for Defence where it was held that the respondent had persistently failed to comply with his duty of disclosure, the court stating that, inter alia:

“The duty of disclosure on the Secretary of State in a case such as the present one is heightened by the fact that the allegations raised in this case concern some of the most important and basic rights under the ECHR.”[102]

It logically follows that although the Defence Secretary's assertion is prima facie encouraging, there does still appear to be an underlying reluctance on the part of the U.K government to deviate away from the clandestine approach it has adopted hitherto.

Chapter 7: The International Criminal Court - does U.S. opposition prevent the ICC from assuming its role as the new “jewel in the crown” of international law enforcement?

Before embarking on an analysis of the ICC, it must be appreciated that any examination of its effectiveness will be premature given that is has only been operational for approximately eight years. Indeed, it has been posited that:

“It must be given time to completely spread its wings.”[103]

The salient difference between the ad-hoc tribunals and the ICC is that the latter is a court of last instance which precludes the hearing of cases that have already been adjudicated by a signatory State.[104] Still in its infancy, the ICC is heavily reliant on the principle of “complementarity” with the subsequent conduct of national courts having a material bearing on the development of the court's jurisdiction.[105]In other words, the ICC has entered into a bilateral and reciprocal relationship with the Rome signatories. That being said, it is proposed that on this occasion, the ICC has sold itself short by failing to supplement the general requirement of State co-operation[106]with an array of punitive measures if such assistance is not forthcoming. Although some States have taken proactive measures to facilitate the practice of mutual collaboration,[107]it would be naïve to expect that all States would adopt this forward-thinking approach. Furthermore, it would appear that the ICC has partially compromised its own legitimacy through the implementation of the paradoxical “Transitional Provision,”[108] the existence of which could rationally be interpreted as providing an inducement for prospective signatory nations to ratify the Rome Statute.

Thus far, the greatest obstacle facing the ICC has been the sustained and active opposition of the United States. It therefore comes as no surprise that the central reasons underpinning this disapproval have been the subject of constant speculation. One of the most credible hypotheses advanced is that the U.S is reluctant to expose its senior military and political figures to the possibility of prosecution under the jurisdiction of the ICC on the premise that it would not institute domestic judicial proceedings against such individuals.[109]

This submission is validated by the enactment of protectionist legislation which, inter alia, bestows wide discretionary powers on the President to secure the release of American citizens imprisoned by - or at the behest - of the ICC.[110]In interpreting the wording of this provision, it is difficult to not draw the inference that the U.S. would equate the occurrence of this scenario with the severity of a hostage situation or the abduction of a high-ranking U.S. official,

As of writing, moves are afoot which -if adopted - would almost certainly preclude the possibility of the United States future acquiescence to the ICC's jurisdiction whilst exacerbating the amount of antipathy already directed towards this novel institution. Signatory States are currently deliberating as to whether the ICC should have the capability to prosecute the crime of aggression.[111]If ratified, this amendment could lead to the conviction and imprisonment of Heads of State who have initiated conflicts of questionable legality.[112] Consequently, it is somewhat predictable that a measure of this nature could generate considerable anxiety amongst a substantial number of States, not least of all the U.S. and the U.K.

Herein is the crux of the problem. The establishment of the ICC is undoubtedly a symbolic step in the quest for autonomous and uniform international criminal enforcement. Nevertheless, the concepts of war and politics have been inextricably intertwined for centuries.[113] Therefore prising these two components apart was always going to prove problematic. It is acknowledged that U.S. membership would indeed represent a significant coup for the ICC insofar as its resources, enforcement mechanisms and reputation would all enjoy significant enhancement. It is with an element of regret that the rationale is advanced that the U.S.'s obstinate refusal emanates from its desire to maintain its pre-eminent position as one of the dominant players on the world stage. For example, had the ICC been subservient to the U.N. Security Council, the status quo would have been preserved given the veto conferred on permanent members of the Council. In reality, this would have guaranteed that the United States exercised a high degree of control over the I.C.C. making ratification of the Rome Statute all the more probable.[114]

Admittedly, it is possible that accession to the ICC could be interpreted in some quarters as undermining the United States position in the global hierarchy given the prospect that government and military officials could be prosecuted for war crimes by an independent judicial body. One academic has contemptuously averred that the ICC was founded on the ulterior motive of redressing the power balance of the world order as opposed to disciplining those responsible for grave human rights violations.[115] Yet when examining the efficacy of ICC, the submission of conspiratorial and groundless theories does not contribute to a healthy academic discussion, irrespective of the institution's merits and fallacies.

To sum up, the trajectory of the ICC is inevitably going to be influenced by the adopted position of the United States rendering U.S. membership all the more desirable. Whether this indelible disdain can be overcome remains to be seen. Perhaps one method of achieving this goal would be to solicit U.S. participation on the proviso that retroactive prosecution is prohibited. In practical terms, this would mean that the United States accedes to the jurisdiction of the ICC with a “clean slate.” Yet in all likelihood, offering this standalone concession would contribute minimally towards the marked change of U.S attitudes towards the ICC. On the assumption that the United States shall maintain its policy regarding non-recognition of the ICC's jurisdiction, it has been commendably suggested that the U.S. should update its Military Justice Code and related legislation to achieve increased harmonisation with accepted norms of international criminal liability.[116] The adoption of a conciliatory measure of this nature would be dually advantageous for the United States. Not only would it demonstrate the U.S.'s commitment towards the furtherance of international humanitarian standards, but it would serve to mitigate the level of friction between the U.S. and the ICC. Whilst the situation would still be far from ideal, it would at the very least represent a step in the right direction.

Chapter 8: Concluding remarks & recommendations

Having undertaken a comprehensive analysis regarding the effectiveness of a variety of mechanisms utilised with the aim of attributing criminal liability to those responsible for committing grave humanitarian law violations against civilians, it is submitted that from a global perspective, the current situation remains fundamentally inadequate given that the enforcement measures which have been implemented have enjoyed limited success at best. In attempting to reach a balanced conclusion on the efficacy of these accountability strategies, it was imperative to adopt a global approach in order to accurately reflect the severity and magnitude of the problem facing international humanitarian law. It is hoped that this objective has been achieved through the selective focus on the armed conflicts in Iraq and the Former Yugoslavia respectively.

Before expounding upon the primary reasons behind the above assertion, it should be noted that this project is not a definitive treatise on the difficulties associated with enforcing international humanitarian law. Rather, this dissertation was intended to provide the reader with a detailed insight into some of the contemporary salient issues surrounding international criminal liability thereby contributing to a more thorough understanding of the problem at hand. Indeed, several of the topics discussed above could have single-handedly dominated the entire subject-matter of this thesis. Of course, it would have been desirable - not to mention intellectually stimulating - to extend the scope of this project to include other areas of discussion, but unfortunately this was not possible. It thus follows that further research is warranted into the application of criminal liability vis-à-vis breaches of international humanitarian law in the civilian context, with suggested areas of potential interest including how to effectively reconcile the adversarial positions of the ICC and the United States as well as a thorough scrutiny of China's dubious human rights record.

As can be discerned from above, there is a myriad of factors which have contributed to the overall insufficiencies of international criminal law. Initially, things did not get off to a promising start as the Geneva Conventions diluted the potency of international criminal liability through the implementation of divergent regimes of international protection depending on the characterisation of the armed conflict. The introduction of this distinction would have long-lasting and significant ramifications on the development of this area of law. As has been documented in chapter three, it was significantly problematic for the ICTY in the context of the Tadic litigation although the manner in which the tribunal resolved this legal predicament was commendable as it positively advanced the doctrine of individual criminal responsibility. Similarly, the extra-territorial application of the E.C.H.R. in Iraq - discussed in chapter four - has had much the same effect. Yet although it is likely that this expansion will have a welcome deterrent effect on British military personnel, several concerns remain; namely the realistic extent to which this principle can evolve before accusations alleging unwarranted intervention of a State's territorial sovereignty emerge. Moreover, the legal interpretation behind some of the relevant jurisprudence thus far has been highly dubious which highlights the necessity of further judicial clarification.

However, these elements pale in comparison when contrasted with the major hardship which is currently stunting the growth of international humanitarian law and the increased attribution of criminal liability. This affliction stems from the established nexus between armed conflicts and politics, a trend which appears to be strengthening. There is an abundance of evidence throughout this dissertation that verifies this assertion. Prominent examples include the shamefully lenient punishments handed down to the commanding officers in charge of the Abu Ghraib prison facility, the United Kingdom's indifferent attitude towards meaningfully engaging in the struggle to eliminate civilian humanitarian abuses, and the enactment of legislative measures which shield American politicians and military personnel from external accountability. Yet the most patent illustration of the negative effects of political interference can be discerned from the United States persistent refusal to become a party of the ICC, a potentially fatal setback to the evolution of international humanitarian law.

In the quest for efficient and consistent criminal sanctions concerning the perpetration of international human rights abuses, significant strides have been taken. With regards to the future expansion of international law, an impasse has been reached, one which may prove to be insurmountable. It is posited here that genuine progress in this area is contingent on the de-politicization of the enforcement processes. There needs to be a determined shift towards a permanent and globally recognised judicial system which prosecutes and punishes human rights offenders, a system unencumbered by political interference. Only time will tell as to whether this description will ever befit the ICC, but there is little cause for optimism at the moment. It is understandable that States may have reservations fuelled by, inter alia, concerns over sovereignty or the preservation of national interests. Nevertheless, the ICC is perfectly poised to serve as the catalyst for a major development of international humanitarian law, much in the same way as the ICTY did almost twenty years ago. To this end, renewed and concerted efforts should be made in the hope of facilitating a consensus between not only the court and the United States, but with other prominent global actors including Russia and China. It is suggested that increased dialogue between the respective parties would be a positive first step in this long process. In the interim, it would be prudent if the ICC took measures to further consolidate its position as an authoritative judicial organ such as the introduction of punitive measures to deal with recalcitrant member States. However, these efforts shall be in vain if a genuine apathy exists towards cooperating with the court. The world is essentially playing a waiting game in the sense that future progression will be largely determined by the reactions of prospective signatories. It shall therefore be interesting to observe whether the development of international humanitarian law has effectively plateaued or whether the international community will soon bear witness to the most noteworthy development in this area of law for approximately twenty years. Hopefully the latter theory proves accurate.

[1] Consideration was given to civilians as early as the mid-19th century. For example, Article 19, Instructions for the Government of Armies of the United States in the Field (Lieber Code) 24th April 1863 stated that where permissible, intimation should be made to the enemy regarding proposed targets so that harm to non-combatants could be minimised. However, it should be noted that this provision was by no means binding meaning that military commanders did not incur sanctions in the event that this rule was flouted.

[2] See Article 25 Hague Convention IV respecting the Laws and Customs of War on Land 1907

[3] Geneva Convention IV relative to the Protection of Civilian Persons in Time of War 1949 (hereinafter referred to as “GC IV”)

[4] The International Criminal Tribunal for the Former Yugoslavia (hereinafter referred to as the “ICTY”) was established when the UN Security Council adopted Security Council Resolution 827 on the 25th May 1993.

[5] In the aftermath of World War II, both the International Military Tribunal (IMT) and the International Military Tribunal for the Far East (IMTFE) were set up to prosecute German and Japanese war criminals respectively. However, the key difference between these tribunals and the ICTY is that whilst the former were established by the Allied Powers, (the so-called “victors of WWII”) it was envisaged that the ICTY would enjoy complete autonomy and would be free from political interference. Although this latter point is highly debateable, it is nevertheless beyond the scope of this research paper.

[6] See Article 8, Charter of the International Military Tribunal (IMT) 1945

[7] McCoubrey H., ‘From Nuremberg to Rome: Restoring the defence of superior orders' International & Comparative Law Quarterly 2001 50(2), 386-394

[8] Bonafe B., ‘Finding a proper role for command responsibility' Journal of International Criminal Justice 2007, 5(3), 599-618

[9] European Convention on Human Rights 1950 (hereinafter referred to as the “E.C.H.R.”)

[10] The International Criminal Court (hereinafter referred to as the “ICC”) is governed by the Rome Statute of the International Criminal Court 1998 which entered into force on the 1st July 2002 after ratification by sixty signatory States.

[11] Evans. M., International Law 2nd edition Oxford University Press: Oxford 2006 at chapter 26;

Shaw. M., International law 5th edition Cambridge University Press: Cambridge 2003 at chapter 21

[12] Scharf M., Morris V., The International Criminal Tribunal for the Former Yugoslavia: An Exercise in Law, Politics and Diplomacy Oxford: Oxford University Press 2004 at p.342

[13] Robertson G., Crimes against Humanity - The Struggle for Global Justice' London: Penguin Books 1999 at p.300

[14] International Criminal Tribunal for the Former Yugoslavia, ‘Achievements'

[15] Che Mook S., ‘Does the conflict in Yugoslavia highlight any deficiencies in the laws of war, their implementation or adjudication?' Coventry Law Journal 2004 , 9(2), 59-70 at p.65

[16] Decision on the Defence Motion on Jurisdiction, Prosecutor v Tadic, Case No. IT-94-1-T, 10th August 1995. The Appeals Chamber largely based its decision on the principle of ‘kompetenz-kompetenz' (the inherent right of a tribunal to decide whether it has jurisdiction over a particular issue). Whilst the Appeals Chamber did acknowledge that it was possible to restrict this power in certain circumstances, it stated in its judgment at para.19…”But it is absolutely clear that such a limitation, to the extent to which it is admissible, cannot be inferred without an express provision allowing the waiver or shrinking of such a well-entrenched principle of general international law. As no such limitative text appears in the Statute of the International Tribunal, the International Tribunal can and indeed has to exercise its “compétence de la compétence”…”

[17] Kerr R., The International Criminal Tribunal for the Former Yugoslavia: An exercise in Law, Politics and Diplomacy' Oxford: Oxford University Press 2004 at p.65

[18] La Haye E., War Crimes in Internal Armed Conflicts Cambridge: Cambridge University Press 2008 at p.333

[19] Garraway C., ‘Abu Ghraib - another black hole? Military excesses? Is there a right way of dealing?' Journal of International Criminal Justice 2004, 2(4), 981-987 at p.985

[20] ‘Getting Away with Torture? Command Responsibility for the U.S. Abuse of Detainees' Human Rights Watch, April 2005, Vol.17, No.1(G) at pp 82-86

[21] Shanker T., ‘Iraq prisoner abuse reported after Abu Ghraib scandal' The New York Times 8th December 2004 available:

[22] Burns J. ‘Soldier arrested as Iraqi prisoner abuse probed' Financial Times 14th February 2006

[23] Pejic J., ‘Accountability for international crimes: From conjecture to reality' International Review of the Red Cross 2002, No.845, p.13-33 at p.21

[24] See Article 8(2)(c) Rome Statute of the International Criminal Court 1998

[25] Broomhall B., International justice and the International Criminal Court: between sovereignty and the rule of law Oxford: Oxford University Press 2003 at p.156

[26] Henckaerts J.M., Doswald-Beck L., Customary international humanitarian law Cambridge: Cambridge University Press 2005

[27] Cassese A., ‘The ICTY: a living and vital reality' Journal of International Criminal Justice 2004, 2(2), 585-597 at p.590-591. When reading this article, it is worth bearing in mind that the author is a former Judge and President of the ICTY. Therefore it is inevitable that his opinions will be somewhat coloured in favour of the ICTY although to his credit, he does concede that the tribunal has encountered significant problems.

[28] The International Criminal Tribunal for Rwanda came into existence on the adoption of Security Council Resolution 955 on the 8th November 1994. It is situated in Arusha, Tanzania.

[29] Article 1 Statute of the International Tribunal for the Former Yugoslavia 1993 (hereinafter referred to as the “ICTY Statute 1993”

[30] Miller W., ‘Slobodan Milosevic's Prosecution by the International Criminal Tribunal for the Former Yugoslavia: A Harbinger of Things to Come for International Criminal Justice' 22 Loyola of Los Angeles International & Comparative Law Review (1999-2000) 553 - 580 at p.565

[31] Zimonjic V., ‘Radovan Karadzic snubs Hague Court' The Independent 26th October 2009

[32] Prosecutor v Vojislav Šešelj, ‘Prosecutor's Motion under Rule 77 Concerning Further Breaches of Protective Measures (Three Books),' Trial Chamber, Case No. IT-03-67, 4th February 2010

[33] Walker T., ‘Milosevic death cheats his victims' The Times 12th March 2006

[34] Rule 49 ICTY Rules and Procedure of Evidence(hereinafter referred to as the “ICTY rules) provides that two or more crimes may be included under one indictment provided that the acts in question form part of the same transaction (see Rule 2, ICTY Rules for the definition of “transaction”) and that they were both perpetrated by the accused.

[35] Prosecutor v Milosevic, ‘Prosecution's Motion for Joinder,' Case No's IT-99-37-PT, IT-01-50-PT & IT-51-01-PT, 27th November 2001 at para 32.

[36] Prosecutor v Milosevic, ‘Decision on Prosecution's Decision for Joinder,' Trial Chamber, Case No's IT-99-37-PT, IT-01-50-PT & IT-51-01-PT, 13th December 2001 at para 45.

[37] Prosecutor v Milosevic, ‘Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder,' Appeals Chamber, Case No's IT-99-37-AR73, IT-01-50-AR73 & IT-01-51-AR73, 18th April 2002 at para 19

[38] Boas G., The Milosevic Trial: Lessons for the Conduct of Complex International Criminal Proceedings Cambridge: Cambridge University Press 2007 at p.128

[39] Dissertation Research Questionnaire - Responses of Dr. James Sloan, Lecturer in International Law, Glasgow University, 27th January 2010 - see Appendix 1

[40] Section 3, Rules 89-98, ICTY Rules

[41] Murphy P., ‘Excluding justice or facilitating justice? International criminal law would benefit from rules of evidence' International Journal of Evidence & Proof 2008, 12(1), 1-31 at p.15

[42] Klarin M., ‘The impact of the ICTY trials on public opinion in the former Yugoslavia' Journal of International Criminal Justice 2009, 7(1), 89-96 at p.90

[43] Dissertation Research Questionnaire - Responses of Professor Robert D. Sloane, Visiting Associate Professor of Law, University of Michigan Law School, 23rd March 2010 - see Appendix 2

[44] Article 15, ICTY Statute 1993

[45] Teper v R [1952] A.C. 480 per Lord Normand at p.486 where he states that… “The rule against the admission of hearsay evidence is fundamental. It is not the best evidence and it is not delivered on oath.”

[46] S.259(2)(a) Criminal Procedure (Scotland) Act 1995

[47] Before the Conventions are engaged, the conflict needs to be of an international character.(Common Art 2, GC's) In the context of wartime civilian protection, individuals must be within the jurisdiction of a Party to the conflict which possesses a different nationality to themselves (Art 4 GC IV)

[48] Wagner N., ‘The development of the grave breaches regime and of individual criminal responsibility by the International Criminal Tribunal for the Former Yugoslavia' International Review of the Red Cross 2003, No.850, p.351-385 at p.374

[49] Prosecutor v Tadic, Trial Chamber, Case No. IT-94-1-T, 7th May 1997 (hereinafter referred to as “Tadic Trial Chamber Judgment 1997.”)

[50] See Tadic Trial Chamber Judgment 1997 paras 606 -607 where the Trial Chamber decreed that there was a lack of decisive evidence which would give rise to the conclusion that the armed forces of Republika Srpska (one of the major political movements in Bosnia & Herzegovina) were de facto agents of the Government of the Federal Republic of Yugoslavia. Although it was stated that the Republika Srpska constituted highly dependent allies of the Yugoslav government, the indirect involvement of the latter in the conflict did not establish the requisite degrees of command and control necessary for the abovementioned relationship to exist.

[51] Art 148 GC IV

[52] Art 147 GC - there are numerous types of conduct classified as “grave breaches.” These include, but are not limited to, hostage-taking, wilful killing and unlawful deportation.

[53] Art 5, ICTY Statute 1993

[54] Prosecutor v Tadic, Trial Chamber, Case No. IT-94-1-A, 15th July 1999, para 164

[55] Prosecutor v Delalic & Others, ‘Celebici camp case,' Appeals Chamber, Case No. IT-96-21-A, 20th December 2001, para 81

[56] Stewart J., ‘The future of the grave breaches regime: segregate, assimilate or abandon?' Journal of International Criminal Justice 2009, 7(4), 855-877 at p.867-868

[57] Kolb R, Hyde R., An Introduction to the International Law of Armed Conflicts Oxford: Hart Publishing 2008 at p.258

[58] Rowe. P., ‘The International Criminal Tribunal for Yugoslavia: the decision of the Appeals Chamber on the interlocutory appeal on jurisdiction in the Tadic case' International & Comparative Law Quarterly 1996, 45(3), 691-701 at p.698

[59] Protocol Additional to the Geneva Conventions of 12th August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8th June 1977

[60] Davis J., 'Alleged abuses evoke 'deep disgust' in Bush' Chicago Tribune 1st May 2004

[61] U.S Army, 'Army Demographics: FY03 Army Profile' available:

[62] Major General A.M. Taguba, Article 15-6 Investigation of the 800th Military Police Brigade, 2004 (hereinafter referred to as the “Taguba Report.”)

[63] Arnold R., 'The Abu Ghraib misdeeds: will there be justice in the name of the Geneva Conventions?' Journal of International Criminal Justice 2004, 2(4), 999-1006 at p.1003

[64] Taguba Report p.43, para 21

[65] ‘Dissertation Research Questionnaire - Responses of Prof. Sonja B. Starr, Associate Professor of Law, University of Michigan -1st February 2010' - see Appendix 4

[66] Reynolds P., ‘Junior ranks take flak for Abu Ghraib' BBC News 30th August 2007 available:

[67] Sepinwall A., ‘Failures To Punish: Command Responsibility in Domestic and International Law' 30 Michigan Journal of International Law (2008-2009) 251-303 at p.295

[68] Taguba Report p.20 at para 14 where Maj-General Taguba states that: “Despite this documented abuse, there is no evidence that BG Karpinski ever attempted to remind 800th MP Soldiers of the requirements of the Geneva Conventions regarding detainee treatment or took any steps to ensure that such abuse was not repeated.”

[69]'10 years for Abu Ghraib's chief torturer' The Telegraph 16th January 2005 available:

[70] Rule 916(d), Manual for Courts-Martial, United States, 2008 edition.

[71] Solis G., ‘Obedience to orders: history and abuses at Abu Ghraib prison' Jounral of International Criminal Justice 2004, 2(4), 988-998 at p.996

[72] Taguba Report p.50, para 1

[73] ‘Gates blocks abuse photos release' BBC News 15th November 2009 available:

[74] ‘U.S. General: ‘mere description' of torture photos ‘horrendous'; controversy over release grows' New York Daily News 28th May 2009 available:

[75] Detainee Photographic Records Protection Act of 2009

[76] ‘The battle over detainee abuse photos' Los Angeles Times 17th September 2009 available:

[77] Hereinafter reffered to as the “ECtHR.”

[78] Bankovic v Belgium (2007) 44 E.H.R.R. SE5

[79] R. (on the application of Al-Skeini v Secretary of State for Defence [2007] H.R.L.R. 31(hereinafter referred to as the “Al-Skeini decision.”) This case was a significant step forward in the context of punishing breaches of international humanitarian law involving civilians. Thus it is felt that a brief factual overview is warranted. This action centred on the deaths of six Iraqi civilians who were killed by British armed forces in 2003. Five of the deceased were shot and killed in isolated incidents. However, it was the death of the sixth civilian which proved to be highly contentious as he allegedly died as a result of injuries inflicted by British troops whilst being detained at a British military base. Although the House of Lords held that the deaths of the first five civilians did not occur within the jurisdiction of the U.K., the same could not be said for the sixth deceased. Consequently, s.6(1) Human Rights Act 1998 was deemed to possess extra-territorial applicability in respect of this individual's death.

[80] Hereinafter referred to as the “HRA 1998.”

[81] Al - Skeini decision at p.949

[82] Ibid at p.955

[83] R v The Judge of the City of London Court [1892] 1 Q.B. 273 per Lord Esher M.R. at p.290

[84] MD Foods Plc(formerly Associated Dairies Ltd) v Baines [1997] A.C. 524 per Lord Nicholls of Birkenhead at p.532

[85] Article 13 E.C.H.R.

[86] Article 1 of the E.C.H.R obliges Contracting States to make available to everyone the rights and freedoms set out in Section 1 of the Convention.

[87] Thankfully, the HRA 1998 would ameliorate the effect of a mass plethora of claims. S.7(8) states that a person will only be considered a victim of an unlawful act if he would be a victim in the context of Article 34 E.C.H.R. if proceedings were initiated in the ECtHR in respect of the complained conduct. Notwithstanding this provision, it is still argued that had this point been decided differently, it would have placed undue strain on the domestic legal systems of the United Kingdom.

[88] Hastings M., ‘Iraqi election workers targets for insurgents' Washington Post 21st December 2009

[89] Al-Skeini decision at p.971

[90] Bankovic v Belgium (2007) 44 E.H.R.R SE5 at para 73

[91] King H., ‘Unravelling the extraterritorial riddle: an analysis of R (on the application of Hassan) v Secretary of State for Defence' Journal of International Criminal Justice 2009, 7(3), 633-643 at p.640

[92] Happold M., ‘UK troops ‘break law' by hooding Iraqi prisoners' The Guardian 11th April 2003

[93] Ireland v United Kingdom (1979-80) 2 E.H.R.R. 25

[94] ‘UN criticises UK ‘rendition role' BBC News 10th March 2009 available:

[95] Scheinin M., ‘Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while counteracting terrorism' UN Human Rights Council, 10th Session Agenda Item 3, 4th February 2009 at para 59

[96] s.1 Official Secrets Act 1989 provides that it is an offence if a member of the intelligence or security services - past or present - discloses any information in connection with his post without first having obtained lawful authority to do so.

[97] ‘The truth about two men rendered by the U.K to Bagram' Reprieve 7th December 2009 available:

[98] ‘UK accused of rendition over men arrested in Iraq' BBC News 7th December 2009 available:

[99] R(on the application of Hassan) v Secretary of State for Defence [2009] EWHC 309 (Admin) per Justice Walker at para 33

[100] Savage M., ‘MI6 chief reveals advance warning of Abu Ghraib problems' The Independent 16th December 2009

[101] ‘Inquiry announced into ‘Battle of Danny Boy' Iraq Abuse Claims' The Times 25th November 2009 available:

[102] R.(on the application of Al-Sweady) v Secretary of State for Defence [2010] H.R.L.R. 2 per L.J Scott Baker at p.19

[103] Dissertation Research Questionnaire - Responses of Professor David M. Crane, Professor of Practice, Syracuse University College of Law, 3rd February 2010 - see Appendix 5

[104] Article 17, Rome Statute of the International Criminal Court 1998 (hereinafter referred to as the “Rome Statute 1998.”) Presumably, one of the central motives behind the implementation of this rule was to ensure compliance with the ne bis in idem principle which prohibits an individual being tried twice for the same offence - see Article 20, Rome Statute 1998

[105] Dissertation Research Questionnaire - Responses of Professor Peter Rowe, Professor of Law, Lancaster University, 11th January 2010 - see Appendix 5

[106] Article 86, Rome Statute 1998

[107] For example, the U.K enacted the International Criminal Court Act 2001 to give domestic effect to the provisions of the Rome Statute 1998.

[108] Article 124 of the Rome Statute 1998 provides ratifying States with the option of opting-out of the ICC's jurisdiction in relation to war crimes offences for a period of seven years. In principle, the notion of a transitional period is logical as it would facilitate the implementation and application of the Rome Statute on the domestic level. Nevertheless, it is submitted that the current seven year impunity from war crimes prosecution is excessively lengthy which in turn causes difficulty when attempting to reconcile this provision with the concept of a “period of change.”

[109] Hafner G., ‘An attempt to explain the position of the USA towards the ICC' Journal of International Criminal Justice 2005, 3(2), 323-332 at p.327

[110] Sec. 2008(a) American Service-Members' Protection Act 2002 provides that “The President is authorised to use all means necessary and appropriate to bring about the release of any person described in subsection (b) who is being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.”

[111] Article 5(2)(d) Rome Statute 1998. From its inception, the ICC has always possessed the rationae materiae vis-à-vis the crime of aggression. However, the exercise of this jurisdiction is conditional on the adoption of a provision which defines the parameters of the offence and sets out the conditions upon which the ICC must act.

[112] Gilligan A., ‘International Criminal Court proposes powers to try politicians who wage ‘illegal wars' The Telegraph 30th January 2010

[113] Wintour P. ‘Gordon Brown to appear at Chilcot Inquiry before general election' The Guardian 22nd January 2010 - This assertion is still pertinent today and is effectively illustrated by Prime Minister Gordon Brown recent appearance before the Chilcot Inquiry to justify his actions in relation to the 2003 invasion of Iraq.

[114] Schabas W., ‘United States hostility to the International Criminal Court: it's all about the Security Council' European Journal of International Law 2004, 15(4), 701-720 at p.716

[115] Goldsmith J., ‘The Self-Defeating International Criminal Court' 70 University of Chicago Law Review (2003) 89-104 at p.100-101. From reading this article, it does not take long for the reader to discern that the author vehemently opposes the ICC through the propagation of views including - but not limited to - the fact that the ICC is essentially a toothless institution without U.S. support. Whilst everyone is entitled to their opinion, this commentary comes dangerously close to being justifiably classified as “anti-ICC rhetoric.”

[116] Wayde Pittman T., Heaphy M., ‘Does the United States really prosecute its service members for war crimes? Implications for complementarity before the International Criminal Court' Leiden Journal of International Law 2008, 21(1), 165-183 at p.182