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Question/Comment
31 December:   Some interesting points by Scipio. Scipio's argument that the reference to "enforcement measures under Chapter Vll" is inconsistent with the view that the UN does not involve itself in internal affairs of members states in certain situations is not something I can entirely agree with. We start from the premise of sovereign integrity (see article 2.7). If one looks at the UN resolutions on Kosovo, they used phrases such as "affirming the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia". Resolution 1244 referred to the determination "to resolve the grave humanitarian situation in Kosovo, Federal Republic of Yugoslavia.... ". In other words, the UN recognised that Kosovo was within the territory of Yugoslavia, ie Serbia. The extent of any international threat is difficult to understand, as Serbia was not threatening anybody. The problem was clearly internal, with the Albanian Kosovars wanting to break away and form their own independent state. It would have become international if that were lawfully permitted to happen and then Serbia and the new state of Kosovo were to go to war. You may remember that the early recognition of the break-away Yugoslav states of Slovenia, Croatia and Bosnia internationalised the conflict between Yugoslavia (Serbia) and the other newly recognised nations. Kosovo has had very limited international recognition that it is, in fact, a legitimate state. Most nations do not recognise it.

The authorisation of enforcement measures under Chapter Vll (mentioned at the end of article 2.7) I suggest does not ipso facto mean military action. Article 41 makes it clear that the "Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions..." But even if military enforcement measures are to be taken under article 42, that follows a UN authorisation eg where there is a threat to international peace. There was no mandate for any military violation of Yugoslav territory in Kosovo. Resolution 1239, passed on 14 May 1999, almost 2 months after the NATO bombing started on 22nd March 1999, still referred to Kosovo as part of Yugoslavia and reaffirmed "the territorial integrity and sovereignty of all States in the region". It made no reference to Chapter VII military action and was mainly concerned with the plight of refugees.

The fact remains that the UK and US were looking to settle a score with Milosevic, after the Bosnian war (and even though it was largley due to Milosevic that the Dayton Agreement was successful. He signed the agreement in place of Karadic who the ICTY had just indicted as a war criminal, thereby potentially hindering the peace process). The humanitarian justification for invasion, hyped up by the press and Kosovo Albanians, really evaporated upon closer examination. President Clinton was being fed reports that a 100,000 people had been killed and that he needed to act quickly to intervene. There was also a self interest in hyping the figures. As Dugi Gorani, an Albanian Kosovan interpreter told the BBC, "The more civilians were killed, the chances of international intervention became bigger, and the KLA of course realised that. There was this foreign diplomat who once told me 'Look unless you pass the quota of five thousand deaths you'll never have anybody permanently present in Kosovo from the foreign diplomacy.'"

The hundreds of thousands allegedly killed and displaced in fact were much lower, at something like 11,000 killed on both sides. That is still a tragic figure, but is nowhere near the sorts of numbers being used as a US-UK justification for intervening in Yugoslavia's internal affairs. In terms of the numbers of refugees, some believe that their plight actually was aggravated by the NATO bombing campaign, as people took to the woods and forests to hide. We should also remember that NATO killed its share of civilians. Yugoslavia claimed that about 6000 were killed by NATO. In total something like 1,500 are admitted to by NATO as having been killed in airstrikes alone, including those killed when NATO aircraft bombed an Albanian refugee convoy (for which they later apologised) killing about 60; the bombing of the Chinese Embassy, another mistake; the targeting of the State TV station, killing 16 journalists; and the bombing of Dubrava prison in Kosovo, killing over 80 prisoners and guards. In August 2000 the International Criminal Tribunal for the former Yugoslavia (ICTY) announced that it had exhumed 2,788 bodies in Kosovo, but declined to say how many were thought to be victims of war crimes. Of course, war crimes were committed by both sides and, some say, by NATO in its targeting of civlian objects.

States unlitaerally violating the sovereignty of another state for humanitarian reasons is in my view a breach of the UN Charter. That type of action requires UN authorisation which, in a genuine case, would doubtless be readily forthcoming. As has often been said, there are only two legal bases for military action: "the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations" under article 51 and authorisation under article 42. That's it. I suggest that the enforcement measures referred to in article 2.7 are those determined by the United Nations, not by any regional group of states or individual states. As there was no UN mandate for intervention in Kosovo, as Russia and China would have vetoed it, there was no legal basis open to argue other than self defence. That defence can only be relied on "if an armed attack occurs against a Member of the United Nations" and only lasts until such time as the UN has taken necessary measures to restore peace. As there was no armed attack by Serbia on a member of the UN, that defence falls away. As there is no defence of humanitarian need in the Charter, I suggest there was no legal basis for what was done by NATO's unlilateral action. Moreover, the state of Kosovo does not, in my view, have any standing internationally as it has failed to acquire sufficient recognition by other states. If the ICJ legitimises what has been done, then I suggest it gives a green light to other large ethnic groups living in provinces within the territory of UN member states, to declare independence. It is a very dangerous precedent to set, in my humble opinion.   Anthony
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31 December:   If the court of justice thinks Kosovo has a case, then the plight of the Kurds will have to be recognised and Turkey, Syria, Iraq and Iran will have to give back the land they took when they wiped out the state of Kurdistan. Oh, and by the way, then there are the Palistinians. Happy New Year.   Will
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It was the League of Nations/UN that created the state of Israel and effectively dispossessed the Palestinians, thereby creating many of the problems we see today in the Middle East. They failed to think it through properly to arrive at a just solution. Happy New Year to you and everyone.   Aspals
30 December:  Anthony has certanly chosen to end the year with a great debate! I would make two points in reply him.
1. Resolution UNSCR 1244 recognised that the situation in the region continued to constitute a threat to international peace and security. So there was an international threat.
2. Article 2.7 of the UN Charter says, "Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll." At first sight it looks like a hands off approach in internal matters, but the reference to "enforcement measures under Chapter Vll" is inconsistent with the view that the UN does not involve itself in internal affairs of members states in certain situations. Happy New Year.   Scipio 
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30 December:   The ICJ has started its deliberations in the case of Kosovo, considering the validity of the declaration of independence from Serbia. It is a very important case. One of the Kosovo-Albanian supporters of the declaration of independence is the UK. Another is the US. Both have an unhappy history in that region, bearing in mind the lack of a legal basis for their invasion of Kosovo back in 1999. So, I suppose they have to support the Kosovo Albanians in order to attempt to legitimise what they did. It is difficult to see how there is any genuine justification for what happened, either in the UN Charter or the NATO treaty. The matter is of great concern because if the court legitimises the US-UK led action it will give a green light to other internal regions of UN member states that wish to create an independent state in their own right, in defiance of any lawful process, safe in the knowledge that they will be supported in their objective - especially if they are perceived to be of value to any of the super powers. Supporting Kosovo independence was a way of punishing Milosevic and the Serbians for the breakup up of Yugoslavia and the war in Bosnia. It will be extremely worrying to smaller, less powerful states if the court legitimises internal regime change by force when there are no, or insufficient, serious external threats to other nations. One thinks immediately of Cyprus; a small island with no military forces to speak of, invaded by over 30,000 heavily armed Turkish troops. The island is still divided after almost 36 years of Turkish occupation. That occupation has been declared illegal, together with the political and legal regime that was created. Only Turkey recognises Northern Cyprus as a state. The United Nations Security Council challenged the legality of Turkey's action. Article Four of the Treaty of Guarantee 1960 gave the right to guarantors to take action with the sole aim of re-establishing the state of affairs. The invasion had the opposite effect. It failed to safeguard the Republic's sovereignty and territorial integrity and led to partition of the island, followed by forced expulsion of Greeks, a grave breach of article 147 of GC IV and art 85(4)(a) of AP I. The Turks also changed the demography (a grave breach of article 49 of GC IV and art 85(4)(a) of AP I) of the northern part of the island by importing thousands of people from mainland Turkey. The proclamation of an independent Turkish state of Northern Cyprus was condemned by the UN in UNSCR 541 of 1983.
Kosovo was (and still is in my view) a legitimate and integral part of Serbia. Even UNSCR 1244 recognised that fact (see the preamble). If the UN Charter is to continue to be respected as the legal code that governs the civilised world, then its principles must be followed and bullies must not be permitted to have their own way. Or else, where will it stop?   Anthony
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23 December:  The more the Chilcot Inquiry tries to justify itself against accusations about its ineffectiveness, the more it drops itself in the poo and shows how farcical it is. The latest news is that Gordon Brown will be called to give evidence, but not until after the election. Well, we wouldn't want to harm his chances, would we. What on earth was the point of this very expensive charade anyway? It's so obviously a whitewash.   Will 
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22 December:   Ditto, Tess. Enjoy the snow, and cold.   Will
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22 December:  i wont need amnesty for help. enjoy skiing Tess.    pete 
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22 December:  Merry Christmas Aspals and everybody. We're off skiing today, yippee.   Tess 
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And to you, too, Tess. Have a super time and "see you" when you get back    Aspals
22 December:  I hope Pete never needs the services of any of these pinko organisations like Amnesty. They do a lot of good work for people who would not otherwise have a voice or someone to defend them against injustice.    Briony 
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22 December:  since when have judges understood what the ordinary man thinks. there pinko beliefs will finish us off and hand victory to the enemies of the people. we should elect our judges like they do in the states and then we can find out if they are left leaning amnesty card carrying liberals with there heads stuck in the clouds or if theyve got there feet planted on the ground.    pete 
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18 December:   Isn't it strange how most people find the attitude of our courts and the extent to which they go to protect the human rights of terrorist suspects over the rights of the rest of us as out of touch. The item by Benedict Brogan (by the way) that Anthony pointed out is just another example of how people are losing confidence. Just reading some of the comments in this morning's Telegraph makes that plain. I can't remember any time in the past when our judges have been held in such low regard as now. People are actually asking whose side they are on. If judges don't realise this then they need to read newspapers and get down into the pubs and restaurants to find out how really angry people are. This is particularly bad news when you think back only a few years to how our judges were respected. That was when English law held sway and there was no obedience to a spra national court sitting in Strasbourg. Human Rights was a principle enshrined in English law and we didn't need an Act to point that out.
Terrorism is a nasty business. Fighting terrorists is a nasty business. Fighting Islamic terrorism is an even nastier business made even harder by the pro-defence attitudes of the courts. They look like they completely fail to get it that fundamental Islam isn't about compromise, it's about total victory. Fundamental Islam denies human rights to women and homosexuals. It preaches a form of religion that is alien to any civilised society and is lacking compassion. It is prepared to send children as suicide bombers to kill themselves and indiscriminately murder civilians. It lacks any moral basis. Fundamental Islam would kill the judges that regard them as so special. They survive perhaps because of that and maybe that's the reason for there pro defence decisions, which is understandable but is a form of moral cowardice. I used to think the human rights laws were a good thing for us but with all that's been going on it looks like a good idea taken too far. Judges need to restore the balance and import some common sense into their judgments.
Anthony mentioned the case of Ms Livni, it is a sad day when our courts are hijacked for political ends. It's even worse when judges allow themselves to be used in this way. I cannot fathom what was going through the mind of the district judge or magistrate who granted the arrest warrant. Con Coughlin's point in today's Telegraph is quite right when he says that looking at this situation the other way round, we can imagine the anger if Israel issued a warrant against Jack Straw for his role in supporting the Iraq war. I agree that such a rationale would be seriously worrying for him and Tony Blair. Like Benedict Brogan says, we are in danger of forgetting that we are the good guys. That is something that scares me.   Roger 
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You make some powerful points, Roger. I am reminded of what a former Attorney General told me, when I discussed with him some while ago the operation of the then to be introduced Human Rights Act. His view was that the rights of the individual had to be balanced against the rights of society as a whole and that the legislation required a balancing act to be carried out. I wonder what he would make of the present state of affairs and whether he would be as disappointed as many of us at the approach taken by the courts in the types of case under discussion.    Aspals
17 December:   There is an excellent article by Benedict Brogan (he who exposed the MP expenses scandal) in today's Telegraph, headed "Britain's judicial system is being used to help the bad guys". The principle thrust of the article is that our judges are out of touch and they need to remember that we are the good guys, not the terrorists trying to kill us and whom our liberal laws protect — at potential heavy cost to us. Mr Brogan also makes the important point that, in the recent episode of the Binyam Mohamed saga, "the legal and campaigning machine behind the former Guantanamo prisoner has distracted attention away from his questionable activities in Afghanistan by putting the Government in the dock." Intelligence sharing between states is an important convention. Without it we just could not effectively fight terrorism and serious international organised crime. While the Court of Appeal does not regard this as customary law, it looks very much like it to me. After all, what is customary law? The Manual of the Law of Armed Conflict, §1.11a., defines it as "rules developed from the practice of states which are binding on states generally." It is difficult to contemplate that any state providing sensitive intelligence to assist another, would consider it alright for that information to be disclosed to others without their authority. That is a state practice and one, I suggest, which states regard as binding on them generally. It also makes good common sense. But even if, as a matter of law, it is not regarded as a state practice, it is still a convention which should be honoured in order to permit the friendly cooperation of states to continue, thereby ensuring that there is a coordinated international fight against terrorism and international organised crime through the provision of high grade intelligence.

If this convention were breached — whether by deliberate design or by the decisions of the courts — it would not take long before valuable intelligence was no longer forthcoming from our allies. Society would be placed in even graver danger and all because our judges thought it right to protect the rights of a very, very small minority against the greater interests of the rest of society. Let us also not forget that some intelligence is obtained from sources who, if identified, would be placed in immediate mortal danger — and their families, too. In order for the public to have confidence in our legal system, judges must make decisions which are for the greater good of our society and which everyone can readily see are for our protection. At present, that confidence is lacking significantly. Processes which are designed to provide the balance between protecting the interests of a defendant and protecting the sources of intelligence, are being struck down even in circumstances where judges have indicated that, having seen the intelligence they are not saying that the secret evidence was in anyway unreliable, but because of the House of Lords rulings they must accede to the defendant's complaint. See also the report in the Guardian, 3 July 2009.   Anthony (Amended 18 Dec).
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15 December:   Today's news items announcing the closure of RAF Cottesmore and making other defence cuts, at a time when this country is in its third war of this government's term of office, just beggars belief. It as if this government is living in some parallel universe. It certainly has no contact with the realities of life in this world, or the foreign policy problems it has created and then put its servicemen in harm's way to try to solve, while underfunding them and sending them off to fight without the right equipment. Then they impose the present cuts while its forces are actually fighting. Its a bit like dismantling your body guard's house while he is protecting you and then telling him you are doing it to help him. Would any rational person do such a thing? The Iraq Inquiry is exposing just how shallow the political thinking was in the run up to the war with what one might regard as a reckless disregard for the consequences of the government's political decision to go to war. All of this was compounded by totally inadequate funding. Will talks of the responsibility of leadership. I agree. All who were complicit in the decision making process also bear responsibility as co-conspirators - and that includes responsibility for the deaths that followed as a result of deliberate under-funding and refusal to follow the advice of military commanders, who happen to know a thing or two about war fighting, unlike the politicians holding the reigns of power.   
The issuing of the arrest warrant for the former Israeli Foreign Minister, Tzipi Livni, is another amazing blunder. When people like Robert Mugabe travel around freely, to try to arrest Ms Livni is incredible, especially as she probably had immunity anyway for any "offences" she committed when in office (see my comments below for 30 November). One hopes that prosecutorial decisions do not follow a political agenda, but it appears here they were motivated by politics. The issuing magistrate was clearly persuaded there was a case. All the same, if the courts are prepared to issue an arrest warrant for Ms Livni, then contrary to what I said before, I think that Mr Blair may be in trouble. (Modified 16 December)  Anthony
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15 December:   Pete is right, but that's the price of leadership. A very lonely job and the buck always stops there.   Will
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14 December:  all the rats are fleeing the sinking ship and saying what a nutter blair was but why didnt they say anything at the time about how they were against the war and about how wrong blair was. at least blairs got the guts to stick up for what he did.   pete 
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13 December:  Briony. I understand how you feel, but the annihilation of the Jews commenced after WWII started and was not a reason beforehand to go to war although, I accept there was persecution of Jews from the early 30s onwards. If the mass murder of Jews had taken place before the war started I believe the international community might have felt that there was a right to intervene to prevent Genocide. The UN couldn't have been consulted because it didn't exist until much later. If it had existed nations would have sought a resolution to support their military action.   Scipio 
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12 December:  Tony Blair has shown himself to be a man of principle. Would we have stood by and watched Hitler annihilate the Jews purely because that was an internal matter? I think not. History would have judged us very poorly. The UN Charter cannot be prayed in aid to prevent what is clearly humanitarian assistance to a persecuted people. Saddam Hussein killed many of his own people and ruled with a fist of iron. It was quite right to get rid of him - and the prime minister of Iraq agreed today when he was asked about Mr Blair's remarks.   Briony
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12 December:  Mr Blair's remarks to the media seem to obviate the need for an inquiry. He wanted to get rid of Sadam Hussein to achieve regime change. I have not found any justification under the UN Charter for this new principle of international law.   Scipio 
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12 December:   Blair has a bad case of Foot in Mouth disease.    Tess
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10 December:   I am an academic at the University of Edinburgh conducting some research into the history of legal responses to allegations of torture in the British Army. I have fond your website incredible useful and was hoping that you could give me some further help. The links on your website to the prosecuting and defence opening statements in the Court Martial of Mendoca, Payne et all seems to be broken. Might it be possible to send me the documents? Also, I am trying to get hold of the entire transcript for the case. Could you give me any advice on where to get it from. Many thanks.   Toby
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Toby, glad you find the site useful. To reply to your questions, the links to the transcripts sadly no longer work as they linked to the Army Prosecuting website. The APA no longer exists as it has been superseded by the Service Prosecuting Authority. Unlike the APA, the latter organisation does not have a web site. So all links that were previously listed on the APA site have gone. I do have copies of some of the proceedings but, sadly, not all. I will send you what I have, as soon as I locate them. For a copy of the entire transcript, you might wish to contact the office of the Military Court Administration Officer and/or Wordwave who were the official transcribers, as I understand it. Being a commercial organisation, Wordwave will charge for the material they provide, but I am unaware of their fees. As the trial lasted about 6 months, this could be substantial! When your research is complete, and subject to what your publishers say, perhaps you might let us have the details so that we can link to it. It sounds a very interesting area of research. It is quite fascinating that even though the case raises serious command responsibility issues under the Yamashita principles and the ICC provisions, there has been absolutely no comment on it whatsoever within the international legal community. So I will look forward greatly to what you write.    Aspals
10 December:   Re Pegasus. Just think what more we might have found out if the general had been cross examined by senior counsel.   Tess
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9 December:   Well, it looks like Lt Gen Viggers needed no clever barrister to cross-examine damning information out of him. He let loose with both barrels. The integrity of military officers shines like a beacon through the fog of government spin in this sordid affair. The failures of this mob that took us to war, clueless in military strategy and naive to the extent of gross negligence in their budgetary allocations for equipment acquisition, preparation and planning, are being exposed by the ones who are constitutionally bound to carry out their lunatic foreign policy. Yet not a single member of government has served a day in the service of the country they were elected to lead.    Pegasus
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9 December:  On Monday I was at the inquiry into Mousa's death and it was obvious that skillful questioning by able barristers makes a lot of difference. What I did find interesting too was that the press reports about the evidence of witnesses I saw made no reference to their demeanour and whether they were credible or not.   Scipio 
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The above posting is after agreed editing with Scipio to remove specific comment. I suppose demeanour is a subjective assessment and is one for those involved in the Musa Inquiry to evaluate, especially for the chairman, Lord Justice Gage. Nolle prosequi have been given to all witnesses, "in the interests of obtaining from witnesses the fullest cooperation and frankest account of the events which had occurred". Evidence is given on oath. That Inquiry means business. Even though there is no prospect of prosecution for past wrong-doing, anyone who lies to the Inquiry is liable to prosecution. Consequently, comment on a witness's demeanour would be inappropriate. With the Inquiry into the war, there are no equivalent undertakings, nor is evidence on oath, nor are witnesses liable to cross-examination, which shows its proceedings are not intended to pose any danger to its "witnesses". I see no problem with the press commenting freely in these circumstances. It is easier, also, for each of us to assess each witness, as the evidence is televised and it is not a judicial inquiry that will apportion blame. The press is freer to comment in these circumstances. Here is the BBC link to Monday's proceedings, as reported by them.    Aspals
9 December:   It appears from the article in today's Guardian that our concerns over the effectiveness of the Chilcott Inquiry, also shared by others, are well founded. As the former head of MI6, Sir John Scarlett would have been able to reveal much about the real intelligence available and the actual threat apparent in the days prior to the invasion. Of course, the reality was that, as soon as US and UK deployed forces to the Middle East, there was no going back as to do so would have handed a PR victory to Saddam Hussein and a very public humiliation to US and UK which would have not gone unnoticed in the Middle East/Arab nations where, unlike in this country, "losing face" is an ignominy. In any event, it would have been nice to learn (insofar as national security allowed) more about the provenance of intelligence upon which decisions to go to war were made. We have lost a significant opportunity to do that and also lost important material for the Inquiry to put to those ministers and government officials then in power who are yet to give evidence. Had there been a Counsel to the Inquiry, (s)he would have had many questions for Sir John, without doubt.    Anthony
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6 December:  so he gets away with it. the inquiry does look a bit pointless then.   pete 
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3 December:   I vote we don't prosecute and leave the matter to the ICC prosecutor decide.   Will
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5 December:   They wont prosecute Blair because he's a member of the Euro Club. They might also have ot look at other European leaders that went along with the decision and or provided supplies. I think they are very selective in their choice of defendant.   Rob
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3 December:   I vote we don't prosecute and leave the matter to the ICC prosecutor decide.   Will
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3 December:  i vote we prosecute.    pete 
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3 December: So if this inquiry is not a proper investigation and if there are not to be people blamed or prosecuted, then I don't understand your ban Aspals on discussing it.    Thinners 
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Some ban, Thinners!    Aspals
2 December:   I think even the ICC might not fall for that one, Will. Prosecution by the services is no more worthy of being described as an "investigation" than the present Iraq Inquiry. Aspals should start a new poll taking votes on whether Blair should be prosecuted or not by the ICC.   Tess
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A poll is an interesting thought, Tess, but judging by the present mood, an unnecessary step! In any event, should we not wait until we have heard the evidence, such as it is, from the Inquiry. There seems to be no shortage of high ranking officials more than ready to spill the beans. Of course, what cross-examination by a skilled advocate would have done is elicit whether a witness account is motivated by self interest, that is, to minimise their own involvement and thereby exculpate themselves.    Aspals
2 December:   If he wants to get away with a prosecution by the ICC, let's prosecute him by court martial. Judging by past form he's bound to get acquitted. That will stop the ICC from prosecuting him.   Will
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2 December:  blair should be investigated and put on trial. hes got a lot to answer for. the more you read about what went on the more you see he had no proper reason for war apart from wanting to support the yanks.    pete 
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2 December:   If the Inquiry isnt an investigation for the purposes of the applicable law, and I agree with that, then it looks like Tony Bliar is at risk of the ICC exercising jurisdiction, or is that only done in relation to unfashionable states or heads of state that are less flashy than others?    Polly
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2 December:   I do not believe the Inquiry is sufficient to qualify as the sort of investigation required under the ICC statute. Investigation, as it relates to criminal offences, must be given its usual meaning which, in my view, requires it to be undertaken by the state organisation that effectively investigates crime, ie the police/judicial authorities who have an understanding of the applicable law. The Iraq Inquiry is not about apportioning blame. Its "investigation" isn't undertaken by the police, nor are any of its members holders of judicial office and, as we saw yesterday, the questioning of vital witnesses able to give crucial evidence of the thoughts and intentions of the then PM and his close team of advisers, is rather inept (see the Guardian report on the observation of Philippe Sands, professor of international law at University College London, who was "... pretty shocked by the questioning," Sands said. "I was very surprised and disappointed by the failure to press Manning on any issues").    Anthony
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1 December:   Anthony, the Iraq inquiry will fudge the matter and avoid blaming Blair for taking us into an illegal war. Blair then will get round being prosecuted by arguing the inquiry was an investigation which found insufficient evidence against him and so there will be an investigation to overcome the jurisdiction of the ICC. That's what I think will happen.    Tuppy
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1 December:  From what Anthony says, I think that the Iraq Inquiry will serve a useful purpose and will throw a lot of light on the involvement of members of government past and present and their advisers. There may then be enough evidence for the CPS to decide whether to prosecute Mr Blair or anyone else for that matter, for going to war.    Briony
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30 November:  An interesting article by Sir Michael, venting some disquiet. As Roger pointed out only recently, the only authority for going to war is to be found in Chapter VII of the UN Charter. The right to self defence under article 51 is one such authority. The other is under article 42, where there is a threat to international peace and security, when the UN may authorise states, to "take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security." Such action will follow on from a UN mandate providing the requisite authority. There is no other authority for going to war or violating the sovereignty of another state.
Sir Michael mentions proportionality ("its actions are proportional to the threat"), but this is only relevant to the extent of force used in prosecuting warfare. It is not a justification for war.
Turning to the International Criminal Court, the Court cannot exercise jurisdiction, under the principle of complementarity, and will declare a case is inadmissible under article 17 where,
  1. The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
  2. The case has been investigated by a State which has jurisdiction over it
  3. The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;
  4. The case is not of sufficient gravity to justify further action by the Court.
This throws the onus onto the member state (ie UK). For, any unwillingness or failure to undertake a proper investigation into any allegation of war crimes will leave open the risk of the ICC prosecutor seeking to bring a case, as is his right under article 15, proprio motu, "on the basis of information on crimes within the jurisdiction of the Court". Among such crimes are war crimes and crimes against humanity. These are offences also under our domestic law. See the International Criminal Court Act 2001.
Many may recall Mr Blair's eagerness to put General Pinochet on trial, in what some regarded as a violation of sovereign immunity attaching to a head of state under the State Immunity Act 1978. It was argued that this exemption did not apply as he was a former head of state and putting him on trial was the exercise of "universal jurisdiction" under the jus cogens in respect of grave international crimes that fell outside the accepted boundaries of immunity of heads of state. (After all, we would have prosecuted Hitler if he had been captured by the wartime allies). Other states agreed with this rationale, Spain being one from what I can remember. The US did not share this view and the risk posed to heads of state by the ICC may be one reason why it has not been willing to sign up to the ICC, although President Obama is reckoned to be thinking of doing so (perhaps with significant derogations).
There is quite authoritative caselaw supporting state immunity, where a state (Belgium) sought to justify its actions on the basis of universal jurisdiction. The Pinochet case was one of those considered. On 14th February 2002 the International Court of Justice ruled in the case of Democratic Republic of the Congo v. Belgium (see also the Press Release) that there was immunity from criminal jurisdiction for acts committed either before or while a government official holds office, even though he ceased to hold office after the date of institution of proceedings. Despite the change in professional situation of the official (Mr. Yerodia), the character of the dispute submitted to the Court had not changed: the dispute still concerned the lawfulness of the arrest warrant issued on 11 April 2000 against a person who was at the time Minister for Foreign Affairs of the Congo. Moreover, the court held where allegations are made that such an individual is suspected of having committed war crimes or crimes against humanity, it was unable to deduce from state practice any existence under customary international law, in regard to national courts, of any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers for Foreign Affairs. However, the court went on to say, "jurisdiction does not imply absence of immunity, while absence of immunity does not imply jurisdiction..." as "various international conventions on the prevention and punishment of certain serious crimes impose on States obligations of prosecution or extradition, thereby requiring them to extend their criminal jurisdiction, such extension of jurisdiction in no way affects immunities under customary international law, including those of Ministers for Foreign Affairs." One such "international convention" is, of course, the Rome Statute.
Undoubtedly, much will depend on the willingness of the international community to see Mr Blair before the Hague Court. There appears an inconsistent track record in pursuing heads of state. After all, Idi Amin never received the Pinochet treatment, and nor has Robert Mugabe (although he arguably still benefits from State immunity). Are they any better than Milosevic or Karadzic, or Mladic?
One thing is for certain, there seem many who would like to see Mr Blair stand trial. Without any proper investigation of his conduct in this country, the jurisdiction of the ICC prosecutor might be invoked. But all this begs the question of whether the decision to go to war did in fact breach international law. For as long as there remains a divided legal opinion in the matter, it is doubtful that a criminal case could be made out. We shall have to await the outcome of the Iraq Inquiry to have a better understanding of the reasons for war. If they were based upon the UN Charter (or the enforcement of UN obligations imposed upon Iraq by the Security Council after the first Gulf War, for which a UNSCR would probably have been required, anyway) then Mr Blair should have no cause to be worried.   Anthony
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30 November:   Aspals missed the article in the Sunday Hate (Mail) by Sir Michael Rose in which he called Tony Balir a war criminal and suugested that he should stand trial at the Hague. The link is http://www.dailymail.co.uk/debate/article-1231540/Why-I-believe-Blair-stand-trial--face-charges-war-crimes.html#ixzz0Y9Nv4iMq
He says that "according to accepted international law of war, no country should go to war unless it is the action of last resort; its actions are proportional to the threat; and unless the end result is justified by the means used - in other words, that the situation in the country after the invasion will be an improvement, in human and security terms, on the original state of affairs." Sounds good enough for me.   Rob
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28 November:   Never a truer word, Pete.   Will
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28 November:  I am not connected to anyone involved with the inquiry. To come back to the main point, the evidence given so far shows that there are key individuals ready and willing to give a full account of what the thinking and advice were at the time, and all this is without the need for senior counsel cross examining them.    Briony
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27 November:  young men lost there lives for nothing the place is worse now than under Saddam.there families deserve answers.    pete 
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27 November:   Can I ask Briony if she's connected to any of the people she so gallantly tries to defend?    Will
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27 November: To reply to Briony, I think you are missing the point actually. Why shouldn't the PM and his predecessor be subjected to skilfull crossexamination of the reasons why they took us to war, what evidence it was based on and whether they lied to the country about it? The families of servicemen who lost their lives and those who were injured deserve to know just why it was that they paid the price they did. Hostile questioning is exactly what is needed. It's called democratic acountability.    Thinners 
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26 November:  I'm sorry to say it but I think you are missing the point about the Chilcot Inquiry. Its aim is to find out the reasons why we went to war and the political thinking and impetus that took us there. Surely it is better that we know than be kept in the dark and left to speculate. The government is to be supported for the decision to hold an inquiry, even in the form it is. It wouldn't be right for the former prime minister, the serving prime minister, senior ministers past and present and senior legal and political advisers to be faced with hostile questioning from highly paid lawyers about their role in the key decisions or the advice they gave.    Briony
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25 November:  its a shame that the money being wasted on all these inquiries isnt being spent on the troops who need it.   pete 
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25 November: I suppose that when you get senior judges saying that analysing the war's legality was beyond the panel's competence as it doesn't include a single judge or lawyer, and that members are not experienced at cross-examination because it is simply not their skill set, we know that something is rotten in the state of Denmark. The whole thing is a farce.    Thinners 
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24 November: So there really is no point to this thing then? Didn't think so myself. I hoped we'd see some smart barrister cross examine the likes of Tony Blair and put him on the spot, along with Gordon Brown who was the Chancellor at the time and would have been involved in all of the decisions.    Thinners 
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24 November:  lying dont matter, theyre getting imunity from prosecution anyway.   pete 
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24 November:   Bang on Tess. The other strange thing is that the witnesses wont have to give evidence on oath - so they can't be prosecuted for lying about the lies they told. What's the point of holding the "inquiry".    Will
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23 November:   I hope this comment dosesn't fall foul of Aspals' ban. Does anybody else find Chilcott's remarks as amusing as me, that his Inquiry will not be a white wash and he doesn't need barristers to help with the Iraq inquiry, because it isn't a trial, even though they will be looking at the very sensitive reason of why we went to war and calling some pretty high profile politicians including, perhaps, Tony Blair? The Mousa inquiry, looking into the activities of soldiers who abused detainees, is not supposed to be a trial either, and has a narrower remit but it does have barristers galore and even a barrister to present the facts. Surely an independent inquiry that is going to present facts impartially should have a lawyer to help them do it, otherwise they end up looking as if they've already made their minds up because they pick and choose who gives evidence and what is presented.    Tess
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I think that is OK, Tess. You make an interesting point.   Aspals
23 November: I was. Theres more to come because there is another inquiry starting tomorrow into political handling of the war.    Thinners 
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Just as the Sounding Board got started again I really do not wish to put a damper on this discussion, but as the inquiry is to start tomorrow I would rather we did not refer to matters that might be considered to prejudice or influence its outcome. Discussion of general legal principles is fine, but can we please avoid direct reference to specific events or individuals. Sorry.    Aspals
22 November:   The only authority for going to war is to be found in the UN Charter: self defence or Security Council authorised action under Chapter 7. In the case of Iraq there were obligations that it was bound by from the first war and which it failed to comply with, so it is arguable that continued breaches would give a reason to take action to ensure compliance. Whether that justified an out and out invasion incorporating regime change though is debatable. I don't think the UN resolutions went that far.   Roger
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22 November:   The incident Tuppy is talking about at the start of the war is the Gleiwitz incident when some Germans dressed up as Polish soldiers and attacked a German radio station. They sent out some anti-German messages in Polish. SOme people say there were bodies left of men in German uniforms who the "Poles" were supposed to have killed and that these men were in fact prisoners from Concentration Camps.    MilLaw
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22 November:   Blimey Polly, thats the 64000 dollar question. Its' not a crime to go to war when you've got a good reason like defending yourself. but i dont think iraq attacked us or anything, so its difficult to see the justification. so i think that declaring war without a reason is a crime and i dont think the sexed up war dossier that Dr kelly prepared was anything like a good reason. It was a bit like what the Germans did to start the first world war when they faked the incident on the polish border to provide the justification for invading poland. A faked justification is no justificaiton in my opinion.    Tuppy
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22 November:   The Independent on Sunday aks whether Tony Blair should be regarded as a war criminal. I'm not sure if opposition to a war by other members of government or even the general public is enough to make him a war criminal. Is it a crime to go to war?    Polly
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22 November: Yet another inquiry and still more money for the lawyers. I'm not sure how you torture people when you're fighting a battle when some of it is hand to hand. I don't think the payment of £3 million quid compensation to the Mousa family would have had any influence on the latest lot suing. Not much anyway.   Thinners 
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You haven't said so, but I take it you are referring to the article on today's newspage about the Danny Boy incident.    Aspals
17 November:  (sent 16th Nov)  dont hold your breath will.   pete 
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10 November:   The report on today's newspage about the threats to judges in Ireland reminded me of something I wrote on the Sounding Board earlier this year that if terrorists targeted our judges they might have a different view about dealing with terrorist suspects on trial in front of them. Anthony made the point that judges in Northern Ireland in the 70s and 80s were murdered, along with their families, by terrorists. The IRA are up to their old tricks again. I bet the judges in Ireland wont be as sympathetic to terrorism as some of our senior judges.    Will
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24 October:   I understand the reason for not having recent court martial appeal cases, but what about the first instance trial reports? Is there any legal provision preventing reporting them? Open justice should apply to court martial, shouldn't it?    Will
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You are right Will that court martial cases should be reported. Unfortunately they remain a closed book save where newspapers get involved and report the proceedings. However, there is nothing to prevent advocates from reporting cases in which they appeared. This used to happen and we hope that any advocates who are reading this will feel encouraged to let us have first instance case reports.    Aspals
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20 October:   I wonder if anyone can help. I am researching sentencing decisions of courts martial and found the cases referred to on Aspals, but they are quite old. Can anyone point me to a more up to date source or provide me with electronic copies. Many thanks.    Dorothy
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Our sources have dried up, Dorothy. To purchase these titles costs about £40 each, which is well beyond the means of the Aspals site, as we rely on donations from our supporters to meet our running costs. If anyone has copies of sentencing (or other) decisions, perhaps they would send them to us so that we might post them on the site for others to view and download. Thanks.    Aspals
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19 October:   The difficulty with Millaw's point of view is that very few people these days trust the court martial to be impartial most of all when trying soldiers accused of crimes against Iraqis of Afghans. Just look at the record of convictions of people accused of killing Iraqis.    Tess
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13 October:   There is no real alternative to trial by court-martial when one thinks about the need for courts to understand the society from which an accused comes. How can a civilian jury be qualified to do that? What understanding will they have of the pressures of soldiering?    MilLaw
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11 October:   The evidence I rely on for a lack of public confidence comes from confessions from insiders, like the remarks made tonight, if you listened to the radio tonight with the interview of the anonymous RMP investigator, and to concerns expressed by the former Attorney General about the way cases were investigated and handled, about chain of command conduct (even you were threatened) and the general dissatisfaction of people commenting on the Aspals site and elsewhere about the state of military "justice". The person named John was very unimpressed by RMP performance and if what he says is only half true, serious matters were not investigated in some cases because the chain of command stopped them. That is criminal in itself and should be investigated. He said that the RMP was structurally flawed from the outset because they were part of the army with soldiers investigating soldiers, so there was no independence from the chain of command. He was very convincing when he said that senior military figures could be obstructive by denying the use of helicopters to investigators trying to get into an operational area. Like Aspals said, these decisions should be for the police not for the chain of command. It was quite eerie when he mentioned the personnel reporting system as a means of ensuring compliance by blighting the career of anyone who didn't toe the army line and so would have promotion blocked and how this how been used to punish some investigators with integrity who had pressed on to investigate. According to John there were hundreds of cases of death or serious injury to Iraqis where senior officers decided RMP investigation was not required. He also made the point that compared to Iraq there has been little info about troop behaviour in Afghanistan which indicates that there are things being covered up and that we can have no confidence in RMP investigations of alleged misconduct by British troops. He said that even our allies think we have covered up torture and murder. Yet compared with the Americans they have successfully tried soldiers and officers. Is that enough evidence for you?    Tess
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You should know that I did not succumb to threats from anyone. They only ever emanated from elements of the army that never understood the reforms to the disciplinary system brought about by legislation and ECtHR decisions from about 1995 onwards. But you would be surprised by who else did not understand what "independence" meant - but please do not ask for clarification of that statement, because I am afraid none will be forthcoming for the time being. As for matters being quiet in Afghanistan, the explanation may also be due to the fact that lessons have been learned from earlier experiences.
For your reference, The HM Inspectorate Report into the Royal Military Police Special Investigation Branch is available on line    Aspals
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11 October:   You dont' convict your mates, Will, do you. Torture Iraqis, beat them up, kill them and you can get off by court martial. Command responsibility will never wash before a court martial.    Tuppy
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11 October:   The problem with Aspals idea of prosecuting army officers interfering with investigations is that they would be tried by court martial by fellow officers. You can guess what the result would be. You can't have the system trying itself. I should also say that the praiseworthy idea Aspals has of remaining aloof from attempts by senior officers to interfere in investigations is one that probably has career consequences for the person bold enough to argue the toss. I don't think any of the services is well known for acceptance of free thinkers.    Will
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11 October: yes anthony you are spot on about the goverment. the trouble is the tories arent any better.    pete 
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I agree that the Tories do not have clean hands in these matters. Along with others, I recall it was a Tory government that instigated "Drawdown" in the early 90s as part of the so-called peace dividend for the ending of the cold war.    Aspals
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11 October:   Thanks for the interesting stats, Aspals. Am I the only one who's noticed that there were only 165 contested cases throughout the whole of 2008? Presumably some of these would be AWOL. Hardly a caseload justifying a separate system. On a similar note, the BBC item in today's news shows that even RMP investigators were concerned about the ability of RMP to deal with the pressures of their own investigations and mentioning that allegations of torture and murder were being "covered up". How much more criticism must it take before the MOD finally admits that the military system stinks and that the public has no confidence in it. If it wants to hang on to some form of discipline system then it could hang on to the minor cases and needs to hand over the serious stuff to an independent police body for investigation and the CPS for decision making, with trials in the civilian courts. When a former senior RMP officer says the "organisation wasn't seeking out the truth" and that "hundreds of suspicious incidents of alleged misconduct had not been properly investigated or simply ignored", then it is time to sit up and take note and do something about it. It can't go on.    Tess
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Tess, as I said before, the RMP do need more resources and, to directly address one of your criticisms, do need to have their investigators separated from the chain of command. These issues seem "no brainers" to me and, it would appear, to you too! I believe that if these two problems could be constructively addressed, then the perceptions of cover ups and allegations of failures to investigate properly would fall away. I am aware of pressures from the chain of command which had the potential to hamper investigations. Independent investigators would make it more likely that individuals interfering with the progress of an investigation were warned about their conduct and, in appropriate cases, investigated for obstruction or, in more serious cases, perverting the course of justice. A few prosecutions for those offences might then serve to get the message home that administration of justice is not a tool in the hands of military commanders. Investigations must be carried out properly and professionally. The squaddie is suspicious of the RMP, who they do not regard as being proper soldiers. So, there is a problem that some RMP members, especially those serving in operational theatres, "go native" with the chain of command in a rather naive attempt to win acceptance as being part of the military. It is an insecurity that can lead to allegations of collusion/empathy and needs to be addressed if found to be the case. Creating an independent military investigations branch to investigate serious crime would give an incentive to uniformed military investigators to join an elite investigation force that was able to exercise proper police powers without fear of obstruction. Placing investigators (especially SIB) outside the chain, the loyalty would be then to the branch rather than any need to conform and fit in with the wishes of the wider army. When it existed, the APA was disliked by some elements of the chain of command because it would not do its bidding. By way of example, when I was serving at the APA, because I had to make a number of unpalatable decisions, I was once menacingly told by a senior officer that I should remember I was still an army officer. The implication being that my independent stance would impact upon my career (a clear breach of what was said in the Morris case). That sort of attitude also found favour with some elements in the JAG department. It is only by remaining aloof from such attempts at blatant interference that an organisation - or an individual - can stand any chance of maintaining professional integrity.    Aspals
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7 October:   I don't believe that the ECHR really knows the ins and outs of a court martial. While I do accept that there is an argument for saying it should be able to try some more minor offences when there is no chance of getting soldiers back to UK in time for a trial here or where there are serious local witness difficulties, the civil courts are more than well equipped to deal with the case load of the courts-martial - does anyone have facts and figures? The SPA is very secretive about it. As with other cases involving foreign witnesses, evidence can be given by live link. I think public confidence is lacking in the military system.    Tess
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Tess, what is your evidence to support you in your belief that public confidence is lacking in the military system? As for facts and figures, from information helpfully provided to me by the DSPA, for 2008,
Courts-Martial Cases 2008
Service
All Cases
Guilty Pleas
Contested
Of which AWOL
Army
697
598
99
345  (8 Desertion)
RAF
75
56
19
18    (0 Desertion)
Navy
73
26
47
16    (0 Desertion)
   Aspals
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7 October:   I think your accusation of gross negligence is very appropriate, Anthony. That is exactly what the goverment is guilty of, among other things.    Will
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7 October:  Lie after lie after lie. That is the legacy of this government. They spin the truth at the speed of a whirling dervish, but with less poise, and that is why they keep toppling over. The revelations by General Dannatt will come as a surprise to no one, I suppose. It is morally indefensible for a government to make the political decision to go to war and then to fail to provide the requisite troops and equipment which their military experts tell them are needed. In any other walk of life, that sort of approach would be regarded as gross negligence. While they were denying cash and equipment to our troops they were spending over £120 billion on social services and handouts to those who refuse to work.
What is especially unforgiveable is the fact that the politicians and civil servants making these decisions have little military experience, if any at all, to properly understand the situation facing our servicemen in theatre. It is a monumental display of arrogance and utter disdain for our troops whom they direct to do their political dirty work, while all the time looking to catch the right sound bite. Our servicemen saw through the facade some time ago. They are sick of it and it is damaging to morale. Brown and his government should go and go quickly. They have played a cruel and cynical game with the lives of our servicemen all in the furtherance of their own morally bankrupt political agenda and should never be forgiven for it.   Anthony
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7 October:   The decision in Al-Sweady which you recently put on your web cases makes rather worrying reading. It makes me wonder whether the time is up on the military police investigating serious cases. The court made a few serious criticisms of the military police in particular concerning disclosure. In my own time in the army it was clear that on ops the RMPs got very close to the chain of command. It just seems a bit cosy that they can investigate incidents concerning soldiers when, because they are so close to the chain of command, they can't be viewed as impartial. A bit like the court-martial system really, which is a complete anachronism.    Tess
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Tess, you are of course right that the case raised serious criticisms of the RMP, but I think we should be wary of throwing the baby out with the bath water. To deal with the point about RMP being close to the chain of command, I think you make a good point. It should definitely be the case that those involved in investigating crime should be outside the chain of command, like the prosecutors have been for some years. But there still remain some difficult problems. The first relates to the ability of commanders to hamper (hopefully not deliberately) a timely investigation, especially on ops. As they control the ground, they decide who gains access to it. As anyone knows who has been involved in criminal investigations, speedy access to a crime scene is vital, in order to preserve evidence. Sometimes, for good reason, this may not be possible (eg a battle going on or the area being covered by sniper fire, or unexploded IEDs etc). However, the question remains whether it should be the commander who takes the decision to prevent access or the investigating policemen who decides whether it is too dangerous. Personally, I prefer the latter approach, as it places all the relevant decisions in the hands of the investigator.
In my experience, the military police are a dedicated organisation keen to do the job properly. The SIB have some excellent investigators in their number and it has been a privilege to work with them. One of the problems that I am aware of from my time in the Army is not the quality of investigator, or the level of determination, but the numbers available to undertake a huge amount of work. At one stage I was dealing with several high profile cases involving either death or serious injury, yet I was meeting the same groups of investigators dealing with them. In a civilian context this would not have happened. A separate serious crime team would have handled handle each of those cases. But they have more resources than the military.
Which now brings me to my final point. Even if policing in operational theatres is handed over to civilians (eg the Met), there is no guarantee that they will face any easier task. In fact, it may be even more difficult for them due to their ignorance of the way the military operates. A lack of relevant military experience may also lead to the making of decisions on false premises. I also doubt that the chain of command will be any more amenable to having even civilian police investigating their soldiers on ops.
So, in short, I think the military investigators should be independent of the chain of command and should investigate offences without any interference and there should be more SIB policemen.
As for the court-martial system, I should remind everyone that it had been cleared by the European Court in the case of Morris-v-UK    Aspals
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2 October:   After government denials that there were any shortages of equipment, the Telegraph carried an article today headed "Bob Ainsworth warns shortage of equipment to limit troop numbers in Afghanistan". Brilliant proof that this government can't remember the lies its told because it told so many.    Will
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2 October:   Thanks for your help.    Connie
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30 September:   I thought that dismissal was just an option. Didn't the army keep on some soldiers who had been convicted of shooting and killling civvies in Northern Ireland?    Tess
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You are right that the army did take back into service Private Thain and Cpl Clegg. You may recall that Thain was charged with the murder of Thomas 'Kidso' Reilly, a man aged 22, on Springfield Road on August 9, 1983. Thain was convicted the following year and sentenced to life in prison. However, only two years later he was released from prison and went back into the army. In relation to Clegg, on 30 September 1990, he was a private on duty with his fellow soldiers manning the checkpoint on the Upper Glen Road. They fired nineteen bullets into a stolen Vauxhall Astra that passed through their checkpoint at speed. Clegg fired four of the bullets, the last of which killed 18 year old passenger Karen Reilly. The driver, 17 year old Martin Peake, also died at the scene, and the last passenger, Markiewicz Gorman, escaped with minor injuries. Clegg was convicted of murder in 1993 and sentenced to life imprisonment. In 1995 he was released under licence by then Northern Ireland Secretary Patrick Mayhew. His conviction for murder was eventually quashed in 1998 and a re-trial orderd. At the re-trial in 1999, he was convicted of "attempting to wound" the driver of the car, Martin Peake, who also died in the incident, but that conviction was itself overturned in 2000.
In relation to dismissal from the service, you will see that the wording in Section 71(3) of the Army Act 1955 is mandatory, that is, dismissal from the service will follow on from a sentence of imprisonment, whether or not ordered by the court martial of trial. However, the position is not quite the same when it comes to conviction by civilian court. Section 11(3) of the 1955 Act (3) states "Except in pursuance of the sentence of a court-martial ..., a soldier of the regular forces shall not be discharged unless his discharge has been authorised by order of the competent military authority or by authority direct from Her Majesty; and in any case the discharge of a soldier of the regular forces shall be carried out in accordance with Queen’s Regulations."
Under Queen's Regulations (Army), ยง6.149, "A soldier sentenced by a civil court to imprisonment, whether at home or overseas, remains subject to military law until discharged from the Army under authority of para 9.404" (Misconduct). So, if the army regards the civilian conviction as unfair, eg where the soldier's conviction arose from the carrying out of his duties, there is a discretion under these provisions to retain him in the Service.    Aspals
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27 September:   A friend of mine was convicted at court marshall. If he gets sent away to prison will it mean he's got to be dismissed from the army as well or can he soldier on when he's done his time? Thanks for any help.    Connie
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Connie, Section 71(3) of the Army Act 1955 states: "A person who, otherwise than under section 57(2) [contempt in the face of the court] of this Act, is sentenced by a court-martial to imprisonment shall also be sentenced either to dismissal with disgrace from Her Majesty's service or to dismissal from Her Majesty's service: Provided that, if the court-martial fail to give effect to this subsection, their sentence shall not be invalid, but shall be deemed to include a sentence of dismissal from Her Majesty's service."
From what we can see there does not appear to be any corresponding provision in Section 164 of the 2006 Act (which is soon to come into force).    Aspals
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27 September:   Aspals readers might be interested in a slight crisis that has hit the Australian Court-Martial system recently. In the case of Lane, the Australian High Court declared the new Australian Military Court (AMC), the centrepiece of military justice reforms, to be unconstitutional. Lane, a former sailor, was charged with indecent assault for placing his genitals on a sleeping colleague's forehead - a practice known as "teabagging" - after a drunken night out in 2005. He denied the charge and fought it all the way to the High Court.
Background:  Due to concerns that the Australian military justice system was not striking the right balance between the requirements of the armed forces on the one hand, and the rights of its personnel on the other, it was reformed in 2006. However, in doing so, the Australian government rejected the recommendation of the Senate Foreign Affairs, Defence and Trade References Committee to create the military court under Chapter III. The AMC was created in 2006 by the inclusion of section 114 in Division 3 of Part VII of the Defence Force Discipline Act 1984 (Cth) (the Act). Section 114 states:
"(1) A court, to be known as the Australian Military Court, is created by this Act.
Note 1: The AMC is not a court for the purpose of Ch III of the Constitution.
(1A) The AMC is a court of record."

The effect of section 114 was to discard the court-martial process and to create in its place the AMC which would have the jurisdiction to determine military justice issues. The problem was, however, that the judicial power identified in Chapter III of the Constitution is that of the Commonwealth and the powers to create federal courts are found in sections 71, 72 and 122. It was for that reason, in a unanimous verdict, the High Court held that the provisions of Division 3 of Part VII of the Act were constitutionally invalid. French CJ and Gummow J held that the AMC was intended to be a Court under Chapter III but was not created under Chapter III, and section 51(vi) does not allow for military jurisdiction under a "legislative" court. The Court rejected the Commonwealth's submission that the AMC, as a replacement for the court-martial system, was merely a "modernisation" of terminology and not a matter of substance.
Consequences:  Quite apart from the unusual circumstances of Australia not currently having a military tribunal, there is a clear question over the validity of the decisions made by the AMC since it was convened in October 2007. The Government has enacted legislation to reinstate the pre-2007 machinery as an interim measure while it determines the construction of a military justice system that meets the requirements of the Constitution.
For more information, please see the following links:
  1. Mondaq, Government & Public Sector
  2. Sydney Morning Herald, 28 Aug 2009
  3. Military Justice
   Aspals
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22 September:   Judging by the results that the ICTY produced, if the Payne case had been tried by them the result might have been a lot different.    Will
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21 September:   Rabinder Singh made a good point in his opening adress to the Mousa inquiry today when he said that one of the striking features of the case was that the abuse did not take place in a secret location behind closed doors and that many people must have seen or heard what was going on. It seems an obvious and powerful point but one that the court-martial didn't find persuasive.
Cases like that should be tried by the ICC in future to ensure that justice is seen to be done. It would have been interesting to see what a tribunal like that would have made of the evidence and the various defences put forward. I really hope that the defendants at the trial will be called to give evidence so that their accounts can be tested for the first time by cross-examination.    Tess
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20 September:  I answer David's message. The release of people from custody after a court hearing is called the Rule of Law, in other words accountability for our actions before the courts.    Briony
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