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Question/Comment
22 December: 
The sort of behaviour being discussed is also costing us millions of taxpayer pounds paid out in compensation. What is wrong with the modern soldier?   Briony 
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Unfortunately, there is nothing recent about our penchant for torture. Ian Cobain's book, "Cruel Britannia" highlights our disturbing past and how courts-martial failed to convict the senior figures responsible in military intelligence. There is a useful review of the book by the Rev Nicholas Mercer. The book can be purchased [here].     Aspals 
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21 December: 
I agree that the decision and punishment in the Derek Keilloh case is to be welcomed and that, even if the criminal process failed to deliver justice, the civilian authorities are laying the blame firmly where it belongs, to deny those involved the luxury of saying their behaviour was beyond reproach.
All the same, it is very sad that this process ever had to start. What was it that made that young doctor ignore his professional and ethical responsibilities while he was with the QLR in Basrah, and turn a blind eye to the abuse that was going on? Was he that inexperienced that he really did not know what his ethical and legal duties were? Did a lack of preparation for the deployment exacerbate the situation - or did it make no difference to the specific responsibilities he had, as set down by his own professional body?
Of course, it is always a tricky business to embed anyone in a tight-knit regimental family, whether they be a doctor, journalist, policeman or lawyer. The real danger is that they will identify with the unit concerned and lose their objectivity, wanting to give advice or report on what is happening in a way that is seen as pleasing the unit, so that they do not earn pariah status. Life can be extremely difficult when it happens - this pressure to conform is something that concerns many lawyers when they question the objectivity of RMP living among units where a member is being investigated by them for wrongdoing. It is very difficult to tell a CO that he or his soldiers are getting it wrong. But that is the professional duty which each professional bears. Indeed, it is a duty that all service personnel bear, highlighted by the excellent guidance in Values and Standards. Unfortunately, there is a disconnect between those laudable principles in theory and the application of them in the field and in extreme circumstances. More practical training needs to be undertaken to ensure that soldiers really do understand the moral code of their own Service and the legal obligations that are placed upon them both by domestic and international law. After all, they are no more than traditional standards of decency and integrity. In the case of QLR officers, it is clear that their training was somewhat lacking as well.
As for the CO, his willingness to rely upon assurances by others that tactical questioning had been approved at Brigade, without actually satisfying himself of what it in fact meant, was a curious version of the "superior orders" excuse. An alternative thought might have been, 'the less I know the better'. Or, 'I am too busy to get into the weeds' (if prisoner treatment can be so regarded). Both are wrong as a matter of law, for officers bear a command responsibility towards those in their care. Lord Justice Gage could not have been clearer in his frank assessment of the behaviour of members of that unit. He said in respect of Colonel Mendonca,
"I find that, as commanding officer, he ought to have known what was going on in that building long before Baha Mousa died. I find further that although he knew conditioning was taking place he ought to have found out precisely what conditioning involved and appreciated the dangers of allowing Detainees to be hooded and placed in stress positions, not least because of the intense heat and the rudimentary conditions of the TDF, but also because of the obvious risk that in enforcing stress positions the guards might well resort to violent behavior."
Some soldiers and officers subsequently lied about these tragic events and closed ranks during the court martial to frustrate the process. It is clear from Mackinnon J's ruling at half time that he was concerned about the extent to which this had happened.
That no one actually gave a fig about the detainees is ineffably shameful. We had the clearest legal obligations under IHL, yet there is no evidence that anyone at all had any regard to them and whether the detainees were being treated in accordance with them.
A young father lost his life, two children were orphaned, several Iraqis were severely ill-treated, many careers blighted and a young doctor's career now in tatters. All because they chose not to abide by their moral and legal codes. They hadn't even captured the right people. Those they had were innocent. What still puzzles me is that they turned a blind eye and/or lied about what happened not because it was a trivial offence and they didn't want to see their mates punished for some trifling matter, but in a serious set of allegations concerning the death of one individual and serious assaults on a number of others.
This case - and the others going through the system - seriously damage the reputation of the army. We lecture others about the need to respect IHL and human rights, but these sorts of case do not permit us to take the moral high ground. The men concerned in the death of Baha Mousa and the ill-treatment of the Iraqi detainees will be remembered not as heroes but as villains. They have their places in the history books. As for our national reputation, who knows what damage has been caused.
Anthony   Aspals Consultancy
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21 December: 
Baha Mousa death: Army doctor Derek Keilloh struck off. Another civilian tribunal that delivers a just verdict and sentence. The Panel did not believe Keilloh and said he didn't do enough to protect his patients.    Tess 
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20 December: 
Tess makes a compelling argument. The QLR case is deeply troubling as the court martial verdicts were so at odds with the inquiry's findings. That makes the military system look suspiciously biased. At least the families and victims got some sense of justice from the Gage inquiry, even if the courts were unable to give it to them.    Briony 
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20 December: 
On Tuppy's point, there hasn't been a case of a civilian court prosecuting soldiers. All the trials have been in service courts, I believe. They are the ones that have been doing the acquitting. That is a huge part of my concern at this in-house gentleman's club making a mockery of the very idea of justice.    Tess 
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20 December: 
Re Scipio, did anyone tell the court martial judge?    Will  
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20 December: 
Pongo makes a good point about the adversarial system. It probably explains why civilian courts are just as likely to acquit soldiers as the military.    Tuppy 
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20 December : 
Command responsibility is set out in article 87 of the Additional Protocol 1 to the Geneva Conventions.    Scipio 
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20 December: 
As we are back on the subject of the Mousa case, it is worth pointing out that very few people in the press understand the concept of command responsibility. They accepted much of what Mendonca's wife told them at face value. I saved this link and I think it shows what I'm getting at, http://www.guardian.co.uk/world/2007/jun/01/iraq.military. She shows a complete ignorance of the duties and responsibilities of command. But then again, she is a loyal wife defending her husband. There's something to be said for that.    Will  
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20 December: 
There's an interesting take on the QLR case against the CO by the LibDems at http://www.libdemvoice.org/liam-fox-and-jorge-mendonca-then-and-now-25187.html. Liam Fox had harsh words to say. The disparity between the court' findings and the Inquiry is very worrying and makes you wonder what went on at the trial. If justice is down to how good your brief is, is that justice or is it theatre?   Pongo 
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The Inquiry also vindicated the APA decision to bring Mendonca to trial. It will be recalled at the time that there were allegations that he was being made an example of to satisfy a desire to put an officer on trial. This flowed from what was said by the defence of those tried in the "Camp Breadbasket" case as a tactic to throw blame off their clients. They alleged that no officer was being tried - as if somehow that excused their clients for what they did.     Aspals 
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20 December: 
I want to add my voice to others. I really support the services. My brother has had his fair share of deployments. What we need to be careful about is that we don't see those committing crimes as above the law. The newspapers in particular jump on this bandwagon to show thier support and stir up the readers but I'm not sure how much of it is sincere or just about selling newspapers.    Will  
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Interesting point. We saw the same thing over the 1 QLR case, when the Telegraph and Daily Mail in particular challenged the case being brought against war heroes. As pointed out previously, while the CM may have found no one guilty, the Inquiry report makes a damning criticism of 4 individuals, 3 of whom were tried by CM and acquitted. After the report was published, neither paper said anything about their earlier reporting and the stance they took.     Aspals 
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20 December: 
I am not sure why my last message was edited. Censorship of discussion is not a good thing.    Tess 
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I have explained the detailed reasons to Tess in a private eMail. As a more general explanation, it was out of concern that the GMC is yet to decide on sanction against Dr Keilloh. I just thought as a matter of fairness to him, we should bide our time until then. Once they announce their punishment, more detailed comment will be welcomed.     Aspals 
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19 December: 
I am definitely not speaking about servicemen in the way Pete alleges. My point is a different one entirely and is about the system, not the people. Most people that post on this site know that I am against the service discipline system and want to see it civilianised. My comment about the view taken by the media is that according to them, soldiers can do no wrong.
On the other point about the doctor Kieloh gmc hearing, I am still of the view that he should have been tried with the other members of the unit. It says a lot about the unit and the culture within it when even the doctor is found to be misleading dishonest. [The rest of this comment has been edited].    Tess 
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19 December: 
In reply to Pete, I am not anti serviceman and definitely do not think they are scum. I was referring to the QLR case and the difference in the finding of the court martial and that of the Inquiry. You would have thought that they were two entirely different cases because on the same facts Justice Gage came to a completely different set of conclusions to the trial judge who decided the criminal charges.    Tuppy 
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Lord Justice Gage said, in the Mousa Inquiry report at p22, "I have been very conscious that throughout the whole of the time of this Inquiry a fierce conflict has been conducted in Afghanistan involving soldiers of the British Army and other national forces. Casualties have been heavy. Hardly a week has gone by without some reference in the media to the death or serious injury of members of the Armed Forces. I have also been acutely conscious of the additional pain and stress which this Inquiry has put on members of the Armed Forces and the MoD. I am also conscious that criticisms made by me may seem to some, not only those in the Armed Forces, particularly ungrateful and insensitive. On the other hand, there has been a clear need to expose the wrongs which have been done to the Detainees and their families."     Aspals 
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19 December: 
soldiers do a very dangerous job and risk their lives daily in afghanistan. they are heros no mistake. they deserve some respect. people on this web site talk about them as if they was scum and want to see them put away for any reason.   pete 
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19 December: 
Soldiers are not above the law, but you would think they were reading headlines in the press. They are all heroes.    Tess 
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19 December: 
The findings in the report by judge Gage make it look like he was examining a totally different case to the one the court martial heard. He even specifically fingered 4 of them for criticism for their failures. The doctor did not come out of it well either.    Tuppy 
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19 December: 
He should still have been on trial. I agree that it does look an impossible job to prosecute soldiers for things they've done especially if they've been to Afghanistan at some stage which most have these days. Civilian criminals don't have that excuse.    Will  
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19 December: 
I agree with Briony. The whole trial thing was bizarre and even the Gage report findings were at odds with it.    Tess 
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19 December: 
Our courts, military or civilian, aren't gonna convict our heroes no matter what they do.    Tuppy 
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18 December: 
Why wasn't he prosecuted? Would it have made any difference. Everbody was acquitted so there's no reason to think the outcome would have been any different for him.   Briony 
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18 December: 
The doctor who examined Baha Mousa and found nothing untoward has been found guilty of misconduct by the GMC. I haven't heard what punishment he received. The question I want to ask is why wasn't he prosecuted along with the others.    Tess 
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6 December: 
There was a case some time back when a sailor on board a sub shot or stabbed his superior officer. They must have locked him up somewhere. You can't have a nutter like that wandering around. You wouldn't know who'd be next.    Tuppy 
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You are quite right. The case was that of Able Seaman Donovan who murdered Lt Cdr Ian Molyneux and injured another officer, on board the nuclear submarine HMS Astute. But that incident took place when the sub was in port, I suppose, as there were visiting local dignitaries, including Southampton City Council's mayor, chief executive and leader, who were being given a tour of HMS Astute. See the BBC news report.    Aspals 
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4 December : 
On the submarine thread, the problem on board is that there is really no place to lock people up. But if it is a serious crime the person is dealt with after removal from the ship.    Scipio 
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I asked a friend of mine who is an experienced submariner, about this problem. He told me that, as Scipio says, there is no "brig" (or jail to you and me). Anything disciplinary may be dealt with by minor sanction eg, extra duties to be performed when the ship called in to port. Captain's table might then occur the day before. Serious matters would involve the individual being returned to UK for further action. In the period between commission of a serious offence and docking in a port, an individual might be kept in a form of close arrest and in handcuffs.     Aspals 
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3 December: 
One thing that really is significant about the Danny Nightingale case, now that I've read the trial sentencing transcript, is that the press reports are a distortion of the facts. Just goes to show you really can't believe what you read in the press.    Tuppy 
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2 December: 
Replying to Scipio so if the submarine sailor is doing a critical job he doesn't serve his sentence like he would if were in the Air Force or army?.
On the other thread about the SAS man, I hadn't realised he actually knew about the possession of the gun from before his accident. That must change things musn't it. It was probably why he was advised to plead.   Briony 
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We perhaps ought to leave the discussion at this point, as it is getting onto matters which are to be considered on appeal. The sentence is now dealt with, but the appeal conviction is still large.     Aspals 
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2 December: 
Following on from Aspals one can understand why the appeal court found the Cochrane sentence to be arbitrary. She was a housewife, non-military and had no familiarity with weapons, believing possession of her father's handgun was not criminal. Sgt Nightingale is in a different category altogether. He is a soldier, very familiar with weapons who on his own admission had possessed the pistol for two years prior to incurring the head injury which he later claims caused memory loss. So the question still remains why he did not hand in the weapon before then. I also understand that it is against army regulations to have any weapon in your living quarters. The he held a huge amount of ammunition some of which fitted the weapon. The court was a military court which understood the seriousness of what he did. These courts normally give the soldier the benefit of the doubt which is why I do not think they serve justice and should be abolished, but they were not persuaded by Nightingale's excuses to mitigate the punishment further. He is now appealing his conviction, but he did plead guilty and was represented by experienced counsel. What will the appeal court make of that? Which brings me back to my main theme that the outcry may have been avoided altogether if he had been tried by a civilian court.    Tess 
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2 December: 
locking up a brave guy like danny shows the law is an ass.    pete 
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30 November: 
to answer Tess. There is some flexibility as the 5 year sentence can be reduced where there are exceptional circumstances. The problem is that what might look exceptional to one judge might not to another. Does that explain the differences in the cases mentioned?   Briony 
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Gail Cochrane's sentence was overturned on appeal. The court quashed a sentence of five years imprisonment and substituted an order requiring the appellant to perform 240 hours of community service. The appeal in this instance was primarily concerned with the question whether 'exceptional circumstances' relating to the offence or to the offender existed. Importantly, and echoing the point Briony made, "The sentencing judge's interpretation of 'exceptional' had been too abstract. Exceptionality had to be judged in the context in which the question was being asked, with regard to Parliament's intention and the need to avoid sentences which were arbitrary and disproportionate." But this was done without the brouhaha of the press and a campaign - and no government minister made any high profile appeal to the Lord Advocate to intervene. The appeal quietly ran its course and justice prevailed.     Aspals 
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30 November: 
Referring to Aspals comment, the case of Gail Cochrane is really quite shocking going by what the press report says. It shows that legislation setting inflexible parameters for sentencing can have undesired and unfair consequences. If the purpose of the statutory sentencing regime under the act is to stop criminal elements from possessing firearms then it is a good thing. Unfortunately people like Mrs Cochrane and Mr Nightingale are caught by the same statute. As I understand it, in Mr Nightingale's case the court did find exceptional circumstances justifying a reduction of the 5 year starting point. It is incredible they didn't do the same in Mrs Cochrane's case. But then again each case turns on its own facts.    Tess 
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30 November: 
nightingale case shows the courts screwed up in the other cases. he should never have gone to prison.    pete 
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29 November: 
I take it that Scipio is not a submariner.   Will  
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29 November: 
Wot. Still banged up in the house    pete 
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29 November: 
I agree it is good news about Sgt Nightingale. I wonder how the court squared reducing his sentence and suspening it but the other guy in the house is still bange up inside.    Tuppy 
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I haven't seen a transcript of today's CMAC proceedings, but think you make a good point about the apparent leniency shown. There is an interesting case of a 53 year old lady, Gail Cochrane, who kept a "family heirloom" World War II pistol for 29 years following the death of her father, who had been in the Royal Navy. She had no idea she might have committed an offence. It cut no ice with the High Court in Edinburgh who failed to find exceptional circumstances and imposed the statutory minimum of 5 years imprisonment. She did not possess any ammunition. Unlike Sgt Nightingale, she had no high profile campaign to plead her case, nor MPs to spark a special debate in Parliament, nor any expression of support from the Prime Minister. Neither did Sgt Nightingale's housemate, come to think of it. Parliament makes these laws yet does not like it when they are applied to people they like. The judge advocate at trial, and the attorney general, both honourable men, received vitriolic abuse from the media and public, yet they were applying the law as laid down by Parliament. These inconsistencies are good news for Sgt Nightingale and his family, and one is pleased for them. But would the decision have been the same without all the public and media pressure which was brought to bear by the outcry?     Aspals 
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29 November: 
common sense from the court. greatnews about danny nightingale. someone got sense.    pete 
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29 November  (sent, 28th): 
If his job is critical he still does it. Otherwise he could be locked up all the time.    Scipio 
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26 November: 
If a sailor is locked up for a crime on the submarine who does his job. Man power must be at a premium so every body must be essential. It is quite different to land jobs where someone else can step in.    Tess 
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26 November: 
So the submarine sailor gets dealt with extremely lightly for a serious offence. No justice there for the victim of violent crime. The system must do better than that.   Briony 
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25 November: 
Onboad submarines, it isn't that easy. When you leave port you are effectively away for many weeks, underwater and cut off from the outside world. So it would need to be a really major offence to justify a return to port. For the majority of offences, they need to be dealt with at Captain's table. He has the power to impose up to 3 months detention. His powers of discipline are essential for more than minor discipline offences.    MilLaw 
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24 November: 
Replying to Will's post, serious that is criminal offences would be reported to the on-board police who would investigate. The defendant sailor would be removed from the ship and sent to a unit in UK. Petty disciplinary matters on the other hand could be dealt with by the co in the same way that employers deal with disciplinary matters by their staff.    Tess 
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24 November: 
fire them out the torpedo tube    pete 
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23 November: 
If the summary system is done away with to please Tess how would disciplinary offences on board a ship or submarine be dealt with if the CO couldn't do it?    Will  
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22 November: 
Your website carried an encouraging story today from the Telegraph that at last it dawned on parliament that summary justice is no justice.   Tess 
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21 November: 
The disconnect Aspals refer to shows that trial by court martial does not deliver justice.   Tess 
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21 November: 
Briony is quite right that RMP do not "appear" independent. They are part of the chain of command and their reports go to the commanding officer. The system is rotten to the core.   Tess 
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As has been pointed out on this site, the 1 QLR court martial was a bit like the Old Bailey sitting in Bulford. All counsel, bar one prosecutor, were civilian, the judge was a High Court judge, and the only military participation (apart from one of the prosecutors) was the members of the "jury" and the court usher. Just because people do not like the outcome of the trial does not make the system wrong. The witnesses giving evidence at the Inquiry were told they would not be prosecuted for telling the truth, save where their evidence to the Inquiry was false or distorted or they suppressed evidence, and that this was a means of breaking down the "wall of silence" which existed in the trial. That gave the Inquiry a great advantage over the trial where misguided loyalties resulted in the truth being suppressed, in total violation of Values and Standards and the integrity expected of honourable men, so as not to grass on their friends. That, in itself, spoke volumes about the regiment which produced men capable of committing the terrible acts carried out against Baha Musa and his colleagues. The trial judge was clearly irked by this closing of ranks. The whole business was described by General Sir Mike Jackson as a stain on the character of the British Army. One couldn't have put it better.     Aspals 
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21 November: 
Tess I bet he gets his fair share of furious MPs lobbying on behalf of constituents.    Tuppy 
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21 November: 
I ahve two comments. Referring to the military police, (Ed:I assume this link is OK) isn't the whole point that they are not independent so any investigation they conduct is not an independent investigation. The key is that it does not appear independent. My second point concerns the SAS officer. Hearing MPs jump onto the bandwagon to decry the court martial and the sentence handed down after the officer pleased guilty probably explains why there is so much pressure on court martials to acquit. When they convict heros they get slated. The victims in the QLR case have nothing to cheer about.   Briony 
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There was an interesting and clear disconnect between the findings of the court martial in the QLR case, and the findings of Lord Justice Gage.     Aspals 
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21 November: 
Whatever we may feel about the decision in the Nightingale case the fact remains that there is an appeal and due process must follow. The idea that government can lean on the Attorney General or a prosecutor to fix things so that they go well on appeal is both distasteful and wrong, possibly criminally wrong if it amounts to an attempt to pervert the course of justice. Imagine the chaos if the DPP was petitioned after every conviction that MPs didn't like?    Tess 
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20 November: 
Take alook at this link. Attorney General agrees with Aspals.    Will  
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    Aspals 
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20 November: 
On the subject of Sgt Nightingale, once the court found that there were exceptional circumstances, which it did, they could have mitigated the sentence to whatever they wished, including imposing a suspended sentence.    Scipio 
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The case has been referred to the Attorney General by the SoS for Defence, who is not supposed to interfere in matters which are the province of the independent Service Prosecuting Authority. It is not clear by what authority the SoS seeks to influence the Attorney General in a matter which is the subject of an appeal to the CMAC.     Aspals 
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18 November: 
2. No order for dismissal from the service was made, nor for reduction in rank
Just out of interest - does this mean he will be able to go back to soldering after he has served his sentence, or is it just relevant in terms of his post service benefits?   markp 
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Provided the army does not administratively discharge him, he will be free to go back to soldiering once his sentence is served.     Aspals  
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18 November: 
Thank you for your interesting reply re Sgt Daniel Nightgale. It is poignant which 'bits' the press decide to run with, and how this cab unbalance a story. I suppose it always comes down to what sells newspapers which sadly can only be a reflection of what the masses like to read.    markp 
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18 November: 
I would be interested to hear some pofessional opinions on the case of Sgt Danny Nightingale and his detetntion for possesion of an illegal fiream.
I understand that this is a very serious crime, and should not be trivialised in anyway because his job involved handling firearms but his senetence does seem excessive.
The media in the majority, and his supporters are using his service to his country as a mitigation to reduce his sentence - should that have any bearing?
How does his military sentence compare to a senetnce he would have potentially received as a civilian who had no previous record, and was found in possesion of a firearm in, what I believe, was a locked box in his/her home.
My questions above are based one what I have read in the media, and I therefore realise that the information I have based my questions on may be incorrect or \'embellished\'.    markp 
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You pose some interesting questions. One has to be a little circumspect in the response, bearing mind the pending appeal to the CMAC. However, what is a matter of record is the sentencing remarks of the judge advocate at trial. Sgt Nightingale stood convicted (after pleading guilty) to 2 offences: 1. possession of a prohibited firearm, contrary to s.5 (1)(aba) of the Firearms Act 1968 and 2. Possession Of Ammunition Contrary To Section 1(1)(b) Of The Firearms Act 1968 (348 rounds, of which 50 were armour piercing). The Glock Pistol, was found in the wardrobe, in the top shelf area in a black case that it comes in. As for the ammunition (which included armour piercing rounds), this was found in a plastic box under the bed in his accommodation. It was described as "an administration box which had pens and pencils and all the like in as well as the ammunition". As you rightly say, these are serious offences. Section 51A of the FA imposes a starting point of 5 years imprisonment, unless there are exceptional circumstances which allow the court to mitigate the punishment. The court found there were such exceptional circumstances and mitigated the 5 year sentence to concurrent sentences of detention for 18 months on count 1 and 6 months on count 2. No order for dismissal from the service was made, nor for reduction in rank. This means that his total sentence is 18 months detention which, with remission, means he will serve 9 months. In his sentencing remarks, the learned judge advocate said "Let me say from the outset that it is clear to us that you have rendered very great service over the years both to the army and your country, particularly with regard to your current unit and your operational tours. You have an exemplary character... We accept you have demonstrated genuine remorse and that the offences come about primarily by way of your inaction.... Nevertheless, the court would not be doing its duty in relation to protection of the public at large if it did not bear in mind the potential grave consequences of your behaviour. You must understand that these are extremely serious offences that require a custodial sentence of considerable length. We consider that if you had contested this matter you could likely have received a custodial sentence in excess of 3½ years imprisonment. However, in view of your guilty plea, your exemplary character, the circumstances of the offence and all other matters which we take into account, we consider that we can deal with you more leniently. However, these offences are far too serious for a suspended sentence to be appropriate." It will now remain to be seen whether the CMAC considers the sentence to be manifestly excessive or wrong in principle. One thing is for sure, the description in the press of the way the matter was dealt with in court was an unfair representation of the facts which, I hope, this brief explanation has corrected.     Aspals  
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16 November: 
What is meant by Aspals response to Tess that the investigation into shootings is carried out by the unit? How is that independent at all?    Briony 
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It is not an independent report. However, the policy requires that any shooting involving the death of a civilian must be reported to the military police who then investigate after taking legal advice.   (amended 21 Nov) Aspals  
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15 November: 
civvy coppers plodding through the battle space, do me a favour. who protects them, who provides accommodation, who provides transport. fighting units dont have spare manpower. this is a typical hair brain civvy idea by lawyers whove got no idea what combat is like. dream on.    pete 
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15 November: 
In reply to Aspals, there has to be an investigation when civilians are killed by our troops. Whether it can meet the requirements of article 2, or should meet those requirements, is another matter, but a genuine effort must be made to investigate the circumstances.    Tess 
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There is a requirement for a "Shooting Incident Report" which is prepared by the unit and is scrutinised by the Military Police and a military lawyer. If there is anything in the report that indicates a more intensive investigation is appropriate, then that is put in train by the military police. It is this aspect that may conflict slightly with the requirements of article 2, in that the military police are part of the army and, arguably, not independent of the chain of command. However, this problem is not insurmountable (a similar problem was successfully addressed in relation to the service prosecuting authorities) and in no way reflects adversely upon the professionalism and dedication of the military police investigators who do carry out the investigations in such cases.    Aspals  
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15 November: 
If civilians are kielled during a firefight that our soldiers take part in there should be an investigation to determine that this was not a war crime.    Briony 
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15 November: 
great work for lawyers in a self serving way. sad though that it shows how nobody knows what active service is like. what pressures there are. these people need to get there priorities right and stick up for society in this country.    pete 
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14 November: 
You say "Provided there is no evidence of wrongdoing by our soldiers, it is difficult to see how, in those circumstances, (a) article 2 is applicable". But how can you say there is no evidence if you don't have an investigation which looks to see if there is evidence of wrongdoing? Perhaps we should not need "evidence" to prompt an investigation. If someone has been killed then article 2 is engaged and a proper investigation should follow.    Tess 
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That is the way we may be headed, but I suggest it is completely unfortunate and takes no account of the "heat of battle". If a civilian is killed in a fire-fight between combatants, that is not a deliberate targeting of civilians by our forces. Indeed, there is no way of knowing if our forces were actually responsible for the death. So, unless there is some evidence of eg disproportionate use of force, it should not place a burden on our forces to investigate to article 2 standards. A fortiori where the death may well have been caused by the enemy. Investigations in such cases place a huge burden on a force that is short on essential manpower due to the cuts in manning levels imposed upon it. It also has the potential to deflect valuable resources from the military mission. This is in contrast to the situation where there is some causal link between the death and the apparent wrongful actions of our forces, eg disproportionate force, deliberate targeting of civilians. It seems to me that if Human Rights protections are extended to victims of non-CoE states, then they should be extended to our soldiers, too. There is no derogation in this respect by the government.     Aspals  
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13 November: 
The Al Skeini case went a bit further than Anthony says. It gave protection under the Convention to civilians killed in the fighting. The House of Lords decision initially denied that extension of jurisdiction, but the European Court said they were wrong and article 2 did apply to them. They extended the application of article 1 on the basis that our forces had assumed authority for the maintenance of security in South East Iraq from 1 May 2003 to 28 June 2004 the period during which the victims were killed. Therefore we had a duty to properly investigate where civilians were killed during security operations carried out by UK soldiers in Basra.    MilLaw 
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Of course, you are right about Al Skeini. The interesting point is whether the same protections are applicable in Afghanistan, where we operate under the auspices of the Host Nation and a UN mandate. I accept that any person physically detained by our forces is (on the strength of Al Saadoon and Al Skeini.) within our jurisdiction, on the exceptional basis set out in those decisions, but do those protections attach to any civilians killed during our military operations, bearing in mind there is a war going on out there? Is it truly feasible in those circumstances to expect article 2 investigations into the death of every civilian killed in combat? Personally, irrespective of any legal requirement, I just cannot see how one could achieve it. First, there would need to be an incredibly large military police presence there to do it, but there would need to be access to witnesses. This latter requirement would be the most difficult to achieve, bearing in mind that fighting is taking place and that witnesses might have fled, or be inaccessible due to ongoing fighting. I am not suggesting that no investigation would be possible. Merely one that satisfies article 2 standards. After all, article 2 imposes a positive duty on the State to protect life with a corresponding procedural obligation to investigate deprivation of life and to bring to account any state agent responsible. Of course, while we have referred to obligations under the ECHR, one must also recall the customary international law obligations in article 75 to Additional Protocol I to the Geneva Conventions, which contains a series of fundamental guarantees and protections corresponding to those under human rights law. Moreover, in the preamble to APII it is said that "international instruments relating to human rights offer a basic protection to the human person". Article 2 of the International Covenant on Civil and Political Rights (ICCPR) obliges each State party to respect and to ensure human rights, which the Human Rights Committee has interpreted to mean that "a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State, even if not situated within the territory of the State party." The issue is "effective control". Which is where the decision in Issa is of interest. The duty to investigate and prosecute does exist in international humanitarian law. Article 49 of GC 1, Article 50 of the GC2, Article 129 of the GC3, and Article 146 of the GC4 all require that there is an effective investigation into grave breaches of the Conventions, stating that "Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts." [Extracted from Open Justice paper].
While these very high standards may well impact upon our ability to fight effectively, our enemies tend to be unencumbered by them and free to kill and maim at will. I am not saying we do not respect IHL and IHR, merely that the requirements should be interpreted with a little more common sense and an understanding of the challenges faced by modern forces operating in new environments which vacillate between being benign neighbourhoods one moment and battlefields the next. That civilians are killed in combat exchanges between rival forces is a tragedy of war. Provided there is no evidence of wrongdoing by our soldiers, it is difficult to see how, in those circumstances, (a) article 2 is applicable or, even in the circumstance of "effective control", (b) an effective investigation can always be undertaken.
To answer the question I posed at the beginning of this response, it would appear that, applying Bankovic, the Convention does apply in Afghanistan, as "the case-law of the Court demonstrates that its recognition of the exercise of extra-territorial jurisdiction by a Contracting State is exceptional: it has done so when the respondent State, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the Government of that territory, exercises all or some of the public powers normally to be exercised by that Government." [ibid, ¶71].     Aspals  
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13 November: 
I don't blame any lawyer who does his best for his client and uses the legal tools available to him. The point made by Anthony about human rights applicability and the approach of our courts is one I admit puzzles me. Like Tess, I can't see the logic in their decision. Looking at the way the European judges have been extending their jurisdiction I would bet that they say our soldiers do have human rights protections too.   Pongo 
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13 November: 
here's something for tess. our courts know nothing about logic or common sense. rights for quaddies? not from this lot of lightweigts they let wanted terrorists stay and say they got human rights but not soldiers dying on behalf of goverment. thaank christ i'm not serving today.   pete 
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12 November: It is difficult to see the logic in holding that ECHR protections are available to persons who are not citizens of ECHR states, but are not avilable to those who are but who happen to be soldiers. Serving your country and obeying orders of your commander definitely brings you within the jurisdiction of article 1 IMHO.    Tess 
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9 November: The point Anthony raises about the extension of Human Rights principles to battlefields shows that in effect no one these days regards the Bankovic decision as binding any longer. Its pretty simple but harsh principle was that the extension of jurisdiction had to be for an exceptional reason. This now seems to have been transformed into "any reason". This does have some beneficial effect for the victims of violence but the negatives that Anthony points out do cause a bit of a worry if they do as he says hamper military operations. Courts regulating the conduct of military wars is not new and that is why we've got the Geneva Conventions, but the understanding of modern lawyers, including me, of what modern battlefields are like is negligible. So making rulings affecting the lives of those that do and the conduct of military operations is a difficult path to tread. I am not saying we should not tread it but when we do there needs to be careful thought given to the effect on the soldier. In other words, take in the bigger picture rather than follow a utopian view.    Scipio 
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An interesting point about Bankovic. I think you are right that the decision has effectively been shredded by the courts - the Al Skeini and Issa decisions in particular. While jurisdiction is extended to the extent that the word "exceptional" is rendered almost irrelevant, it is denied to our own servicemen and women. Over the years I wrote about this on several occasions here, and remain firmly of the belief (a) not providing proper equipment and training to troops is negligent and (b) article 2 does apply to our soldiers. These are views I have held since at least 2001, when the issue first came to my attention. In fact, where failing to provide proper equipment continues after being made aware of the urgency of it, may amount to gross negligence. Our soldiers deserve proper protection. The lamentable failures of governments to deny the best equipment and training, purely on cost grounds, is a matter they should be brought to account over. It is one thing to send troops to war with the kit they have when an emergency arises, but quite something else when a deliberate decision has been made (as it was in Iraq) not to order equipment lest it revealed a plan to invade, or to fail to up-grade it when constant reports are being fed in that the kit is not sufficient for the job. Putting legal considerations to one side, where is the moral compass of people making these decisions over the lives of servicemen they are sending out as their agents to pursue their foreign policies?     Aspals  
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8 November: 
A fundamentalist ruled middle east can't be in Israel's best interests so it's interesting that they are not pro-Assad. The alternative which Dave and his crew are angling for is just too mad to think about. We help our enemies create a fundamentalist region of states that will then threaten the west.    Tuppy 
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8 November: 
The Saudis and Bahrainis may well have mixed feeleings about the so called Arab spring as they are two of the most repressive regimes in the region, which UK and USA support, and their citizens may well take great encouragement from any support given by the West to overthrow Assad.    Scipio 
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8 November: 
now that we dont have an army no longer arming rebels is the cheapest option and we can fight our wars by proxy. great new nato strategy that lets others do the dying.    pete 
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8 November: 
David Cameron lets his heart rule his head. He visited a few rebels, was shown some injured children and decided that he had to arm the rebels fighting the worthwhile cause against Assad, all the time ignoring the fact that there are loads of supporters of Assad killed or injured by rebels and that loads of rebels are actually al qaida who are supposed to be our enemy. His problem is that he wants to be seen to be doing something but what he and the rest of NATO will get is a collapse in the middle east.    Tuppy 
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I completely agree with Tuppy. "My enemy's enemy" is definitely not my friend in this instance. Intervention in Libya was lauded as a success, but repeating a lie does not make it true. The truth is that the country is in a terrible mess with the government controlling a small part of the country. The rule of law is non-existent (see the refusal to cooperate with the ICC over Saif, the failure to investigate the killings of Colonel Gaddafi and Muatassim Gaddafi). Egypt is politically fragile. The involvement of Saudi Arabia, Turkey and Qatar (Sunnis) has added a sectarian dimension to the Syrian crisis compounded by Turkey's hegemonic posturing as the US's ally in the region. And we wonder why Iran, a Shia country, wants a nuclear bomb!    Aspals  
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7 November: Two announcements over the past few days have sparked my interest. The first concerns the decision of the High Court relating to blocking the handing over of detainees to the US. authorities in Afghanistan (High Court blocks UK detainee transfers in Afghanistan).
The second concerns the statement by Mr Cameron to the effect that Bashar al-Assad should be allowed safe passage out of Syria and escape prosecution for war crimes if it ends 'slaughter'.
1.     As I mentioned before (see my contribution to Counsel Magazine on the case of Al Saadoon and Mufdhi), the ability of this country to participate in multinational peace building operations is being seriously compromised. While those representing the individuals may regard the decisions as victories, they may yet turn out to be quite the contrary. The size of British forces was dramatically reduced in the early 90s - the army was cut from 145,000 to just over 100,000). More cuts will see these numbers further reduced by about 20,000. Against that backdrop the need for intelligence sharing and cooperation with our allies is ever more important, as we no longer have the capability to go it alone. So, if military forces are being prevented from handing over detainees to the host nation authorities, what options are there if intelligence is to be gathered and terrorism is to be combated, remembering all the time that we operate in Afghanistan under the auspices of the UN and the Afghan authorities? This is not a new problem. It was pondered in relation to NATO's involvement in the Balkans. But that was a different campaign, where NATO intel ops were of a different nature. The factions were fighting against each other. Who should detainees be handed over to? In whose territory should they be released? Should their weapons be retained on release? In contrast, in Afghanistan the Taliban is fighting the government and the UN mandated forces supporting it. Intel is vital.
One option is not to take any detainees at all. The upshot: less intelligence, the fighting continues, more soldiers and civilians die because we are unable to pre-empt planned attacks, the terrorist wins. Not a good choice. A second option is to always allow the Afghans to do the arresting, by conducting joint operations (which was happening more frequently, until the increase in green on blue attacks). This means that from the beginning the detainee is in Afghan custody and subjected to their interrogation techniques from the start. However, there is then the problem of our intelligence operatives being accused of complicity in any mistreatment if they are present when interrogation happens or pose any questions directly or indirectly. The third option, that we arrest and decide which detainees are not involved (and release them) and which are (and are handed over to the Afghans), is no longer available as a result of the High Court decision. The terrorists are in a win win situation. Have we have lost our common sense in the torrent of human rights arguments? I cannot see an easy solution to the dangerous situation that these well-intentioned though naive decisions place not just our troops in, but the civilian population they are there to protect. They undermine the objectives of the UN which our troops are sent to achieve under a Security Council mandate. This mess needs to be resolved and resolved quickly, for the safety of us all. The decision in Al Skeini made sense: article 1 should apply to the exceptional situation where detainees are within our jurisdiction and where we are akin to the sovereign power. Should all that change when we operate in support of a sovereign power, or the UNSC, as the ultimate authority responsible?
2.    Mr Cameron's magnanimous comment concerning President Assad makes for a good sound bite. But, is it just that? I wrote about this conundrum last year, in connection with Gaddafi. So it is a sentiment that I agree with, as a matter of real politik, not because I like dictators: far better that one bad man is allowed his freedom than thousands more die or are wounded through continued fighting. The potential fly in the ointment to such a course is the ICC. President Assad is hardly likely to react positively to the PM's statement if he knows that the ICC will hunt him down. What is he likely to gain from the "offer"? Nothing. If anything, he is more in jeopardy. Not offering a way out, which is the negative result of the creation of an ICC with jurisdiction such as it has, means that there is no incentive for a leader to give up power. He might as well fight on to the bitter end, taking with him thousands more lives. So, when can the ICC exercise jurisdiction? where the accused is a national of a state party to the Rome Statute; or where the alleged crime took place on the territory of a state party; or when a situation is referred to the Court by the United Nations Security Council. Complementarity is not relevant at present. Clearly, crimes of genocide and crimes against humanity, war crimes and aggression are subject to its jurisdiction. Syria, however, is not a party to the Statute. So, it is only by virtue of article 13 that a reference might be made potentially (A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or (c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.) At present, President Assad's only lifeline in taking the Cameron offer is the refusal of China and Russia to support any UNSCR that might seek to authorise the ICC prosecutor. But friendship is a fragile commodity in international relations and history is littered with old discarded friends (the most recent of which was Gaddafi).
Anthony   Aspals Consultancy
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26 October: Great news about the decision about the snatch landrover deaths but it wont stop the mod sending soldiers out without proper kit. Blair has a lot to answer for.   Pongo 
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14 October: I am sure that over the coming days there will be much comment about the arrest, interview and charge of the Royal Marines. I assume that the charges are under s.42 AFA 2006. What puzzles me is that, having been charged, why they have been held in custody? The incident was said to have occured last year, they have been at large since then? Surely, there are sufficient conditions that could be imposed. I for one feel that members of the forces will see this as a kick in the teeth. At a time when there is a reduction in the overall strength of our forces through redundancy, this decision to charge will not go down well. I wait to see the outcome of this case. One where it has been made clear that DSP has been involved at an early stage. This case may well silence those doubter about the Court-Martial system, however, I doubt it.    Goldie  
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There have been a couple of responses to this post, but as charges have been brought against some of the soldiers, with criminal proceedings a possibility, I have decided not to post comments or further discussion on this case, although comments on the more general topic of the court-martial/summary disciplinary system are still welcome.
Update as at 27 October: the 5 soldiers have been released from custody.     Aspals  
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8 October: Replying to Anthony, the Turks are permitted to defend themselves but - suppose it's all a matter of how far they push it. The reference to the ICRC view is important. Overdoing the retaliation looks like war. The fact is that Turkey is at war. Funny the UN hasn't said anything.    Will  
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5 October: 5 innocent Turkish civilians, 3 of them children, were recently killed by a mortar allegedly fired by Syrian forces into a Turkish village. The Turks fired back and killed several Syrian soldiers. But the latest Turkish outburst of fury and indignation, followed by threats and war-like retaliatory measures, followed by the rather bewildering statement that, inspite of it all, they don't want a war with Syria, rather belies the fact that they have been party to hostile action against the Syrian regime for some time. Putting aside the proportionality of their so-called retaliatory strikes (reprisals), they have advocated the creation of safe areas within Syria, which would be an act of war as it is an unlawful violation of Syrian sovereignty unless authorised by a UN SCR or permitted by the Syrians themselves; they have supported rebels fighting the Syrian government and they have failed to prevent rebel forces from operating from inside the Turkish border which would justify Syrians in taking action against them (remember the "Caroline"?). Just imagine how the Turks would react if the Syrians did to them what they are doing to Syria, in aiding a rebellion against the government. What the Turkish Parliament authorised was not a reprisal but a year-long authority to violate the sovereignty of Syria by conducting military operations inside Syria, like the bombing raids that the army regularly carries out against suspected Kurdish rebel bases in neighbouring Iraq. All of which makes the conciliatory statement "Turkey does not want war" sound rather hollow. It is worth observing that the taking of reprisals is regarded as a somewhat outdated concept but, if employed, subject to stringent criteria. To paraphrase the Manual of the Law of Armed Conflict, a reprisal
  1. Should be in response to serious and manifest unlawful acts committed by state agents of a foreign power
  2. Its purpose must be to compel the other power to comply with the law of armed conflict
  3. Reasonable notice must be given of the intent to take reprisals
  4. The victim of the violation must first exhaust other reasonable means of securing compliance
  5. The reprisal must be directed against the property or personnle of the adversary
  6. The reprisal must be proportionate to the harm suffered. An excessive response cannot be justified on the basis only an excessive response it will deter further violations
  7. It must be publicised so the adversary is aware of why what would otherwise be unlawful acts are being conducted
  8. The reprisal must be authorised by government
  9. The reprisal must not be taken or continued after the enemy has ceased to commit the conduct complained of.
As Turkey is not, officially, at war with Syria, it is not clear that what Turkey did was, in fact, lawful. It does not appear that they complied with points 3,4,7 or 9. They never raised self defence, which might have been another matter.
The ICRC view is that the "reticence of States to resort to reprisals can be explained by the fact that they are ineffective as a means of enforcement, in particular because reprisals risk leading to an escalation of violations." Is that what Turkey wants? Is that what we are acquiescing in? The ICRC also says, "It is also relevant that there is much more support these days for the notion of ensuring respect for international humanitarian law through diplomatic channels than there was in the 19th and early 20th centuries, when the doctrine of belligerent reprisals as a method of enforcement was developed. In interpreting the condition that reprisal action may only be taken as a measure of last resort, when no other possibility is available, States must take into account the possibility of appealing to other States and international organizations to help put a stop to the violations." [Rule 145. Reprisals: Rules of customary international humanitarian law. Interestingly enough, Turkey has not adopted the ICRC rule against reprisals, but it has still breached the UN Charter].
In the event, bearing in mind the supreme authority of the UN Charter, the only body to authorise military force is the UNSC, which did not do so in this case. None of the western powers have thought fit to mention this fact and there appears to be a tacit acceptance that Turkey acted lawfully, in spite of the law. Isn't this the sort of international club approach that makes many soldiers skeptical about the use of international law? Turn a blind eye when the situation dictates.
There is a worry that the recent flexing of military muscle by Turkey, its aggressive stance with Israel and its support in the Libyan escapade, demonstrates its urge to be the new major power in the Middle East, all with the support of the USA, which has several military bases in Turkey and with which it has a very close military and financial/funding arrangement. The EU and US seem content with this, with the UK once more considering championing the Turkish cause for EU membership.
Turkey's calls upon NATO have not, thus far, produced the sort of reaction Turkey perhaps anticipated. All the same, it is not beyond the bounds of possibility that they are limbering up to unilateral action (having now notched up two alleged violations by the Syrians) and that the US, while not wanting overt involvement, might be quite happy for the Turks to weigh in as their proxy, with US assets providing intelligence and other support, as necessary. Personally, I believe it would be a most foolish thing for the Turks to do, as it would raise the real possibility of Iranian involvement which, in turn, would set the Middle East alight. It could even yet involve the superpowers. It has to be said that the Turks do have form for unilateral action cleared by Washington and tacitly backed by them, as we saw in 1974 when they invaded Cyprus with 30,000 troops, ships and aircraft, under the pretext of protecting the Cypriot Turks against a home guard force of 2000 soldiers who had not threatened anyone. The attempted coup by Nicos Sampson having come to an abrupt and swift end and the alleged Turkish fear having passed, 38 years later they are still there. From what I hear, they are not as welcome as they were during the Denktash years. But they refuse to leave. They have breached international law by annexing the country and by changing its demography. But, like their closest allies, the US, they feel confident enough to lecture other nations on international law and human rights.
The fact that during the Syria crisis the Turks have twice tried to invoke article 5 of the NATO Treaty does not sit easily with their statement about not wanting war. Their first attempt to get NATO involved was when they sent one of their old aircraft to probe Syrian defences. That was shot down inside Syrian airspace. The Turks banged the table and invoked the Treaty. NATO basically told them to calm down. The trick did not work. So, this more recent event, savage without doubt in its effect upon the lives of the victims, was closer to the mark. It is not beyond the bounds of credibility that this was a Syrian rebel stunt, designed to have the effect upon Ankara that it did. This is reminiscent of the mortars fired at the market in Sarajevo, blamed on the Serbs but seriously doubted by General Sir Mike Rose whose own officers re-traced the trajectory to its origin far away from Serb lines. (It was later stated by the UN that it was not possible to say where the shell had come from). The difference with recent events is that the allegation was the Bosniaks fired on their own people. Here, the possibility is that Syrian rebels (and jihadi fanatics) fired on Turkish citizens to entice Turkey to get involved. Of course, it could have been the Syrian army who were responsible. However, to think that they would have been foolish enough to deliberately target Turkish civilians when they have enough on their plate fighting the rebels already backed by Turkey, Saudi, Qatar and others, stretches credulity. I don't believe anyone in NATO, including the Turks, really believed that it was a deliberate attack on Turkish civilians. In contrast, however, the Syrian rebels have a track record for hiding and fighting among civilians, which has the inevitable effect of increasing civilian casualties, which they can conveniently blame on regime troops. Nor do they appear to have qualms about detonating suicide bombs which indiscriminately kill civilians, as we recently saw in Aleppo.
So, the retaliatory action by the Turks may be seen as satisfying their honour. War is a dirty business, but politics is the dirtiest.
I commend the article by Con Coughlin, in the Daily Telegraph of 4th October 2012.
Anthony   Aspals Consultancy
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8 September: if us dont allow people to be tried by icc for alleged war crimes they got no right to mixin everybody elses business and accuse them of war crimes.
   pete 
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7 September: The Senussi and Gaddafi cases show how ineffective international law is. The new Libya, which is supposed to embrace democracy and the rule of law - after all, wasn't that part of the purpose to end Gaddafi senior's corrupt and autocratic rule - has failed completely and the refusal to hand Saif over to the ICC is a classic example of the impotence of the ICC. Senussi will fair no better. The US of course doesn't say much. Why should it? After all said and done, they are a law to themselves and don't allow their people to be tried by the ICC. So their drone pilots can sleep safely.
   Tess 
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7 September: There was an interesting comment in yesterday's papers by Geoffrey Robertson QC looking at the extradition of Senussi to Libya. He describerd it as a blow to international justice. He made the same point Aspals did about UK saying nothing
   Tuppy 
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Link added.     Aspals  
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5 September: Mauritania has extradited Senussi (Gaddafi's intelligence chief) to Libya. He will almost certainly be tortured. Of course, if Mauritania were a signatory to the Torture Convention, it would have just breached article 3. Now what will follow is a show trial. He should have been handed over to the ICC for them to prosecute in a fair process - or I should sy fairer process. That court is a political tool but at least they don't hand out the death penalty..
   Tess 
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Tess, I couldn't agree more. What is desperately sad is that none of the major governments involved in the destruction of Libya and the installation of the present chaos (the government only really exists in Tripoli) have expressed any concerns. May be they will change their minds when Senussi starts spilling the beans on rendition - or perhaps that is why they are saying nothing: a nice quiet little trial where the public can be excluded and the outcome a foregone conclusion would suit their purposes rather well, n'est-ce pas?     Aspals  
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4 September: The Foreign Office or more precisely, Hague backed down from the threat to invade the Ecuador embassy. What a plonker. He should have read the advice here before spouting forth.
   Will  
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I am sure that they are avid readers of the site .     Aspals  
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22 August: The Chinese have said what we all thought was the case, that the US is using the excuse of chemical weapons to threaten military action. What they overlooked is that the Syrians have not used them so far and the US has failed to point to any evidence to support what they say. If anything, the Syiran troops want to prevent these weapons from falling into the hands of any of the rebel factions some of which are highly unpredictable.
   Tuppy 
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22 August: There's a good article in the Guardian by Seumas Milne which exposes the reasoning behind the pursuit of Julian Assange. Milne makes the point that the UK just does the USA's bidding. Here is also a link to the opinion of a Swedish expert in their law. The rights of a defendant make scary reading. By the way Anthony it is Martha Kearney not Carney.
   Will  
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21 August: Another interesting post by Anthony on the Assange case. I read recently that the decision to storm the embassy was Hague's. He ignored the advice of his lawyers who apparently made similar points to Anthony. It really was an exceptionally stupid thing to say.
   Tess 
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The announcement reported on the BBC that Swedish prosecutors remain determined to question Mr Assange in Sweden, rejecting a suggestion from Ecuadorian President Correa that prosecutors could travel to London to question Mr Assange, when they have travelled abroad to interview other suspects (per Martha Kearney, "The World at One", 21 Aug), tends to confirm Mr Assange's suspicions, shared here and elsewhere, that the true purpose of the extradition is not so much to pursue a sexual assault/rape allegation (that the initial prosecutor thought was too weak to support charges), but to fulfil another agenda. Something Mr Assange has always maintained. The stance of the British Foreign Secretary, apparently acting contrary to his legal advisers' advice, shows a remarkable and almost ineffable lack of judgment and understanding of international diplomacy. Damage which may well be long-lasting in respect of his political career. Thankfully, the FO seems to be backing away from the threats of illegal action made earlier. For our part, we can't even get rid of foreign terrorists or criminals convicted of serious crime and say we must abide by the law. Yet we are prepared to threaten to break it - and potentially endanger our embassies and consulates around the globe - in relation to the allegations Assange faces. It doesn't make sense.  [Corrected, thanks Will].
See also:  [Daily Mail, 25 August 2012]    Aspals  
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17 August: I say at the outset that I am no expert in diplomatic law, or the immunities of embassies, but one or two things about the recent Assange asylum claim and the reaction of the British Foreign Office have prompted me to air my wider concerns, for what they are worth.
I do not promote the cause of Julian Assange, as I understand he (or his organisation) is wanted by the US authorities for the release of confidential documents that the US says led to the deaths of its citizens. If that is true, then they are very serious allegations indeed, and one can fully appreciate and sympathise with the desire of the US authorities to put him on trial. However, it is the means being employed to achieve that end which are the most worrying, to my mind, and which have the most serious implications for the rule of law and for our national reputation. So, it is not an indictment so much of the Swedish prosecutorial system - because they may well decide after having interviewed Assange that the case is, indeed, too weak to prosecute - but, rather, the fear that once released by those authorities he will then be re-arrested by them on an extradition application by the US, and that that was the real intent all along. That is where the concern over subterfuge comes in. I leave for discussion perhaps on another occasion the particular merits of the oft criticised European Arrest Warrant.
Two complainants, Swedish citizens, allege sexual assault/rape (part of the evidence of which is the failure to use a condom) against Mr Assange. As I understand it, the prosecutor initially thought there was insufficient evidence to prosecute but the matter was reconsidered after pressure was placed on the prosecuting authorities. Assange has always denied the allegations and maintained that the activity with the females concerned was fully consensual. However, on the basis of those allegations, the Swedish authorities successfully applied for his extradition from the UK and, fearing that the real reasoning behind this insistence had little to do with the rape allegations but more to do with the fact that the Swedes would grant his extradition to the US, once he was on Swedish soil, Assange sought, and was granted, refuge and, as at Thursday 16th August, asylum in the Ecuadorian Embassy in London. It is what follows which is the cause of deep concern, as the UK is proposing to flagrantly breach international law to enter the Embassy and seize Assange. The ramifications of so doing are very grave for our Embassies around the world where we are in danger of setting a precedent for their vulnerability.
We must remember that the basis relied upon by the British authorities for this breach of international law is the rape allegations by Sweden. While rape is clearly a serious crime, it is not in the sort of league that would justify the invocation of the Diplomatic and Consular Premises Act 1987. As Carl Islam points out, in his article written in 1988, "Before this [Act] no legislative powers existed to prevent diplomatic missions from establishing their premises in any part of London, nor were there any powers to acquire title to former diplomatic premises which were empty for long periods, causing environmental, health, security and other hazards. The Act is primarily addressed to these problems, and permits the government inter alia:
  1. to prevent missions from setting up offices in sensitive parts of London;
  2. to deal with the problem of empty former diplomatic premises by acquiring title to them and then selling them;
  3. to remove diplomatic status from premises which are being misused;
  4. to retaliate in kind if an overseas government insisted that a British mission move from existing premises or withheld consent to the acquisition of new premises."
Section 1 of the Act provides that, in determining whether to give or withdraw consent or withdraw acceptance the SoS must be satisfied that to do so is permissible under international law. In determining whether to do so he shall have regard to all material considerations, and in particular, but without prejudice to the generality of this subsection, (a) to the safety of the public; (b) to national security; and (c) to town and country planning. These exceptions do not arise here. It is difficult to see what threat to the safety of the British public or to our national security Mr Assange poses (on the basis of the allegations for which his arrest is sought).
The extent of the protection extends even to times of war. This Act amended the Diplomatic Privileges Act 1964 Act by inserting a provision that, "if diplomatic relations are broken off between two States, or if a mission is permanently or temporarily recalled: (a) the receiving State must, even in case of armed conflict, respect and protect the premises of the mission, together with its property and archives;"
Article 22 of the Vienna Convention (which the UK ratified on 1 Sep 1964 ) confirms the inviolability of mission premises " barring any right of entry by law enforcement officers of the receiving State and imposing on the receiving State a special duty to protect the premises against intrusion, damage, disturbance of the peace or infringement of dignity. '"Premises of the mission" are the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used for the purposes of the mission including the residence' of the head of the mission.' Even in response to abuse of this inviolability or emergency, the premises may not be entered without the consent of the head of mission. So it is difficult to see how the UK says it is justified in entering the Ecuadorian Embassy without such consent and without the justification falling clearly within the exceptional parameters of the Act (insofar as they are not inconsistent with the Convention). Domestic Acts must not be inconsistent with international treaty obligations. Indeed, if police can enter an Embassy, why not open up diplomatic bags and communications? Where does one draw the line?
The Ecuadorians have called the Foreign Office bluff by granting asylum to Mr Assange. It is now time, in my view, for the FO to eat some humble pie and recognise that it got it wrong, at least for the sake of our own embassies abroad where any precedent we set might have repercussions in those cases where we grant asylum or refuge to human rights abuse victims. Of course, the really worrying implication is for our foreign policy thinking in general. This "gung-ho" approach disrespecting international treaty obligations makes our breaches of UN resolution 1973 in respect of Libya that much more understandable. We may well end up before the World Court, yet, to be publicly shamed by Ecuador for our breach of International law.
For a perspective to the case against Mr Assange, and subsequent events, see the Blog by Helene Bergman, a co-founder and anchor of the Swedish feminist radio show, Radio Ellen.
Anthony   Aspals Consultancy
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8 August: the latest report that Iran is pledged to defending Syria is a serious warning to the west not to get involved, The situation is beyond the stage when intervention can prevent more blood being spilt. Whoever wins this war will not stop the blood letting that will follow. We just have to accept the bitter truth that meddling in this war will not be in the long term interests of the west, east or middle east.    Tuppy 
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4 August: Nobody really believes that Syrian forces will use chemical weapons. That's just propoganda dreamt up by the Americans to find an excuse to take out Assad. The real worry is if the rebels get hold of them and then use them against the army and possibly each other.    Will  
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28 July: spot on tess.    pete 
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27 July: The report by RUSI makes some interesting points, but I believe that there could be a lawful way for force to be used. If there is a genuine fear that the Syrians will use chemical weapons against outsiders, it may be possible to argue that a pre-emptive strike or limited military op to make safe or capture those weapons would come within the UN charter.    MilLaw 
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27 July: The US is spoiling for a fight in Syria, as are the Turk's and Saudis. It seems to me they are looking for any excuse and ratcheting up the rhetoric over the wmd and the fate of rebel fighters. Can't see anything wrong in a government defending itself against rebels. As for the WMD Assad made a mistake saying he would use them against outsiders, but would he. I don't think so, he'd be well and truly done for then. Nobody would give him a hiding place.    Tuppy 
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27 July: Great post Anthony. But don't forget that it was also France that helped install the Ayatollahs in Iran just as it was France leading the charge against Gaddafi who allegedly had given large sums of money to elements of the French political classes. Very grateful they turned out to be. After Gaddafi was brutally murdered in violation of international law, the west stood silent, as they did over the murder of his son. Even the ICRC and Amnesty look like they couldn't care less. As for the international criminal court, they should be actively pursuing this. But they can't even get the Libyans to hand over Saif Gaddafi, who will surely be put on a show trial and murdered by the new regime. So perhaps it's no wonder Assad is a bit suspicious of any promises or offers made by the west and its friends. Gaddafi thought he had friends.    Tess 
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27 July: We can't ignore the struggle for dominance in the region between Saudi Aradia and Turkey. They both want to be seen as the leaders of the Middle East. The politics is quite fascinating.
   Tuppy 
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Quite fascinating and quite dangerous. Turkey has a very unpredictable and volatile regime that sees the exercise of military might as an extension of its virility. All the same, it is very close to the USA and under its influence. So, I think we need to understand that the leash is held by Washington - although it is quite loose at present.    Aspals  
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27 July: westen military policy is disfunctional. until there is proper coordination between military and politicans with the politicians perpared to listen to commanders there will always be a mess left behind as in libya.
   pete 
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25 July: I really enjoyed Anthony's informative post on the situation in Syria and elsewhere. The west has really made a mess of its interventionism. Our murky involvement in Libya has more to it than we have been told so far. I still think that Gaddafis death was more a set up by Nato and special forces than a chance act of revenge by rebels who just happened to find him. Maybe it was all a convenient accident that fortuitously avoided any embarrassment for the UK and its former prime minister.
   Will  
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25 July: I took this from the HRW web site about Saudi, "Saudi Arabia struggles with a poorly defined and nontransparent justice system based on religion that metes out draconian sentences. Women and minority Shia citizens face systematic discrimination. Immigration and labor restrictions on migrant workers facilitate widespread abuse. Western countries remained largely silent about poor rights conditions in the kingdom." Amnesty reports from the 18 June that the authorities clamp down on human rights activists. Mark Adomanis cogently said in Forbes
"Saudi Arabia, despite its recent embrace of the cause of democracy and freedom in Syria, is and has been for the past 80 odd years one of the most violently repressive and backwards societies in the world: an absolute dictatorship replete with "morality police" and various other kinds of religious totalitarians."
He mentions their persecution of the Shia, and the intervention in Bahrain to crush a popular uprising by Shia. Syrian Alawites are from the Shia. Even the US State Department reports
"torture and physical abuse; poor prison and detention center conditions; arbitrary arrest and incommunicado detention; denial of fair and public trials and lack of due process in the judicial system; political prisoners; restrictions on civil liberties such as freedoms of speech (including the Internet), assembly, association, movement, and severe restrictions on religious freedom; and corruption and lack of government transparency. Violence against women and a lack of equal rights for women, violations of the rights of children, trafficking in persons, and discrimination on the basis of gender, religion, sect, and ethnicity were common. The lack of workers' rights, including the employment sponsorship system, remained a severe problem."
Uk are great friends with the Saudis and Bahrainis. The US State Department reports the Bahrainis for
"the inability of citizens to peacefully change their government; the dismissal and expulsion of workers and students for engaging in political activities; the arbitrary arrest and detention of thousands, including medical personnel, human rights activists, and political figures, sometimes leading to their torture and/or death in detention; and lack of due process. Other significant human rights concerns included arbitrary deprivation of life; detention of prisoners of conscience; reported violations of privacy and restrictions on civil liberties, including freedoms of speech, press, assembly, association, and some religious practices. In some instances the government imposed and enforced travel bans on political activists. Discrimination on the basis of gender, religion, nationality, and sect persisted, especially against the Shia population. The government demolished multiple Shia religious sites and structures during the year. There were reports of domestic violence against women and children. Trafficking in persons and restrictions on the rights of foreign workers continued to be significant problems".  The Shia are again persecuted there.
Along with the Turks, who have an equally egregious human rights record, and where most Muslims are Sunnis forming about 70-80%, and the Qataris, also Sunni Muslims, one can see that their support for the Syrian Sunni rebels has little to do with promoting human rights and the removal of a brutal dictator, but is more blatantly about wiping out another Shia leader. No wonder Iran, a Shia state, is feeling twitchy. The real danger is opening up a full-blown religious war between Shia and Sunni. Indeed, Mark Adomanis comments that
"The Russians, partially because many of the countries loudly arguing for intervention in Syria are themselves blood-spattered dictatorships, think that what's going on in Syria is not in any way a question of "human rights" or "democracy." Instead they tend to see it for what it is: a nasty, bloody, destabilizing and extraordinarily dangerous proxy struggle between the Saudi-led Sunnis and Iran-led Shiites."
Whether western states are alive to this danger is not clear. One hopes they are, as it is pretty obvious in my humble opinion. If they are, they are allowing concepts of democracy to blind themselves to the reality. Is Libya really a better place now than it was before? Torture and serious human rights abuses abound. There is no rule of law, just rule of the tribe and the gun. Iraq is a mess, with hundreds of people dying in sectarian violence. In Syria, Assad's regime may have been brutal, but there is little guarantee that if he were to fall, what follows would be any better. The rebels are a disparate group of idealists, opportunists, and fundamentalists, and their ranks are increasingly riddled with undesirable Al Qaeda elements. Yet we seem to think that it is good to get rid of Assad at any price. Of course, the whole episode could be part of the US' wider foreign military policy. General Wesley Clarke has already revealed that the US planned to take out 7 countries in 5 years, namely, Iraq, Syria, Lebanon, Libya, Somalia, Sudan and Iran. The UK has obligingly wagged its tail and gone along with some of these plans, which have and are causing more instability than stability. Our foreign policy seems to have been peppered with disasters, too.
In Iran, under The Shah's social and economic White Revolution, the country was transformed into a global power. It was modernised, western leaning and women were given the vote. The Shah was supported by the UK who thought well of him, in spite of the repuation of his feared police, until he lost the support of the Shia clergy, as he was a secular Muslim. Khomeini was given sanctuary in France during the years of the Shah. Come the revolution, backed by the UK and US, leading to the overthrow of the Shah, in 1979 Khomeini was installed as the leader and the country regressed into the middle ages and shut itself off from the west as a fundamentalist Shia state, calling the US the "Great Satan", a term also, occasionally, used in respect of the UK too. The US and UK had helped install their own enemy. There is no democracy in Iran. That was a real US/UK shot in the foot. Iraq saw the US-led alliance get rid of Saddam (a Sunni). The post-Saddam country does not have a proper democracy (voting is mainly along ethnic lines), there are huge sectarian and political tensions and it is now significantly under Iranian influence. The result: Iraq is a dangerous place at the mercy of dangerous and unpredictable extremists. Out of cruel but orderly dictatorship we have cruel, chaotic anarchy. Libya was another sad story. After years of enmity between Gaddafi and the west, it was Tony Blair who helped bring him in from the cold and was one of those who persuaded him to abandon his WMD. The new friend of the west, now disarmed by cunning subterfuge, was ripe for the taking. NATO abused UNSCR 1973 to side with the rebels (and Qataris and Saudis) and aggressively obliterate a tiny state of 6 million people and install chaos, with thousands held in conditions every bit as bad as under Gaddafi and torture and abuse of human rights perhaps even worse. Yet UK/US and NATO have labelled Libya a success! Now western governments are focused on Syria and it is only thanks to the courage of the Russians and Chinese, having been deceived over Libya, that there has been no western military intervention there. That would be a catastrophe and allow the most cataclysmic and murderous involvement of Saudi, Turkey, Bahrain and Qatar, encouraged and supported by the US and UK, which really could have the potential to escalate into a global confrontation.
Anthony   Aspals Consultancy
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25 July: Turkey turned its back on Assad when they said they wouldn't support a leader who killed his own people. This is the same Turkey that has been condenmned by Human Rights Watch for its persecution of Turks exercising freedom of expression and association by the ongoing prosecution and incarceration of journalists, writers, and hundreds of Kurdish political activists, particularly through the misuse of overly broad terrorism laws. Violence against women in Turkey remains endemic. Police continue to use excessive force, particularly against demonstrators, and are rarely held accountable for such violence. In an annual report released on Thursday, the European Court of Human Rights found that Turkey is by far the worst violator of human rights among the 47 signatory states of the European Convention on Human Rights.
   Will  
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The Kurds have been well persecuted by the Turks. See the Huffington Post article of 5/03/2012, by Ruwayda Mustafah Rabar (a freelance British-Kurdish writer based in London) who reports, "In the past year, hundreds of Kurds have been arrested including activists, campaigners, and members of parliament, union members, writers, filmmakers and directors. Despite the wide scale crackdown on activists, there has been an overwhelming response and rise in pan-Kurdish nationalism because of the injustices Kurdish people continue to face in Turkey due to their ethnicity." But then again, the regimes in Saudi Arabia and Bahrain are also repressive, but they see no inconsistency in opposing Assad. Perhaps it is because their antipathy is more about the Shia-Sunni conflict than anything else, so as to lead to supremacy of Sunnis over Shia and everone else. The west seems to go along with this.     Aspals  
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25 July: Allowing rebel forces a base form which to operate sounds like a classic "Caroline" situation.
   Scipio 
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An interesting point, Scipio. Here is a link I found to a useful article on the case.    Aspals  
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25 July: Replying to Inquirer, it isnt so much illegal as making your self an enemy of the people/regime fighting those you are helping. It's an act of war and would entitle Assad to attack Turkey. Turkey provides safe haven to the rebels and they use those them to plan their attacks on Assad. He won't attack Turkey because then Turkey will say that as members of NATO an attack on them is an attack on all Nato members. The same goes for the US who are training the rebels, and Saudi Arabia and Qatar who are arming them.
   Tuppy 
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25 July: Can somebody please explain whether it is illegal for countries to help the rebels in Syria by supplying weapons and ammunition to them and that is ok, but the Russians can't supply weapons to the regime?, even when they want to return helicopters they repaired under a maintenance contract?
   Inquirer 
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15 July: this shower in government has no idea how to treat squaddies with respect. bring back from afghan after telling many of then theyre going to get the sack then dump them in tents and corimecs to guard the olimpics. thats what our forces have become a cheap version of g4 security.
   pete 
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15 July: How sad to read the Aspals reoprt of the plight of people in Libya being described as worse now than under Gaddafi. The west has really failed the Libyans. We should have done more to help rebuild the country after the devastation we inflicted. It looks like we may have made things worse, while our intentions remained good.
   Briony 
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12 July: Good to see the board up and running again. Ref Briony's comment, I wouldn't say that Saif isn't being treated the same as other prisoners, as they all seem to be tortured and mistreated by whoever is holding them. Amnesty has been going on about the way rebels treat their prisoners and the lack of any rule of law. Which makes you wonder what it was that NATO achived apart from the complete dismantling of the previous regime and the institutions that actually gave Libyans a good standard of lliving.
   Will  
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12 July: thats politics for you. look at what happened to mubarak a friend of the us and their man inthe middle east but as soon as the yanks got a wiff of the revolution they dropped him like a hot potato. some friend. we did the same. i could also mention gaddafi. remember bliar and the big push to bring gaddafi in from the cold. a few years later we were more than happy to want his head on a plate. not that i think it was wrong i'm just saying that politics is a dirty game.
   pete 
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11 July: It is disappointing that our government doesn't act consistently, but I hope that whatever is said or not said publicly they are doing lots behind the scenes. Feelings run high over Saif Ghaddafi but he is a prisoner now and has to be treated the same as other prisoners. Libyans suffered a lot under his father so I can understand why they want to put him on trial.
   Briony 
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10 July: The blog has been a bit silent for a long time which is surprising when you think about what has happened over the past few weeks. The news today at any rate was great. The conviction of Lubanga is a demonstration of the reach of the ICC. People who commit the sort of acts he did deserve to be punished. Having said that, the fate of Saif Gaddafi still hangs in the balance and the ICC seem powerless to do anything about it. The government in Tripoli also looks powerless to order the rebels holding him to hand him over. Our government needs to speak out and put its fine words about respect for himan rights and international law into action.
   Briony 
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Good to see you "kick starting" the SB back into action, Briony. You are right about our government, they are big on talk but light on action - may be it's because they helped create the lawless chaos that exists in Libya right now. The really frightening thing is that the Amnesty report, issued on 5 July, talks about torture by the rebels, and our government remains silent. The Daily Mail carried a report of child soldiers aged 10 fighting with the Syrian rebels. Our government remains silent, even after the conviction of Lubanga. As for Saif Gaddafi, his case is a real test of international law. If we say that we expect those engaged in conflict to abide by IHL and IHR obligations, we should not shirk our own obligations. It shames our nation. It also completely undermines the credibility of the Foreign Secretary and Prime Minister.     Aspals  
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25 May: Of course Will is right. This was not a formal government sponsored prosecution and it is, to a great extent, merely symbolic. The USA is not a signatory to the ICC Statute. So the forwarding of transcripts of the proceedings to the Prosecutor at the ICC will not make a difference. The real test is whether there is any meaning to the Geneva Conventions and the duties laid down in articles 129-131. I say this because we know the Bush administration approved "enhanced interrogation" which is a euphemism for torture. In fact, back in February 2002, Mr Bush signed a White House memo saying the GCs did not apply to Al Quaeda as they were not High Contracting Parties, and that common article 3 did not apply because they, Al Qaeda and the Taliban, were engaged in an international conflict, and that Taliban detainees were not to be treated as PW). Torture is not only an offence under the Torture Convention (which provides universal jurisdiction to prosecute) but, of course, is a grave breach of the GCs. The US was at war with Iraq during which time these techniques were authorised by the former President and his administration. Thereafter the GC provisions continued to apply to the post-conflict occupation phase. Whether the subsequent acts committed during the "war on terror" were within the GCs is an interesting question, however in those circumstances, the matter would fall within the jurisdiction provided by the Torture Convention, to which the US is a signatory and which it has now ratified. So, while there is a hunger to prosecute the likes of Charles Taylor (and I do not seek to compare the scale of atrocities in which he was found complicit with the torture of a few individuals authorised by President Bush which, however unacceptable, was for the principal purpose of saving the lives of many) the failure to act in situations where leaders of powerful nations are suspected of unlawful acts (Mr Bush was less reticent about "enhanced interrogation") is of some concern and raises questions about the credibility of IHL when it comes to prosecuting leaders of powerful nations and the willingness of the confraternity of nations to pursue justice against all wrongdoers, regardless of who they are. It is only fair to say that, in his memoirs (Decision Points), ex-President Bush defends "enhanced interrogation" techniques and continues to maintain that they are not torture.
For an interesting on-line article, see: US detainee abuses approved by senior officials: Senate report
Anthony   Aspals Consultancy
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25 May: Replying to Anthony. The so called prosecution of Bush and some others was not a court, so what meaning does it have apart from a symbolic one?
   Will  
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21 May: Turkey is rubbing its hands with glee at the prospect of a renewed EU membership application, now that their biggest opponent has been ousted by the French electorate. Yet, while for over 38 years they remain in illegal occupation of a sovereign EU member state, with 30,000 Turkish troops on the island of Cyprus, they have the temerity to raise objection to the stationing of Israeli soldiers in the South. This is something the Israelis might identify as Chutzpah.
On a separate note, little has been mentioned in the press of a remarkable decision made by a Malaysian tribunal last week dealing with allegations of torture from those who suffered at the hands of US soldiers and contractors in Iraq and Afghanistan. The trial was held in Kuala Lumpur and War crimes expert and lawyer Francis Boyle, professor of international law at the University of Illinois College of Law was part of the prosecution team. The result, after hearing testimony from 3 witnesses, Abbas Abid, Moazzam Begg and Jameelah Hameedi, and two Statutory Declarations by Iraqi citizen Ali Shalal and Rahul Ahmed, another British citizen, was the conviction of George Bush, Dick Cheney, Donald Rumsfeld and their legal advisers Alberto Gonzales, David Addington, William Haynes, Jay Bybee and John Yoo. Full transcripts of the proceedings and the charges are now being sent to the ICC prosecutor. Of course, in spite of the recent conviction of Charles Taylor for aiding and abetting war crimes, nothing will come of the move, as the USA is not Sierra Leone, nor is it a signatory to the ICC. Which throws a huge question mark over the implementation of the new world order of international justice and the reach of its remit. The Charles Taylor case has serious implications for world leaders. Or at least it should have, if the ICC and international justice has any credibility through its impartial application.
Anthony   Aspals Consultancy
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1 May: The question Anthony asks about where the legal authority is derived from for sending in military advisers to help Syrian rebels is one he will never get an honest answer to. All sorts of pious excuses will be given by states found to have agents working there but they will all be short of lawfulness.
   Scipio 
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29 April: There is an interesting piece by Alasdair Palmer in today's Telegraph which reinforces the point I made in my comment of 14th April when I discussed what I called the perennial dilemma. If you don't give a bad man a way out he will fight on, probably with more determination and the concommitant suffering and loss of life. After all, his fate is a foregone conclusion so what has he to lose?
Another interesting point, again from this week's news papers, is that of the role of governments supporting rebels fighters and the analogy of the fate of Charles Taylor. The author looks to the sending of arms to Syrian rebels. If the law is not applied universally, what credibility does it have? There are quite possibly many "military advisers" on the ground in Syria, assisting the rebels. All in violation of international law, the UN Charter and the sovereignty of the Syrian government who are the only agency to authorise ingress to their country (absent a UNSCR under Ch VII). If any government admits to sending "advisers" they should be asked from where they derive the legal authority to do so.
Anthony   Aspals Consultancy
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27 April: I admit that we need to know more about the background, but the comments of the Court of Appeal and the trial judge seem to say all that needs to be said about the merits of the case. Even if there was a realistic prospect of conviction it is difficult to see how it was in the public interest to prosecute the case. I couldn't see the CPS prosecuting in similar circuamstances.
   Tess 
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Take a look at the Trooper Williams case. The CPS prosecuted that case. According to the Telegraph the judge, Mrs Justice Hallett, suggested that the decision to prosecute him had been a "betrayal" of British troops.    Aspals  
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27 April: I happen to agree with the other comments about the court martial case. More important, it shows that the prosecution decision making process needs reform. Only having a truly independent prosecutor will give the public confidence that decisions to prosecute soldiers are taken without the army looking over the case lawyer's shoulder.
   Tess 
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It is questionable that the army would have supported the decision to prosecute, which rather underlines the independence of the Service prosecutors does it not? The Daily Mail report indicates that the case had been to the Court of Appeal, presumably on a prosecution appeal against a terminating ruling. The report refers to "Last year three judges, asked to review the evidence at the Court Martial Appeal Court in London, branded the case 'unfortunate' saying it was a 'large hammer (to deal) with a relatively minor matter'." Interestingly, it does not mention that the Court of Appeal dismissed the prosecutor's appeal. Further, the case was prosecuted by civilian counsel who would have independently advised. So, as I mentioned, before an informed view can be taken one really needs to hear more about the evidence that supported the decision to prosecute and the progress of the case. As you know, because of the increased pressure it places upon the court's time, prosecutors do not appeal terminating rulings without good reason.     Aspals  
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26 April: Good to see a sensible decision from the courts over the corporal who defended himself against the Taliban. What a waste of time that case was.
   Baz 
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26 April: brillian decision by the judge advocate. even the victim didnt want the case to go ahead.
   pete 
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I think we need to hear a little more about the circumstances before rushing to judgment on this decision to prosecute. From my experience, having seen in the past how certain parts of the press report cases about servicemen put on trial for prisoner abuse, I would treat their views with some caution. Even when subsequent events prove them wrong, newspapers seldom apologise for running an inaccurate and sensationalist story.    Aspals  
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23 April: A comment on Aspals and Tess point. Countries cannot stand by idly watching while the Libyans lynch Saif Gaddafi. Without outside help the rebels would have been defeated. Thankfully they were not. Now the same countries that helped create the new Libya have to put pressure on the government there to hand him over to the ICC.
   Briony 
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23 April: the un cocked up libya so now they need to cover up the mistakes. letting the libyans kill gaddafi does us all a favour. no embarassin revelations
   pete 
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22 April: The ICC agreement to the death penalty for Gaddafi is disgusting. It goes against the grain of the UN moratorium on the death penalty. On 15 November 2007, the Third Committee of the United Nations 62nd General Assembly voted 99 to 52, with 33 abstentions, in favour of a resolution calling for a global moratorium on capital punishment. This has been supported in subsequently votes and a further vote is due this year.
I would point out that the ICC took a different view in the case of Kenya a country with an established government and judiciary, and decided against the Kenyan Government challenge to the admissibility of two cases, seeking to invoke the ICC principle of complementarity. The Kenyan Government failed to take proper action against individuals so the ICC stepped in.
   Briony 
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22 April: If the ICC does allow Saif Gaddafi to be tried in Libya, where there is the possibility of the death penalty, something the High Commissioner for Human Rights is opposed to will be imposed on him. In 1989 the international community adopted the Second Optional Protocol to the International Covenant on Civil and Political Rights aimed at abolishing the death penalty and clearly recognising the need to eliminate the use of capital punishment throughout the world. But before we get to the sentence, there must be a real concern that the defendant will not get a fair trial. There is evidence he has been tortured in captivity, that the government does not exercise sufficient control over territory outside the capital and that the power of local militias is significant and may hamper investigation. This means the complementarity principle can't be fully implemented and that the ICC should prosecute Saif Gaddafi to ensure he gets a fair trial. If they don't do this then the ICC is in serious danger of losing credibility.
   Tess 
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I am in total agreement with you, Tess. The ICC is supposed to be the court of last resort, allowing national courts to try their own nationals for international crimes."The reason this principle came into existence was the fear on the part of many prospective States party that the ICC would become a supra-national criminal court and would result in countries losing domestic control of criminal prosecutions." (Compare the situation with the European Human Rights Court). In August 2011. The ICC Review Conference adopted resolution RC/1, "Complementarity", recognising national responsibilities to investigate and prosecute the most serious crimes of international concern. But this only works in countries that have a joined up and effective legal system. The Libyan government hasn't even been able to secure the release of Saif Gaddafi into their own custody from the custody of rebels holding him. Indeed, Libya has the appearance of a state in name only. The fate of Gaddafi junior does, as Thinners says, seem to be a foregone conclusion.     Aspals  
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22 April: Just to check you are taking the p*** arent you Thinners.
Great to see that we are consistent in our treatment of dictaorships and human rights abusers by cosying up to the Bahrain goverment even while they are mistreating there protesters. Seems like humanitarian intervention only goes for those dictators you dont like.
   Pongo 
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20 April: Nato did a great job in Libya and one we can feel proud of for taking a leading part in, by removing a brutal but stable dictatorship and replacing it with a brutal but unstable "democracy" with deep tribal divisions and a probable breakup of the country into separate autonomous regions. It is a real success story. The ICC response shows that the Libyan government, if you can call it that, really has no control over the mobsters holding Gaddafi who don't want to hand him over and want to put him on trial and kill him. All in the name of democracy. Whatever the evidence against him the fact that the case will be heard in Libya means the result is a forgone conclusion.
   Thinners 
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19 April: The ICC retreat from its earlier stance is regrettable and, even more so, its purported acceptance of the death penalty for Saif Gaddafi, if found guilty. This has all the signs of turning into a show trial, given a veneer of respectability by the ICC. Personally, I think it is hugely damaging. Why? Because Libya does not have an effective government nor an effective legal system. The government rules Tripoli. Erstwhile rebel forces (including those holding Saif) are not towing their line. So, the applicability of the rule of law, and to what extent, is questionable. More than 6 months after the ghastly murders of Colonel Gaddafi and his son Muatassim, there is still no news of an investigation or prosecution to bring the perpetrators to justice. It does not instil much confidence that the Libyan government has the authority, the will, or the capability to do so. So what confidence is there that Saif Gaddafi will receive a fair trial? The government did not ensure he was not abused in detention. Indeed, torture is as commonplace now as it was during the Gaddafi years. If the UN is to be seen as being consistent, it must re-state its concern about human rights abuses and demand the handing over of Saif to the Hague. Amnesty today is reported as expressing concerns over the torture of a Tawerghan man. "Amnesty has documented more than a dozen deaths in custody at the hands of armed militias since last September, amid widespread torture of suspected al-Gaddafi loyalists and soldiers." (added 20 Apr).
Anthony   Aspals Consultancy
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18 April: Anthony mentioned the ICC and it wanting to try Saif Gaddafi. It has backed away from that position and is apparently in agreement with the Libyans that they can try him under ICC supervision and even the existence of the death penalty on conviction is not something they have a problem with. So another show trial like Saddam Hussein and Saif, whatever his crimes, will join his dad and brother. Great thing international justice. Scratch that. Politics.
   Thinners 
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15 April: I share Briony's concerns about proper investigation by military police. The Court of Appeal made it quite clear that there was the appearance of bias and that undermined public confidence and made it look as if they were investigating themselves.
   Tess 
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15 April: Aw cmon Anthony. Since when has the press been independent? I thought it was understood that these days bbc stood for Biased Broadcasting Company. Does anyone really take the reports at face value. I don't. I'm pretty sure a lot of people feel the same way and don't trust any of them. In all my years of service I dont recall many stories that faithfully followed to real events. There were one or two exceptions but most just wanted a good story. I do happen to agree about the Turks. It's pretty daft to make threats to involve the whole of NATO just for the sake of a cross border shoot out between rival Syrian groups that doesn't involve the Turks. If Anthony is right about the motive to get round the UN, and it does look plausible, the yanks want to rein in the Turks pretty sharpish.
   Pongo 
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14 April: Last November and August, when discussing the crisis in Syria, I voiced serious concerns about attempts to subvert the legal mechanisms of the UN Security Council through the subterfuge of the NATO Treaty, with the US using Turkey as its proxy, and that Turkey was also using the Treaty as a means of asserting its regional influence. These would be very dangerous moves, especially at a time when the fledgling peace agreement brokered by Mr Anan is barely days old. The latest Turkish rhetoric is de-stabilising and dangerous. Whether the US is party to the present threat is yet to be seen. The press also plays its part in fanning the flames because, as I read events, there is no desire to look below the surface of some accounts received from rebel groups. For example, a story unfolds that shots are fired into a refugee camp and people are killed. There does not appear to be any inquiry into why those shots were fired - was it to return fire from armed groups in the camp or was it unprovoked? Similarly, reports of shelling never explore the reasons why, yet the same TV report will show armed rebels on the street firing their weapons. Who at, I wonder. I am not justifying disproportionate force, but merely pointing out that sometimes the headline is governed by the particular political leanings of the media. Is that what balanced journalism is about these days? It is dangerous stuff, because it is propaganda that influences those who watch it or read it. In the present climate, no one would perhaps be interested in the stories of Syrian soldiers wounded or killed by rebels. Their story is not newsworthy nor does it fit with the government's stance.
The criticisms of dictatorial regimes in the Middle East and Africa are very selectively employed by governments, ours included. We were quite content one minute to cosy up to Gaddafi (as we do with other ruthless regimes in Africa and the Middle East), bring him in from the cold, with apparent knowledge of rendition flights to his country for the purpose of torture (which, of course, we oppose and criticised Gaddafi for), and take the moral high ground the next. NATO did not stop the torture or genocide that Gaddafi's regime was accused of (see what has happened to the Tawerghans by "liberated" Libyans) and, if anything, has made tribal divisions even greater. At the same time, the new Libya ignores the will of the ICC and those holding Saif Gaddafi, who are seemingly autonomous from the government in Tripoli (another NATO legacy), mistreat him and refuse to hand him over to the Court. Moreover, the government has failed to investigate the summary and brutal killings of Saif's father and brother, both serious criminal acts. If there is any lesson at all to be learned from NATO's so-called victory in Libya, seeing the legacy of chaos and torture that has resulted from it, it is that we should not meddle in other people's internal affairs. As I have also said, the other grave consequence of NATO's excesses has been the body blow (possibly knock-out punch) to R2P. In a sense, this may have done us all a favour by preventing any further folly in Syria.
The final thing I would say is that threatening to take dictatorial leaders to the ICC to face crimes against humanity may not be the best way to bring about an early peace or transition of power. It is why we still have people like Robert Mugabe in power, in Zimbabwe, and I suspect why Assad will not go quietly. Which means more people may die. I have called it a perennial dilemma: do we let a bad man go free, to save more lives, or insist upon removing him by force and see the fighting and dying continue, or even escalate? One can understand why victims would want the UN to choose the first option but is it, pragmatically, the best in the long run? Of course, the ICC needs to play its part in this too. The problem is that to forebear from prosecution in such circumstances would be a contradiction of its raison d'être and open it to criticism that it was superfluous, which it is not. But rigidly prosecuting every dictator is not desirable either. It could make the situation much worse by prolonging the fighting - as we saw with Gaddafi.
Anthony   [updated, 19.00hrs]Aspals Consultancy
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13 April: Briony military police investigations are not independent and arent compliant. That's according to the appeal court. The IHAT got rid of them.
   Thinners 
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Thinners, thank you for reminding us of this. I found an article in the Independent for 26th March, which I am now adding to the News page for that month. The Court of Appeal said the investigations by IHAT were not article 3 compliant (the IHAT was looking into allegations of torture and ill treatment). The RMP were substituted in the investigation by the RN police. This serves to remind us of the Findlay argument of appearances and public confidence in what is being done. The court's concern was on the "public perception" of the possibility of bias. RMP should be separate from the chain of command.     Aspals  
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12 April: This is a reply to Pegasus's comment. I mean that if the investigation complies with the requirements of article 2 then the trial should be heard in open court. If the investigation is not art 2 compliant then it should not even get to court. The concern is that there are far too many serious cases being dealt with by commanders. If it is true who is giving them this authority? I thought the new forces act was supposed to stop serious cases being dealt with by commanders.
   Briony 
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5 April: Does Briony mean that an investigation is not compliant if the subsequent case is heard in camera? Surely not.
   Pegasus 
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2 April: Tess articulates my exact concerns.If the investigaitons were article 2 compliant then why the secrecy?
   Briony 
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31 March: In reply to Aspals. Secrecy is what makes the whole thing so suspicious. Why did the Guardian have to invoke the FOI Act to obtain information? There should be explanations freely available when Cos punish soldiers when at war. I am not meaning the run of the mill cases. If thees are cases that are referred back to the CO by the prosecutors it should be relatively easy to identify them. If there are security concerns then just don't publish the names.
   Tess 
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30 March: I agree with Tess that it is quite shocking serious cases are hidden from public view. It does shake one's confidence in the whole system. If the rights act applies to the army then why aren't there article 2 investigations into killings?
   Briony 
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But who says there aren't any article 2 compliant investigations? In serious cases, there is a legal requirement under the AFA 2006 to investigate and for referral to the independent Service Prosecuting Authority for a decision on whether to prosecute. That decision is taken after applying the Service Prosecutor's test. The option for a CO to deal summarily is much more restricted than before the 2006 Act. It may well be the case that charges have been referred to him for summary hearing by the SPA.     Aspals  
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30 March: aspals a federal solution to libya will lead to partition. they need strong leadership. on the afghan court martial comments by tess the military cant go round publishing soldiers names cos of security. the report does say they have been punished by the cos.
   pete 
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30 March: The shocking news of 126 incidents involving British forces with Afghan victims is bad enough but the even more disturbing thing about it is the secrecy of it all. Who has heard of the court martial referred to in the Guardian article. Why have most of these cases been dealt with by commanding officers. There is a lack of consistency. Aspals reports an officer and sergeant prosecuted for assaulting a detainee, yet the Guardian reveals another case where the CO dealt with a similar though more severe offence where a soldier beat his prisoner unconscious for not answering questions. Other cases are of shootings and deaths resulting are dealt with in-house by officers.
Has anyone in the army heard of article 2 of the ECHR or do they think they are above the law. PIL need to get involved on behalf of the families of victims and find out the truth. I am appalled the military system can survive and still expect to be looked on as credible. Its secretiveness is comparable to the SIAC but at least SIAC proceedings get reported.
   Tess 
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Thank you for these links, Tess. They have also been tweeted.     Aspals  
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30 March: You might be interested in the story about Nato allegedly ignoring the refusgees fleeing Libya. Now the Spanish are saying Nato has to prove that they passed on a distress call to a Spanish ship. The Spanish deny it. It will be interesting to see if Nato is lying about it. If it is, it throws a shadow over its credibility in the bombing and its denial of bias and part in the war as the rebel air force.
   Will   [Link added, Ed]
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29 March: Reply to Pete's comment. Cammoron never cared about Libya after the bombing. He just wanted his moment of glory which was easy as Liby is a tiny country and didn't have much of an army, airforce or navy. Mind you, it still took them 6 months of intense bombing and special forces ops to get rid of the madman. Having said that, I take my hat off to him for keeping the nutters we now see killing each other all under control. May be he wasn't so mad after all.
   Thinners 
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28 March: in libya the killing goes on. we swapped one tyrant for several uncontrolled ones under a token government that even the west is failing to prop up.
   pete 
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I have just (at 18.00hrs) posted an article to the Newspage, from the Guardian Comment Section. In view of the lack of control over militias and to ensure that Tripoli remains weak, it proposes a federal solution.     Aspals  
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28 March: Today's news is that there is a chance for peace in Syria. I would only say that if there have been failures in the past then we have to learn from them, but past failures shouldn't stop us from doing what is right.
   Briony 
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26 March: No government seems to learn the lessons of what comes next. Look at the mess we left in Iraq and Libya which was hailed as a great success. The truth is there isn't the stomach for a major war with Syria, thank God. But I agree with Thinners that we shouldn't be expected to pitch in every time rebels take issue with their governments. After all, the Geneva conventions do allow governments to defend themselves against usurpers.
   Scipio 
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26 March: well said thinners
   pete 
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25 March: we didnt stand up for the jews did we. we watched them being chased out of germany to evry corner of the earth.
   pete 
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25 March: To come back on Briony's post. The situation with Nazi Germany was different. While the Jews were persecuted in the 30s, it was not until the early 40s that the genocidal killings took place when the war had been underway for 3 years. I do not support genocide, if that needs to be said. Nor do I support people poking there noses in everytime some bunch of radicals decides to challenge the government, takes up arms and then starts screaming for help when it takes a predictable beating. As a kid I was taught not to start something you couldn't finish.
   Thinners 
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25 March: Briony does make a good point. Unfortunately, the only legal way we can intervene in Syria is if it is authorised by the UN security council. We know that isn't going to happen because both Russia and China have vetoed two attempts to pass a resolution there. But it is a brake on the hawkish nations who want to leap in feet first without understanding the complexities on the ground and more importantly what comes next when the fighting is done.
   Pegasus 
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24 March: Thinners asks who we help. We help the people who are suffering in the fighting by bringing in aid and medical help. I don't see why we should worry about anyone agreeing to let us do that. I think that we should side with the rebels against despotic regimes that oppress their people. To take Thinner's point we would not have sttod up to Nazi persecution of the Jews in the second world war.
   Briony 
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24 March: I tend to agree with Briony that there is a lot happening in Syria, but I understand the points about reasons why it is difficult to interfere.
I do not however agree with the views on the military system. A criminal case is a criminal case, and wherever it is prosecuted the law is the same with the same burden and standard of proof. So a CPS prosecutor could do that without difficulty. The military offences tend to be rather minor stuff and, as would be a lost less difficult than prosecuting ASBOs and RTA offences in the Mags. The law is not that complicated. After all, if someone goes awol it doesn't sound like it takes a lot to prove the offence.
   Tess 
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23 March: Replying to Briony, who do we help? Who are the rebels? Which faction? Crimes have been committed on both sides, with torture of soldiers by rebels. Why should we support every disaffected bunch that decides it wants to overthrow its government? We really made little difference in Libya just swapping one set of bullies for several others headed by a token government. Can we say we're surprised when ruthless governments crack down and preserve the status quo. Would our government roll over and make way for a bunch of disatisfied "rebels"? You bet they wouldn't they would use force to preserve order, whether the sent in armed police or the army. These so called rebels in Syria pick a fight then expect others to pitch in and fight it for them. We've had enough of meddling in other peoples affairs.
   Thinners 
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23 March: There is nothing going on in Syria? How about crimes against humanity for starters? It is an absolute disgrace that we are not doing mor eto help those people.
   Briony 
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23 March: Nothing is happening in Syria Tess that involves us so I suppose that is why no one is talking about it. Just to comment on your view of the prosecutors, I hope we hang on to them. Far better to have a prosecutor in uniform who knows a bit about service life than one who hasn't got a clue. Any way, would the civvies really want to do the job?
   Pegasus 
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21 March: I'm surprised that there isn't more said by the military bloggers about Syria on this board.
Back on the theme of the doomed military system it was reported that the CPS is now taking on prosecutions for the DWP. On top of its responsibility for HM Revenue prosecutions, which it has had since January 2010, CPS keeps expanding its reach. How much longer can the military prosecutors remain an exclusive club? They don't handle cases that are as complicated as the high level crime the CPS does. The clock must be ticking.
   Tess 
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11 March: It's great to see the sounding board active again after such a long time. I think Pete makes a really good point. The failures of recent military options and the general structuring of our armed forces is an example of how clueless are our political leadership and the civil service that gives it advice. We could learn a thing or two from the early Roman emperors who had a successful military career behind them before wearing the purple.
   Scipio 
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9 March: great strategy by the chinles wonders to announce a withdrawal to the enemy. so what are our guys fighting and dying for.
   pete 
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18 January: it dont matter how you dress it up the european human rights court has made fools of us and is hell bent on humiliating our country.
   pete 
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17 January: I understand what Aspals is saying but the point is that the court keeps making it more difficult for us to get rid of terrorists. Now we've got assurances that he wont be tortured they say that we still cant chuck him out because he wont get a fair trial in his own country. When will they stop making it up as they go along.
   Thinners 
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I agree that the court's decision makes the task of expelling dangerous undesirables more difficult, but the latest requirement (the home nation's courts should not use evidence obtained by torture) is not an insuperable one. After all, if an agreement can be reached that the home nation
(a) shall not torture the individual and
(b) if he is found guilty at his trial shall not execute him,
it seems that an agreement on excluding at his trial evidence based on torture is achievable too.     Aspals  
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17 January: european judges overruling british courts now theres a thing. my advice, just ignore them.
   pete 
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17 January: That's right, the decisions are taken on what is the best course for the company/employer. It is a business decision.
   Briony 
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17 January: So we cannot get rid of Al Qatadar because the european court says so. I hope the government puts in an appeal or just ignores the decisionl Our safety is the most important thing. We should send him back to where he comes from and let them try him
.   Thinners 
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I think that the press reports on the case are a little misleading. While it is true that al Qatada cannot be extradited it is not because of distrust of the assurances given by Jordan that he wouldn't be tortured or treated poorly, it was because the court was not satisfied that Jordan would not use evidence against him obtained by torture. They in fact said unanimously, that, if he were deported to Jordan: There would be no violation of Article 3 (prohibition of torture or inhuman or degrading treatment) of the European Convention on Human Rights; and no violation of Article 5 (right to liberty and security) of the Convention. The violation that they sustained was his right to a fair trial under article 6. May be the decision isn't so bad after all. Perhaps if the Jordanians give an assurance that they will not use evidence against him which was obtained by torture, that might pave the way to his extradition. The other assurances were accepted by the court.     Aspals  
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17 January: So the merits of the case have no bearing then, Briony? Accusers win the day every time. Mad.
   Scipio 
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17 January: Happy new year to everyone. In answer to Pete and Scipio, out of court settlements happen all the time in employment cases. It is unfortunately true that it is quite often much cheaper to settle than to let the case go to a hearing. Settling is advised too when there is a concern that sensitive industrial information might be revealed, so a confidentiality clause is inserted into the settlement part of the draft judgment.
   Briony 
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16 January: (reply to Pete). It is nothing new. Why run the risk of upsetting allies when we know that if a case goes to court the judges will order disclosure of just about anything. Secrets are no longer secret, according to the HR lawyers. I think the SIS is quite right to protect our sensitive information and agency contacts by buying off the claimants, even if we think they really are nasty pieces of work. It's a crazy world but that's what the human rights lobbyists have made it. Commit a really serious act against this country, fail to give an explanation of your conduct, and then claim your human rights were abused. I agree with Pete's sentiments. It really is a daft state of affairs to do this when there is no case to answer against state agents.
   Scipio 
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13 January: Maybe the reasons they paid the compensation is that the govt or intel people thought they might lose the case.
   Thinners 
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13 January: if the police cant prosecute sis of torture of two men who said they did it why did we pay them millions in compensation.
   pete 
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It is an interesting question as the evidential sufficiency test applied for a prosecution (is there a realistic prospect of conviction and, if so, is it in the public interest to prosecute) is similar to the test applied in a civil court to establish civil liability (the balance of probabilities). I suspect that paying them money was considered to be a better option than running the risk of the courts ordering further disclosures of sensitive information which might have further damaged relations with allied intelligence agencies. Alternatively, it actually might have been a cheaper option than having a court case with its associated costs.     Aspals  
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4 January: The idea of a civilian head running the prosecutors is good news but it still doesn't go far enough to dispel an appearance of the military legal prosecution system as anything other than an old boys club dealing in house. The public just can't have any confidence in a process that is shrouded in secrecy when it deals with really serious criminal offences. I think that whatever anyone else says, its days are numbered and I wonder if it will survive the PIL onslaught of cases. I met someone the other day who was CPS with military experience, I think he was forces legal. He told me that there is a TA for the army lawyers. In other words, there is a pool of prosecutors within CPS that already has military experience. Like anything, once you've done a few cases and become conversant with the system, it becomes straightforward. I suppose that once the CPS takes it over a lot of the military rules will be replaced by the criminal procedure rules, with one or two changes made to accommodate forces life, such as tours overseas or war deployments.
   Tess 
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I linked this to Pete's comment of 23 Dec, as this is what I presume you were referring to. Can I please gently remind contributors to reference the post to which they are replying/commenting? Thank you.      Aspals 
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