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Paper 13
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Return to contents list of L.I.S.G. Dossier "The Case Against War" PAPER 13. Letter from Public Interest Lawyers to Defence Secretary Geoff Hoon, 22 January 2003 The Right Honourable Geoffrey Hoon MP The Secretary of State for Defence, Ministry Of Defence Whitehall, London SW1A 2HB 2 January 2003 Your ref: Our ref: PS/SA/ Dear Sir, PROPOSED USE OF FORCE AGAINST IRAQ – ISSUES OF INTERNATIONAL HUMANITARIAN LAW AND "WAR CRIMES" We are acting for Mark Thomas, The Campaign for Nuclear Disarmament ( CND ) and other non-governmental organisations (NGOs).[1] We are asked to write to you to put you on notice as to the consequences of any decisions by the UK Government to use further force against Iraq[2] involving methods of attack or weapon systems that breach rules of international humanitarian law (IHL).[3] Specifically we make clear that if the UK acts so as to bring any breaches of IHL within the definition of "war crimes" we, and other, will take steps to ensure that you, and other leaders of the UK Government, are held accountable within international criminal law. Summary The purpose of this letter is to put the UK Government on notice as to the position if requirements of IHL are breached in the forthcoming war. From the outset of the use of force various NGOs working in the field will be collecting evidence as to whether the use of force against Iraq adheres to the fundamental requirements of the international humanitarian law, in particular to the principles of distinction, military necessity and proportionality. In analysing this evidence, our clients will seek to determine whether the force used provides evidence of crimes against humanity and war crimes in violation of international criminal law, specifically, Articles 7 and 8 of the International Criminal Court Statute (the ICC Statute) and sections 50 and 51 and schedule 8 of the International Criminal Court Act 2001. In due course, either before the end of the use of force or shortly after its end, NGOs’ written and oral evidence will be presented to a tribunal. The tribunal will be organised by the Permanent People’s Tribunal (PPT) based in Italy. Its panel will consist of eminent international lawyers and others experienced in this field. The panel will hear evidence from various NGOs and others as to whether requirements of IHL have been breached. If the panel finds that there have been breaches it will prepare a report giving its judgement. That judgement, and the supporting evidence of NGOs and others, will then be presented to the Prosecutor of the International Criminal Court (ICC). The Prosecutor will be urged to initiate investigations on his own initiative, on the basis of this report and evidence as he is empowered to do under Article 15 of the ICC Statute. Thereafter, those who have initiated this process including various NGOs will work with the Prosecutor as he analyses the seriousness of the information received and makes a decision as to whether or not there is a reasonable basis to proceed with an investigation (Articles 15 (2) and (3) of the ICC Statute). If there is, in the opinion of the tribunal, and the various NGOs a reasonable basis to proceed with an investigation we shall urge that this investigation proceed against yourself and other senior members of the UK Government responsible, at the highest level, for decisions as to how force is used against Iraq and its civilian population. It is our position that pursuant to Article 25 of the ICC Statute, you and other senior members of the UK Government will be responsible for any breaches of Articles 7 and 8 of the ICC Statute (defining "crimes against humanity" and "war crimes") notwithstanding the culpability of senior members of the armed forces. Thus we urge that you proceed in any forthcoming war with Iraq on the basis that if there are breaches by the UK Government of IHL you will at least be investigated by the Prosecutor and could likely face prosecution. Accordingly you should ensure that the use of force against Iraq complies with IHL and the principles of distinction, necessity, proportionality and humanity. "Crime of Agression" and "Crimes against Peace" We wish to raise with you at the outset of this letter our clients’ concerns that the UK Government (and its leaders) are about to use force in circumstances where a "crime of aggression" is being committed and, thus, a "crime against peace." Our reasoning on this is as follows:
"To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace." Article 2 states
"For the purpose of the present Statute, a person commits a "crime of aggression" when, being in a position effectively to exercise control over or to direct the political or military action of a State, that person intentionally and knowingly orders or participates actively in the planning, preparation, initiation or execution of an act of aggression which, by its character, gravity and scale, constitutes a flagrant violation of the Charter of the United Nations."
It is the widely held view of legal experts in the field that in the absence of the inherent right arising to take action in self-defence under Article 51 of the UN Charter, any military action taken by the United Kingdom against Iraq without a United Nations Security Council Resolution expressly authorising such force would be in clear violation of the UN Charter and international law[5]. Background to our clients’ concerns Our clients’ concerns are that, based on evidence of the use of armed force in the Gulf War in 1991, in Kosovo and in Afghanistan the US and the UK have clearly breached fundamental requirements of IHL in the past. Thus there is every reason to believe that these requirements will be breached again in any forthcoming war in Iraq. You are better placed than ourselves or the various NGOs that we represent to know the detail of the impacts of the use of force in the Gulf, Kosovo and, more recently, Afghanistan. You will, of course, appreciate that these three recent examples all pre-date July 2002 when the ICC came into being and that its jurisdiction over these matters requires now a fundamentally different approach by the UK. However, our clients’ concerns include the following: ILLEGITIMATE MEANS AND METHODS OF ATTACK
ATTACKS ON OBJECTS DEDICATED TO CIVILIAN PURPOSES
DESTRUCTION OF IRAQI INFRASTRUCTURE
CIVILIAN LOSSES IN AFGHANISTAN
CIVILIAN LOSSES DURING NATO AIR STRIKES IN KOSOVO
The information that leads us to these conclusion includes:
We should make clear that our clients’ main concerns are the civilian casualties caused by indiscriminate and/or disproportionate attacks. Further our clients are extremely concerned about the consequent civilian casualties caused by attacks on the economic infrastructure of Iraq as happened in the 1991 Gulf War. To add to our clients’ concerns the following are noted:
Nuclear Weapons We note that the US Nuclear Posture Review (NPR) submitted to Congress on 31 December 2001[7] makes clear that the United States continues to plan for massive retaliation or a pre-emptive counter force attack in response to an actual or imminent nuclear attack, and for use of nuclear weapons against an overwhelming conventional attack. Much concern has been expressed about the US’s willingness to contemplate a "first strike" against non-nuclear weapons states and particularly those characterised as "rogue states." You have made clear to both the UK House of Commons Defence Committee and to the Jonathan Dimbleby programme on BBC TV that the UK also might under certain circumstances be willing to engage in a "first strike" use of nuclear weapons against a non-nuclear weapon state, namely Iraq. [8] This policy represents a fundamental breach of customary international law and particularly in the light of the International Court of Justice’s Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons.[9] That opinion concludes at paragraph 105E: "E. By seven votes to seven, by the president’s casting vote, It follows in the above-mentioned requirements that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law; However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a state would be at stake…." It is clear that the threat to use chemical or biological weapons against UK deployed forces in the filed is far short of a threat such that "the very survival" of the UK "is at stake." As such if the UK were to carry out the threat you have made to use nuclear weapons against Iraq in these circumstances it would be in clear breach of customary international law. Other Weapons Systems We know that in the Gulf War conflict from 1991, in Kosovo and in Afghanistan the following weapons systems have been used:
Our client’s concerns include that these weapons systems, and the UK’s nuclear weapon system, all breach "intransgressible"[10] rules of IHL and in particular the rule on discrimination (Articles 48 and 51 (4) and (5) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflict (Protocol 1) adopted at Geneva, 8 June 1977 (hereafter referred to as AP1)). Relevant provisions of International Humanitarian Law The above noted incidents are all examples of where the use of force failed to comply with fundamental principles of IHL, in particular the conventional and customary rules of distinction, military necessity and proportionality. You will be aware that failure to comply with these principles constitute grave breaches of the Geneva Conventions and will amount to violations of articles 7 and 8 of the ICC. Art 35. Basic Rules
Art 48. Basic Rule In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations against military objectives. Art 49. Definition of attack and scope of application 1. "Attacks" means acts of violence against the adversary, whether in offence or defence. Art 51. Protection of the civilian population
5. Among others, the following types of attacks are to be considered as indiscriminate:
and
…………… Art 52. General protection of civilian objects
Art 54. Protection of objects indispensable to the survival of the civilian population 1. ………...
..………. Art 55. Protection of the natural environment
…….…… Art 56. Protection of works and installations containing dangerous forces
..………… Art 57. Precautions in attack
(a) those who plan or decide upon an attack shall:
……..…… Art 59. Non-defended localities
……..…… Art 85. Repression of breaches of this Protocol …………
………………… Specific Notice of Prohibition Under IHL of Certain Modes of Attack and Weapon Systems Bearing in mind the above concerns our clients have emerging from the 1991 Gulf War and the use of force in Kosovo and Afghanistan, and in the light of the relevant provisions of ICC and IHL our clients wish to make clear that you are on notice that the following modes of attack or weapons systems are prohibited by IHL and if used will be the subject of evidence and a People’s Tribunal report to the prosecutor of the Hague:
This list of five summarises the specific concerns arising from the 1991 Gulf War and the use of force in Kosovo. However it is without prejudice to our client’s right to add to this list for any reason, for example, once the facts surrounding the use of force are known. As far as weapons are concerned these are of particular concern to our clients particularly given the indiscriminate nature of weapon systems in the possession of both the US and the UK, and of those used in the 1991 Gulf War. As the International Court of Justice has noted in its Advisory Opinion on The Legality of The Threat or Use of Nuclear Weapons: "states do not have unlimited freedom of choice of means in the weapons they use." (Para 78). Thus our clients assert that the indiscriminate weapons we refer to above at 3 are prohibited by the rule of discrimination which the ICJ described in the Advisory Opinion on nuclear weapons as being an "intrasgressible rule." As the ICJ says in its Advisory Opinion on nuclear weapons: "States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets." (Para 78) The issue as to whether the UK has participated in the use of force against Iraq involving non-discriminatory weapon systems will assume critical importance in the tribunal we refer to above in the event of there being evidence of innocent civilian casualties due to attacks by indiscriminate weapon systems.
Relevant Provisions of International Criminal law The following provisions of the Rome Statute creating the International Criminal Court (the ICC Statute) are relevant. Article 7 Crimes against humanity
2. For the purpose of paragraph 1:
Article 8 War crimes
Article 15 Prosecutor
In terms of the specific concerns our clients have about modes of attack or weapons used itemised below at this stage we do not need to identify which specific provisions of Articles 7 and 8 (and the relevant Elements of Crime) cover the potential use of force against Iraq. For obvious reasons we cannot identify the relevant provisions prior to the facts emerging surrounding any use of force against Iraq. However the extracts from Articles 7 and 8 referred to above in our view cover the concerns outlined above from the 1991 Gulf War and the use of force in Kosovo. As you know it is our clients’ concern now that these methods of attack and use of weapons will be repeated. For the above mentioned crimes defined in Articles 7 and 8 we suggest that you read the elements of crime adopted by the Preparatory Commission for the International Criminal Court (PCNICC). These are self-explanatory and should make clear why it is our view that these are relevant in the above context. The crime defined by Article 8 (2)(b)(iv) if the ICC Statute is particularly relevant. It is noted that the actus reus of this offence is the launching of an attack to cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term, and severe damage to the natural environment in violation of the principles of necessity and proportionality.[13] The PCNICC have made clear that this crime "reflects the proportionality requirement inherent in determining the legality of any military activity undertaken in the context of an armed conflict" (document PCNICC/1999/WGEC/INF.2/ADD1, at 37-8). As it is our submission that Article 8(2)(b)(iv) is particularly relevant we think it helpful to draw your specific attention to the relevant Elements of Crime which read as follows: "ARTICLE 8(2)(b)(iv) War crime of excessive incidental death, injury or damage Elements
(36). The expression "concrete and direct overall military advantage" refers to a military advantage that is foreseeable by the perpetrator at the relevant time. Such advantage may or may not be temporally or geographically related to the object of the attack. The fact that this crime admits the possibility of lawful incidental injury and collateral damage does not in any way justify any violation of the law applicable in armed conflict. It does not address justifications for war or other rules related to jus ad bellum. It reflects the proportionality requirement inherent in determining the legality of any military activity undertaken in the context of an armed conflict. (37). As opposed to the general rule set forth in paragraph 4 of the General Introduction, this knowledge element requires that the perpetrator make the value judgement as described therein. An evaluation of that value judgement must be based on the requisite information available to the perpetrator at the time." Kittichaisare notes as follows: "In terms of the perpetrator’s mens rea, the Elements depart from the general rule that it is not necessary for the perpetrator to have personally completed a particular value judgement. To be guilty of this war crime, the perpetrator must have known, in the sense of making the value judgement that the attack launched by him would cause incidental death or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment and that such death, injury or damage would be of such an extent as to be clearly excessive in relation to the concrete and direct overall military advantage anticipated. However, an evaluation of that value judgement must be based on the requisite information available to the perpetrator at the time. It should be noted that there is no result requirement as part of the actus reus of this war crime. What is required is the act of launching the attack of the nature and with the perpetrator’s state of mind as described above." (Kriangsak Kittichaisare, International Criminal Law, Oxford University Press, 2001, at 164). The NGOs that we represent and the subsequent tribunal we refer to above will be examining the two elements of this crime with great care. In particular the state of mind of yourself and other senior members of the UK Government will be judged in the light of the fact that this letter puts you on clear notice as to the requirements of IHL and the risk, that you may choose to ignore, of an investigation by the prosecutor if the use of force comes within the definitions of Articles 7 and 8 above. Complicity We now address the personal culpability of you as the UK’s Secretary of State for Defence and other senior members of the UK Government in terms of complicity. In the 1991 Gulf War the US was the main participant but the UK provided active support and participated in some of the bombing raids. It might be thought that you and other members of the UK Government can escape responsibility for breaches of Articles 7 and 8 of the ICC Statute if the UK Government does no more than support a US led campaign. As we make clear below the ICC Statute and international criminal law establishes that in these circumstances you, and other senior members of the UK Government, may be held criminally liable for your participation in the commission of these offences. Article 25 of the ICC Statute is relevant. It reads: "Individual criminal responsibility
…………… Thus the ICC Statute recognises that in these circumstances you, and other members of the UK Government, may be an "accessory" or "secondary participant" in "complicity." Complicity is when two or more persons join together to play some part in the commission of a crime. Ordering, soliciting or inducing the commission of a crime as provided in Article 25 (3)(b) of the ICC Statute is no different from direct physical perpetration of the crime. As Lord Steyn put it in Pinochet, "there is no distinction between the man who strikes, and the man who orders another to strike." (R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte [1998] 4 ALL ER 897, HL at 946). The law of complicity is re-stated in the Ministries case that "he who participates [in a crime] or plays a consenting part therein" is guilty of a crime (US v Ernst von Weizsacker et al., TWC, 611, 470-1). In Tadic the International Criminal Tribunal for former Yugoslavia (ICTY) Appeals Chamber itself re-states the law as follows: "whoever contributes to the commission of crimes by the group of persons or some members of the group, in execution of a common purpose, may be held to be criminally liable, subject to certain conditions..…" ( Prosecutor v Dusko Tadic, case no. IT-94-1-A, ICTY APP.CH., 5 July 1999 at para 190. ) In the light of the above it is clear that the complicity of you, or other senior members of the UK Government, is as relevant for the purposes of potential breaches of Article 7 and 8 of the ICC Statute as if you were the main perpetrator. You should proceed accordingly. Grave or Serious Breaches You will be aware that Article 8 (2) of the ICC Statute deals with grave breaches of the 1949 Geneva Conventions of 12 August 1949. "Grave breaches" are serious war crimes that are subject to the universal jurisdiction of all states.[14] Moreover, if a state does not prosecute the offender it shall extradite him to any party to the respective Geneva Conventions that will prosecute and punish that person. Grave breaches must be committed against persons or property protected by any of the four Geneva Conventions of 1949, in particular civilians in the hands of a party to a conflict of which they are not nationals. Since the four Geneva Conventions of 1949 are a part of customary international law, so is the grave breach regime under these Geneva Conventions. AP1 extends the definition of grave breaches. (See Articles 11, 44, 45, 73, 85(2) and (3)). Article 8(2)(b) deals with other serious violations of the laws and customs applicable in international armed conflict. "Serious" means breach of a rule protecting important values, and the breach must involve "grave consequences" for the victim. All serious war crimes under AP1 and the Hague regulations are proscribed as war crimes under Article 8 (2)(b) of the ICC Statute. Thus the concepts of "grave" and "serious" are relevant. We submit that in judging whether breaches are either "grave" or "serious" past breaches are relevant. Thus in deciding whether you, and other senior members of the UK Government, have been guilty of grave or serious breaches for the purposes of Article 8 we will invite the prosecutor, if in due course a report from the People’s Tribunal referred to above is made, to take into account the UK Government’s past misconduct during the 1991 Gulf War. Command Responsibility It is apposite, given your position within the Government, to address this question. Under the principle of command responsibility, a superior is criminally responsible for the acts committed by his subordinates if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. This command responsibility emanates from a failure to act in breach of a clear, affirmative duty or moral obligation imposed by the law of war or by international law upon those in authority to act. When the superior acts positively by ordering, instigating, or planning criminal acts carried out by his subordinates, he incurs "direct" responsibility. However, if he fails to take measures to prevent or repress his subordinates’ criminal act, his culpable omissions thereby incur "indirect" command responsibility. Where a superior fails to prevent or repress his subordinates’ criminal acts he could be held liable for aiding and abetting or inciting the crimes if all the necessary elements for aiding and abetting or incitement, as the case may be, are present. (Prosecutor v Tihomir Blaskic, case no. IT-95-14-T, T.Ch..1 of the ICTY, 3 March 2000. Paras 337-9). This principle is also applicable to civilian, non-military commanders, who wield the requisite authority. International instruments and case law do not restrict this application to military commanders only but extend it to cover political leaders and other civilian superiors in positions of authority (Celebici, paras 356-63; Prosecutor v Alfred Musema, case no.ICTR-96-13-T, 27 Jan 2000, paras 136, 146-8). The crucial question is not the civilian or military status of the superior , but the degree of authority the superior exercises over his subordinates. With the above principle of command responsibility in mind we consider it advisable that you copy this letter to those senior members of the UK Government who you know will be responsible for key decisions if the UK are to be involved with the use of force against Iraq.[15] Further, leaving aside the obvious requirement that you copy this letter to the senior members of the armed forces, we suggest that you copy this to those civilian superiors with the requisite degree of authority over their subordinates, who in accordance with the principle of command responsibility might be held liable if there are breaches of Article 7 and 8 of the ICC Statute. Finally we note that this principle has been transposed into UK law through Section 65 of the International Criminal Court Act 2001. Your Evidence If in due course it emerges that there is evidence of breaches of Articles 7 and 8 the tribunal we refer to above will sit in session to hear evidence from NGOs and others. Naturally you will be invited to submit your evidence to that tribunal on the issue of whether there have been breaches of Article 7 and 8. If in due course you decline to submit any evidence we will invite the prosecutor (if in due course a report from the tribunal is submitted to him), to draw such adverse inferences as may be appropriate. You are by this letter on notice of the intention to establish a People’s Tribunal on this matter. We submit that if in due course it is your case that there have not been breaches of Articles 7 and 8 of the ICC Statute, you are now in a position where you know that your evidence on that point is highly relevant. Thus, if in due course you fail, or refuse, to produce evidence to show your innocence (or that of other members of the UK Government) of breaches of Articles 7 and 8 of the ICC Statute, in our view this will be highly admissible to show your guilt. Conclusion We suggest that you note carefully the contents of this letter and as we have suggested above copy it to all who might subsequently be held responsible for a breach of Articles 7 and 8 of the ICC Statute. You are on clear notice of the intention to present evidence to the prosecutor if it emerges that there have been breaches of Articles 7 and 8. We have made clear above the relationship between the Tribunal we describe and the prosecutor in the Hague using his Article 15 powers. You are required, if the UK participate in the use of armed force against Iraq, to ensure that the use of force does not breach Articles 7 and 8. A failure to ensure compliance will lead to the consequences set out in this letter. Please acknowledge receipt of this letter within 14 days. Yours faithfully Public Interest Lawyers -------------------------------------------------------------------------------- [1] We will provide a full list of these NGOs on request. [2] We use the phrase "further force" deliberately as we note the continuing bombing raids to enforce the no-fly zones in Southern and Northern Iraq, that these have recently intensified, and that serious doubts exist among international lawyers as to their legality. [3] We assume from recent press reports that in due course the UK will participate in a US led campaign against Iraq. We do not, of course accept that the use of force meets with the requirements of jus ad bellum or that all "peaceful means" to resolve the dispute have been exhausted (see Art. 33 of UN Charter). [4] ICC-ASP/1/Res.1 [5] See Opinion of Professor Colin Warbrick, 30 October 2002, at www.matrixlaw.co.uk, and Opinion of Professor Vaughan Lowe of 19 December 2002 at http://www.bbc.co.uk/radio4/today/reports/ international/iraq_hearing.shtml; Opinion of Rabinder Singh QC and Alison Macdonald, 10 September 2002; Opinion of Rabinder Singh QC and Charlotte Kilroy, 15 November 2002. [6] In 1996 the UN Sub-Commision on the Promotion and Protection of Human Rights passed Resolution 96/16 which included weapons using depleted uranium as of "indiscriminate effect". [7] Nuclear Posture Review report on the web at www.globalsecurity.org/wmd/library/ policy/dod/ npr.htm [8] Your evidence to the House of Commons Defence Committee 20 March 2002 records "….there are clearly some states who would be deterred by the fact that the United Kingdom possess nuclear weapons and has the willingness and ability to use them in appropriate circumstances. States of concern, I would be much less confident about, and Saddam Hussein has demonstrated in the past his willingness to use chemical weapons against his own people. In those kinds of states the wishes, needs and interests of citizens are clearly much less regarded and we cannot rule out the possibility that such states might be willing to sacrifice their own people in order to make that kind of gesture… they (states of concern) can be absolutely confident that in the right conditions we would be willing to use our nuclear weapons." (Paras 236-237). On 24 March 2002 on the Jonathan Dimbleby programme on BBC you were asked whether nuclear use might be in response to non-nuclear weapons such as chemical or biological weapons and you replied: "Let me make it clear the long-standing British Government policy is that if our forces, if our people were threatened by weapons of mass destruction we would reserve the right to use appropriate proportionate responses which might….in extreme circumstances include the use of nuclear weapons. Later you were asked by the interviewer whether you would only use Britain’s nuclear weapons system after an attack by Saddam Hussein using weapons of mass destruction and you replied: "Clearly if there were strong evidence of an imminent attack, if we knew that an attack was about to occur we could use our weapons to protect against it." (Transcript from the Jonathan Dimbleby programme 24 March 2002). [9] ICT Advisory Opinion, 8 July 1996, International Law Reports, vol. 110, pp.227-267. [10] The International Court of Justice, in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (8 July 1996) refer to fundamental rules of international law, such as the rule of discrimination, as being "intransgressible" rules: para. 78 [11] We make clear that it is the indiscriminate nature of these weapons systems, such as to breach "intransgressible" rules of IHL, that is relevant. It is not our clients’ position that no particular weapons system, per se, is prohibited. In respect of Article 8 (2)(b)(xx) of the ICC Statute it is noted that the "comprehensive prohibition" and "annex to the ICC Statute" are not yet endorsed, and the Elements of Crime have not been drafted. However in respect of nuclear weapons, the threat or use of these must at all times (not withstanding the absence of a prohibition pursuant to article 8 (2)(b)(xx)) be consistent with the rules of proportionality and the "intransgressible" rules of IHL. As for cluster bombs we note that the chamber of the ICTY in the Martic rule 61 hearing stated "although there was not formal prohibition of the use of cluster bombs as such, the use of the Orkan rocket with a cluster bomb warhead in that case constituted evidence of the accused’s intent to deliberately attack the civilian population" (Kittichaisaree, ibid, p.181). [12] Kittichaisaree notes: "the actus reus of murder is the taking of the lives of persons taking no active part in hostilities in an internal armed conflict. The requisite mens rea is the intention to kill, or inflict serious injury in reckless disregard of human life. Recklessness means the taking of an excessive risk. ("Celebici" case, Case No. IT-96-21-T, ICTY T.Ch.ii quater, 16 Nov. 1998, paras 431,437-9) The specific elements of murder in this case are identical to murder as a crime against humanity, except for the context in which it takes place. The Elements of Crime adopted by the PCNICC thus provide in this case that the perpetrator must have killed one or more persons who are either hors de combat, or were civilians, medical personnel, or religious personnel taking no active part in the hostilities, including those non-confessional, non-combatant military personnel carrying out a similar function. The perpetrator must have been aware of the factual circumstances that established this status of such person or persons." (ibid. p195) [13] The International Court of Juctice’s advisory opinion on the legality of the threat or use of nuclear weapons, 8 July 1996, at paragraph 30 states: "….states must take environmental considerations into account when assessing what is necessary and proportionate in the pursuit of legitimate military objectives. Respect for the environment is one of the elements that go to assessing whether an action is in conformity with the principles of necessity and proportionality." [14] The concept of "Universal Jurisdiction" is important as it may be used in these circumstances by other states, who have ratified the Geneva Conventions, to demand that you, or other senior members of the UK Government, be extradited to stand trial in the requesting state. [15] Other than the Prime Minister and the Secretary of State for Foreign and Commonwealth Affairs, whom we are formally serving (as we serve you) with this letter. Return to contents list of L.I.S.G. Dossier "The Case Against War" |