Monday 11 November 2013

Murder in Helmand


The Court-Martial has found Marine 'A' guilty of murder of an already wounded Taliban fighter-  see The Independent 8th November.   Two other Marines were acquitted.  The Court Martial has jurisdiction over the case by virtue of the Armed Forces Act 2006 section 42.   Upon a conviction for murder, English law requires that a sentence of life imprisonment be imposed.  The term to be served before 'A' may be considered for release remains to be set by the Judge (His Honour Judge Jeff  Blackett who is also the Judge Advocate General).  In setting the term, the judge is able to consider any aggravating and mitigating features*.  Following the conviction, the Service Prosecuting Authority (SPA) issued a statement:

'Following a 13 day trial involving careful consideration of all the evidence made available to them, the members of the Court Martial Board have convicted the Defendant known as Marine A of murder. The Defendants known as Marines B and C were acquitted of the same offence. This combination of verdicts was always open to the Court Martial Board and the SPA respects the decision that has been reached. This was always going to be a complex trial which polarised opinions as to actions on the battlefield. With the conviction of Marine A, the Court Martial Board has sent an unambiguous message that there can be no excuse or justification for the unlawful actions described during this trial and that the consequence of such actions will be of the utmost seriousness.

As articulated by the Judge Advocate General, the Defendant will be sentenced at a later date to be specified. The issue of sentence is for the Court Martial and not for the SPA.'

Sentence / Clemency:

The Chief of the Defence Staff (General Sir Nicholas Houghton) has publicly said that it is not for the service command structure to request clemency - BBC 10th November.  Gen. Houghton made it clear in his interview with Andrew Marr that there is a proper judicial process for sentencing which must be adhered to.  (There are also rights of appeal to the Court Martial Appeals Court - CMAC).

Political background to Afghanistan:

The British government committed the armed forces to Afghanistan in 2001 (Prime Minister Tony Blair's statement of 7th October 2001).  It has been a terrible campaign with the deaths, as of 5th November 2013, of 446 British service personnel - Casualties in Afghanistan.  On 7th October 2011 The Telegraph looked back on a decade of conflict - Afghanistan: A decade of conflict.  The purposes of military involvement in Afghanistan have never been made particularly clear to the general public.  It has been presented in various ways: the War on Terror following on the 9/11 tragedies in the USA to the need to control opium production or perhaps it was more about seeking to ensure access to natural resources etc.  As troops withdraw, there is considerable debate over what, if anything, has actually been achieved - e.g. Telegraph 19th August 2013 ; New York Times 17th October 2013 - As they leave Afghanistan, Britons Ask, 'Why?' and Arab News 28th June 2013 Chasing Shadows in Afghanistan    According to United Nations reports, opium production is increasing as troops withdraw - BBC 13th November.

Open court and anonymity:

In general, the Court Martial is required to sit in open court - Armed Forces Act 2006 section 158.   The requirement for open court is subject to anything to the contrary in 'court martial rules'.  Rule 153 of the Armed Forces (Court Martial) Rules 2009 permits the court to withhold matters from the public.  The accused Marines were granted anonymity under a ruling by Judge Blackett - (Order of 6th November 2012) and see - (Order of 8th November 2013) - where the Judge rescinded the anonymity order but allowed until 15th November for an appeal relating to this ruling to be lodged with the Court Martial Appeal Court (CMAC).  A first point in any such appeal will be whether the CMAC has jurisdiction under the Armed Forces (Court Martial) Rules 2009 Rule 154 to hear the appeal.

In making the anonymity orders, Judge Blackett considered Re L (An Officer) [2007] UKHL 36 and Re W's application [2004] NIQB 67

Killing of the enemy:

An element of the definition of murder is that deceased must have been 'under the Queen's Peace' at the time of the killing.  This point tends to be dealt with very briefly in most criminal law textbooks.  The killing of the enemy in the heat of battle will not be unlawful killing.  Such enemies would not be deemed to be under the Queen's Peace.  There are however situations in which the enemy must not be killed.  For instance, the Geneva Conventions - (to which the UK is a party) - become relevant.  As the Red Cross indicate:

'The Geneva Conventions and their Additional Protocols are at the core of international humanitarian law, the body of international law that regulates the conduct of armed conflict and seeks to limit its effects. They specifically protect people who are not taking part in the hostilities (civilians, health workers and aid workers) and those who are no longer participating in the hostilities, such as wounded, sick and shipwrecked soldiers and prisoners of war.'    Hence, Article 12 of the First Geneva Convention states: 'Members of the armed forces and other persons mentioned in [Article 13] who are wounded or sick, shall be respected and protected in all circumstances ...'

The events were recorded by a head camera and, at one point, X can be heard referring to the Geneva Convention - Royal Marine executed captured Afghan Court Martial hears

Marine A then says: “There you are. Shuffle off this mortal coil you c***. It’s nothing you wouldn’t do to us.”
He turns to his patrol and says: “Obviously this doesn’t go anywhere fellas. I have just broken the Geneva Convention.”
One comrade replies: “Roger”.
Later, the patrol can be heard reporting back on the radio that the fighter has died of his wounds.

The full recording has not been made public - UK government argues releasing video would risk lives

Of course, the statement that - It’s nothing you wouldn’t do to us" - is likely to be perfectly true but the fact remains that the UK abides by the Geneva Conventions and the rule of law.  As the Chief of the Defence Staff pointed out (link above) we wish to maintain a 'moral ascendancy' over those who are our enemies.

Trial of murder committed abroad by a British citizen:

A court in England and Wales may try a British citizen for murder or manslaughter even when it is committed abroad - Offences against the Person Act 1861 s.9 and British Nationality Act 1948 s.3


* In sentencing, the judge could take into account the impact on the individual of the extreme stress of exposure to battlefield conditions.  This is a matter which a court martial is well placed to consider.

International Committee of the Red Cross - Geneva Conventions and Resources (Documents)

ICRC - Development of modern international humanitarian law

Manual of Service Law (JSP 830) 

Addendum 17th November:

Marine A - it's a question of leniency - Telegraph 17/11/13.  As mentioned above, I see no legal reason why the judge cannot take fully into account the impact on the individual of the extreme stress of exposure to battlefield conditions.

Addendum 18th November:

UK Human Rights Blog - Will Marine 'A' retain his anonymity - reporting that an appeal to CMAC by Marine 'A' has been commenced.

Addendum 20th November:

Halsbury's Law Exchange - Marine 'A' and the sentencing of battlefield executions 

Addendum 5th December:

The Guardian - Naming of Marine A   and The Guardian 5th December 2013 

Judiciary UK - Orders of 5th December 2013 

1 comment:

  1. the 3rd Geneva Convention Clause 4 and the additional Protocols 1977 both exclude "Militia" that do not bear arms openly: wear no recognisable uniform: have no chain of command and do not adhere to the rules and customs of war 1908 Hague convention