Lord Thomas of Gresford (LD) [V]:...If we look elsewhere for
confirmation, in its final report published on 9 December 2020
entitled Situation in Iraq/UK, the prosecutor for the International
Criminal Court concluded that the information available provides “a
reasonable basis to believe that … members of UK armed forces in
Iraq committed the war crime of wilful killing/murder … at a
minimum, against seven persons in their custody. The information
available provides a reasonable basis...Request free trial
(LD) [V]:...If we look elsewhere for
confirmation, in its final report published on 9 December 2020
entitled Situation in Iraq/UK, the prosecutor for the International Criminal Court concluded
that the information available provides
“a reasonable basis to believe that … members of UK armed forces in
Iraq committed the war crime of wilful killing/murder … at a
minimum, against seven persons in their custody. The information
available provides a reasonable basis to believe that … members of
UK armed forces committed the war crime of torture and
inhuman/cruel treatment … and the war crime of outrages upon
personal dignity …against at least 54 persons in their
custody.”
The prosecutor also found that there was a reasonable basis to
believe that there were seven victims of sexual violence. It is
impossible, regrettable as it may be, to dismiss the claims brought
by victims as being vexatious. As a civilised country, we must face
up to that fact and ensure as far as we can that the disciplines
are in place which prevent these things happening...
(Non-Afl)
[V]:...The case of Al-Skeini concerned the issue of whether
the Human Rights Act had extraterritorial application. Lord
Bingham—probably the outstanding judge of my and perhaps other
generations—came to a clear view on the matter. He was not,
incidentally, a judge with anything other than considerable
enthusiasm for the protection of human rights in law. But his
careful analysis was based on statutory construction and was a
clear reflection of precedent. He set out in his judgment the
relevant principles, and concluded as follows:
“I would accordingly hold that the HRA has no
extra-territorial application. A claim under the Act will not lie
against the Secretary of State based on acts or omissions of
British forces outside the United Kingdom. This does not mean that
members of the British armed forces serving abroad are free to
murder, rape and pillage with impunity. They are triable and
punishable for any crimes they commit under the three service
discipline Acts already mentioned, no matter where the crime is
committed or who the victim may be. They are triable for genocide,
crimes against humanity and war crimes under the International Criminal Court Act
2001. The UK itself is bound, in a situation such as prevailed in
Iraq, to comply with The Hague Convention of 1907 and the
Regulations made under it. The Convention provides (in article 3)
that a belligerent state is responsible for all acts committed by
members of its armed forces, being obliged to pay compensation if
it violates the provisions of the Regulations and if the case
demands it. By article 1 of the Geneva IV Convention the UK is
bound to ensure respect for that convention in all circumstances
and … to prohibit (among other things) murder and cruel treatment
of persons taking no active part in hostilities. Additional
obligations are placed on contracting states by protocol 1 to
Geneva IV. An action in tort may, on appropriate facts, be brought
in this country against the Secretary of State: see Bici v Ministry
of Defence … What cannot, it would seem, be obtained by persons
such as the present claimants is the remedy they primarily seek: a
full, open, independent enquiry into the facts giving rise to their
complaints, such as articles 2 and 3 of the Convention have been
held by the Strasbourg court to require. But there are real
practical difficulties in mounting such an enquiry.”
(CB):...Accusations must certainly be
investigated, but such investigations will bring pain to guilty and
innocent alike. How much more is this the case when the
investigations are repeated and protracted? That is the evil that
this Bill should address. The Government’s view seems to be that it
is not possible to legislate on investigations since that would
almost certainly increase the risk of UK service personnel and
veterans coming under the scrutiny of the International Criminal Court They
have therefore taken an indirect approach to the problem, in the
hope that codifying the factors that must be considered by a
prosecutor will discourage speculative and malicious accusations.
Of course, this is a wholly untested thesis; it may work to an
extent, but equally it may have little impact...
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