Criminal Omissions: Assessing the Limits of the Military Profession in International Law

Lenneke Sprik

After the mass atrocities that took place in Bosnia and Rwanda during the nineties, questions were raised regarding the individual duties and criminal responsibility of military officials during peacekeeping missions.  In the Netherlands a criminal complaint was filed against the commander of the Dutch battalion (Dutchbat) who was allegedly responsible for the death of three men in Srebrenica; one working directly for Dutchbat, the others relatives of those working for Dutchbat.

In 2011 the state responsibility of the Netherlands was confirmed by the Dutch court that held that ‘Dutchbat should not have handed the three men over to the Serbs.’ Likewise, in Belgium the military commanders of the Belgian peacekeeping forces in Rwanda were held responsible –together with the state- for the death of 2000 men under their protection in an intermediate decision in 2010.

Although these cases deal with individual complaints, the wider implication is that military commanders may be held responsible for not acting against serious international crimes committed by another party. This would not just radically change the interpretation and scope of international law as it is now, it might also seriously influence the willingness of states to deploy their military in multinational missions.

Current state of domestic and international law regarding omissions

Do we currently recognise criminal omissions in international or domestic law? The Netherlands and England (and Wales) both acknowledged the existence of omission liability in the relevant domestic laws regarding serious international crimes.

In international law, omission liability as such has not been recognised. It was not incorporated into the Rome Statute, despite the fact that a draft version included an article on omission liability. However, due to the objections of a few states, the article was excluded in the final Statute. One could say that it has caused divided thinking in the past and may continue to do so. The ICTY’s judgments in the Blaskic and Mrksic cases show acceptance of omission liability to a certain extent. The Trial Chamber’s opinion regarding the responsibility of Šljivančanin in Prosecutor v. Mrksic was a breakthrough in international criminal law, since it is the first judgment in which a superior has been held responsible while the people committing the crime were not confirmed to be his subordinates.

In Britain, the Smith judgment earlier this year caused widespread debate about the applicability of law on the battlefield. In this case the British Supreme Court confirmed that the European Convention on Human Rights applies in territory over which the United Kingdom exercises control. This means that the duty of care is applicable in situations of peace and conflict, which could lead to a rise in complaints regarding gross negligence in protecting the right to life.

Main concerns

The main concerns that these recent developments in military law give rise to are twofold. First, a clear understanding of what soldiers and their superiors are supposed to do in terms of duties and protection is lacking. A clear balance should be found between what we can realistically expect from the military and what the military can actually do, considering the complex circumstances they are in. This balance should be translated and incorporated into both international and national law.

Second, states will be wary of sending their troops abroad if the state and the military officials might face legal consequences based on violations of either criminal or human rights law. This is – in general – a highly undesirable consequence of the aforementioned legal actions.

On the other hand, we might ask ourselves whether imposing legal constraints on the military profession is necessarily a bad thing? After all, the level of responsibility is high, so certain obligations may be imposed on military officials. They have an exclusive authorisation to use force and to represent the nation outside the nation’s territory. Also, members of the armed forces are trained to work in extremely complex situations where they can be confronted with life-threatening circumstances.

Can we overcome these problems in a short period of time? Probably not. Although the reinforcement of combat immunity may seem like a solution, we should not underestimate how this would make law completely irrelevant in any peace or combat situation in which  a nation’s armed forces may be deployed. The development of universal norms regarding omission liability and the military duty of care would, in my opinion, be one of the most desirable solutions in this regard.

Lenneke Sprik (@LSLena24) is a PhD student in Public International Law at the University of Glasgow. She holds master degrees in both International Relations and Military law and has been focusing on ethnic conflict, military interventions and military law for several years now.

You can find out more about Lenneke’s research at http://www.gla.ac.uk/schools/law/research/currentresearchcandidates/lennekesprik/

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3 thoughts on “Criminal Omissions: Assessing the Limits of the Military Profession in International Law

  1. Dave

    Hello Lenneke,
    With interest a have read the article, thank you.
    In your article there was stated that a clear balance should be found between what we can realistically expect from the military and what the military can actually do, considering the complex circumstances they are in.
    To keep it short, I was one of the soldiers who was operational in Srebrenica in 1995. In 1999 I filled a case against the Ministry Of Defence (MOD) about the operational aspects and the after care.
    In this verdict was stated that the nature of the military company under war conditions preclude operational decisions taken in similar situations to be reviewed by the judge on the duty of care.
    (…)Eerder is overwogen (CRvB 5 juni 2003, LJN AN8521) verzet de aard van het militaire bedrijf zich ertegen dat onder oorlogsomstandigheden of in daarmee vergelijkbare situaties genomen operationele beslissingen door de rechter aan de zorgplicht worden getoetst. (…)
    http://www.rechtspraak.nl/ljn.asp?ljn=AU6006 ( in court the MOD was held liable)

    http://www.rechtspraak.nl/ljn.asp?ljn=BZ1164 (later this was revised by higher court)

    In the verdict is stated the the soldier (me) dit not made resistance to operation. This gives the individual soldier a very high military responsibility. And what if one make resistance as, like in the case Hermes-Hoppenbrouwer. The soldiers are put on trail for the military penal. ( Case defended by military union the ACOM).

    These 2 soldiers was placed in 1993 in Sarajevo airfield with no protection and support. They resisted and was put in jail and lost there job.

    So reading this, it is often the choice between the Devil or the Deep blue sea.

    Back to my case, we followed the commands of our Commander and back in the Netherlands I filed a case with many basic important military aspect such as providing logistical support by air-or-land, bad field communications, very bad maintenance of weapons,exit-strategics etc etc.

    All of that is important to expect in realistic sense from the military cq. the soldier in the field what they can do in the field. I filed the case to the MOD, because I want to protect the community and my Battalion. I will defend this on the battle field or in a Courtroom – no matter what – because the lives and the human rights of the community are in jeopardy. Next to that we can be held responsible for not acting against serious international crimes committed by another party.

    In my case the first judge stated on 1 november 2005 that plaintiff at the time of the attack by the Bosnian Serbs in the enclave find themselves in what is in the report-Van Kemenade (1998) is described as “a desperate, dangerous and traumatic situation” is at least in part due to the lack of adequate preparation for a possible attack. Defendant (MOD) had a responsibility and in this respect is guilty of serious misconduct.

    (…)Dat eiser bij de inval van de Bosnische Serviërs in de enclave is komen te verkeren in wat in het rapport-Van Kemenade (1998) is omschreven als “een hopeloze, gevaarlijke en traumatische situatie” is althans ten dele het gevolg van het ontbreken van voldoende voorbereiding op een mogelijke aanval. Verweerder had hierin een eigen verantwoordelijkheid en is in dit opzicht tekortgeschoten.(…)

    In my vision is that the military must have the best material to defend the community and
    have the right equipment and mandate to act against serious international crimes committed by another party. There lives of the community and soldiers are depending on it.

    Second, the fear of International backing-off is also not based on good grounds, because their safety, is our safety. Look at the refugees for instance fleeing to Europe..

    Third, in politics they always want to bake an egg, but don’t want to break the shell.

    It’s simpel, if you go cutting down on the Military and Security, at the end the price will be higher.

    So in my view the Criminal Omission is giving not the right support to our troops, who have to act against these serious crimes in extreme conditions(!).

    – To the protective flower stem blooms the flower of the culture –

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    1. lenneke24

      Dave, thank you very much for your useful comments. I am glad to see that my blogpost has reached you somehow and that you made the effort to reply and share your thoughts. It is interesting to read your point of view and I agree that accepting omission liability would have serious negative consequences for the military. I should probably point out that with my reference to ‘developing universal norms regarding omisson liability and the duty of care’ I am not necessarily saying that I think it should be recognised. Instead, I think that domestic and international legal norms should at least not contradict each other.

      Your cases have shown us that there is a lack of clear legal provisions on the rights and duties of peacekeepers, which is a shame in my opinion. I think it is great that you won in the end, but it should not have taken you this long. I would like to argue in favour of clearer rules regarding peacekeeping and peace enforcement missions. And not just for duties of peacekeepers (commanders) but also the rights of peacekeepers. At the moment it is just a grey area of law, because dominant military law instruments only deal with war or peace. But what happened in Bosnia has nothing to do with peace of course, yet still, it was framed as a peacekeeping mission. In my opinion, politicians are not always aware of the actual situation in a ‘peace’ or ‘conflict’ area and often make decisions based on political interests. I wonder whether more military expertise at the time, could have changed the decision of the Dutch government to contribute to UNPROFOR in Srebrenica. In general, I believe things need to change, and more important, law needs to develop. Hopefully that will benefit and protect both the soldiers and the civilians in future situations like Srebrenica or Rwanda.

      Regarding the responsibility question: it will always be difficult to find a satisfactory answer to the question who or what should incur liability in these matters. State responsibility does not exclude individual responsibility, but as the Court also stated, if situations are very complex, what may be expected from soldiers? A lot of research is needed to develop more clarity on these issues. I will most definitely look at state responsibility and organisational responsibility as well. In the end, a lot of the actual power lies with institutions like the United Nations. It will take me at least another year, but hopefully I will know a bit more about this by then. My research will not solve anything, but I hope that it raises some awareness about the difficult legal classification of peacekeeping missions and the difficulties that follow from that in terms of answering the duties/rights/responsibility questions involved.

      Again, thank you for your elaborate answer. It is very useful and I will have a further look at what the Court(s) decided in your case(s). Feel free to contact me if you would like to discuss this further. I would be more than happy to do that.

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      1. Dave

        Hello Lenneke, thank you for the interesting response. I hope that my vision and the internet links of the verdicts was useful to give some insight from our perspective. I have more information and documents over this operation, so if you have ever questions, just send me and email and it a pleasure to help.

        Greetings Dave

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