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.
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/