Legal Issues

1
Legal Issues

• LCdr Gordon Thomson, o.p.l.

2
OUTLINE

• Command Responsibility
• SOFA
• Legal Paradigms
• Civilian contractors
• Troops
• Shrinking Battle Space

3
SOFA

• Only as good as
• Those who wrote it
• The issues they understood were important
• The willingness of the Host Country (and others)
  to abide by the terms.
• KNOW the terms and their impact on your mission.

4
LEGAL NEED TO KNOW

• Know the UNSCR mandate
• Know your national mandate
• Know your ROE
• Are they clear, consistent and adequate?
• Know your friends (WELL!)

5
SPECTRUM OF CONFLICT (SPECTRUM OF PEACE
OPERATIONS)
Start of Armed Conflict
Formal Cessation of Armed Conflict
Armed Conflict
Threshold of Armed Conflict
The Cycle of Conflict
Post- Ceasefire
Threshold of Sustainable Peace
Escalation
Peace
The Intent of International Response
The Spectrum of Peace Operations
Peace Enforcement Operations
6
COMAND RESPONSIBILITY

• UNSC Chapter 6
• UNSC Chapter 6 ()
• UNSC Chapter 7
• UNSC Chapter 8

7
Contractors

• Civilian Contractors
• Fish or Fowl?
• Protection
• Legal responsibility

8
DISCIPLINE

• Branch of instruction or learning mental or
  moral training, adversity as effecting this
  system of rules for conduct behaviour according
  to established rules.
• Order maintained among school children, soldiers,
  prisoners, etc. control exercised over members
  of a church or other organization.
• Oxford English
  Dictionary

9

• Crimes
• War Crimes
• Crimes against Humanity

10
(No Transcript)
11
WAR CRIMES, CRIMES AGAINST HUMANITY

• Rome Statute of the International Criminal Court
  (ICC)
• drafted 98
• in force 1 Jul 02
• National Legislation for general criminal acts
• Who may be held responsible?

12
ICC definition of War Crimes

• Art 5 Crimes within Jurisdiction of the Court
• limited to the most serious crimes of concern
  to the Int Community as a whole
• Genocide
• Crimes against humanity
• War Crimes
• The crime of Aggression

13
War Crimes

• Broadly speaking, war crimes include all
  violations of international law during an armed
  conflict or occupation
• The term may also is used in a narrower fashion
  (ICC)

14
Crimes Against Humanity ICC

• The Nuremburg crimes plus
• Torture (see definition Art 7 para2 (e))
• Rape and other forms of sexual violence
• Persecution against any identifiable group
  (political, racial, national, ethnic, cultural,
  religious, gender or other grounds)
• Apartheid
• Enforced Disappearance of Persons
• Other inhumane acts intentionally causing great
  suffering, or serious injury to body or to mental
  or physical health

15
ICC Jurisdiction

• power to exercise its jurisdiction over persons
  for the most serious crimes of international
  concern (Art 1)
• shall be complementary to national criminal
  jurisdiction (Art 1)
• Not retroactive for a person - July 02
• For a State upon entry into force for each
  State

16
Commanders Responsibility Art 28

• Responsible for crimes committed by forces under
  the commanders effective command or control ..
  As a result of the commanders failure to exercise
  control
• Knew or should have known forces were about to
  commit acts
• Failed to take all necessary and reasonable
  measures to prevent or repress their
  commission, or to submit the matter to the
  competent authorities for investigation and
  prosecution

17
(No Transcript)
18
(No Transcript)
19
COMMAND FRESPONSIBILITY

• Educate
• Train
• Control

20
(No Transcript)
21
ONE SIMPLE CONCEPT, ONE GOLDEN RULE

• DO NOT DO ANYTHING TO ANYONE THAT YOU WOULD NOT
  WANT DONE TO YOU!

22
Minimum Treatment foe ALL
Consistent with GC (CA 3) and AP I

• Humane treatment at all times
• Responsibility rests on individual, unit and
  country
• Evacuation to safe area
• Prompt medical treatment
• Food and quarters to standard of own troops
• No intimidation or violence
• If in doubt treat as PW

23
THREE SIMPLE WORDS

• Respect
• Protect
• Treat

24
CF Code of Conduct

• 1. Engage only opposing forces and military
  objectives
• 2. In accomplishing your mission, use only the
  necessary force that causes the least amount of
  collateral civilian damage
• 3. Do not alter your weapons or ammunition to
  increase suffering or use unauthorized weapons or
  ammunition
• 4. Treat all civilians humanely and respect
  civilian property

25
CF Code of Conduct (contd)

• 5. Do not attack those who surrender. Disarm
  and detain them
• 6. Treat all detained persons humanely IAW the
  standard set by the 3rd Geneva Convention. Any
  form of abuse, including torture, is prohibited
• 7. Collect all the wounded and sick and provide
  the treatment required by their condition,
  whether friend or foe.
• 8. Looting is prohibited

26
CF Code of Conduct (contd)

• 9. Respect all cultural objects (museums,
  monuments, etc) and places of worship
• 10. Respect all persons and objects bearing the
  Red Cross/Red Crescent, and other recognized
  symbols of humanitarian agencies
• 11. Report and take appropriate steps to stop
  breaches of these rules. Disobedience of the law
  of armed conflict is a crime

27
The Shrinking Battle Space
In a battle space with insurgents, refugees and a
proliferation of GOs, IGOs and NGOs directly
working in the most troubled areas, a serious
difficulty arises for military commanders to
conduct their operations.
28
The Shrinking Combat Space
29
PEACE OPERATIONS - SIMPLIFIED MODEL
INTERNATIONAL COMMUNITY
WAR
HOST NATION POPULATIONS
30
Abuse of GOs and NGOs by Belligerents
31
WHY WE BOTHER
32
Lest We Forget