So, over the last week or so of a general media blackout surrounding the subject, bits and bobs are starting to drip out about the case…
Now, whilst i am generally VERY wary of anything published in the media (i tend to refer to sources like the BBC, Reuters and believe it or not Al Jazeera, all of whom are very reputable broadcasters) lets examine what the media are saying, and the legality of the charges brought against the five Royal Marines.
The press have said that the arrests, and subsequent charges were made when a video of the patrol, was discovered by police on a laptop of a Royal Marine whilst investigating an unrelated incident. The video is of the patrol members discussing whether to administer first aid to the insurgent (who later died of his injuries) of who’s murder they are accused.
Firstly, to put these charges into context, lets look at the Geneva convention, and what it says about combatants.
The following categories of combatants qualify for prisoner-of-war status on capture:
- Members of the armed forces of a Party to the conflict
- Members of militias not under the command of the armed forces, with the following traits: Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
- that of being commanded by a person responsible for his subordinates;
- that of having a fixed distinctive sign recognizable at a distance;
- that of carrying arms openly;
- that of conducting their operations in accordance with the laws and customs of war.
- Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
There several types of combatants who do not qualify as privileged combatants:
- Combatant who would otherwise be privileged, but have breached other laws or customs of war (for example by fighting under a white flag).
- spies, mercenaries, child soldiers, and civilians who take a direct part in combat and do not fall into one of the categories listed in the previous section (for example “inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces” would qualify as privileged combatants).
For countries which have signed the “Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts” (Protocol I), combatants who do not wear a distinguishing mark still qualify as prisoners of war if they carry arms openly during military engagements, and while visible to the enemy when they are deploying to conduct an attack against them.
As i understand it, Afghanistan has signed the 1949 conventions and were ratified in 1956, but have not signed any further protocols since, thus making them ineligible as current signatories, and therefore, not entitled to be treated under its articles as a signatory.
To the insurgent in question… Now… the key words here are PRIVILEGED COMBATANT. Was this insurgent a privileged combatant? was he wearing a a fixed symbol recognisable at a distance? If the answer to that is no, he was NOT a privileged combatant, and that being so, the patrol was not under any obligation to treat him under the rules of the Geneva convention.
Of course, we cannot be sure that he wasn’t, however, it is unusual (and i’ll stick my neck out as far as to say it NEVER happens) for insurgents to follow the rules of the Geneva convention, so we can fairly safely say he was wearing no uniform or recognisable insignia. Thus we can assume he was a “francs tireurs” and therefore exempt from privileged combatant status, meaning:
A.) He did not qualify for POW status UNLESS there was doubt over his eligibility (which as the patrol must have positively identified him and taken fire off him to have returned fire, then we can safely say he was ineligible)
B.) He did not qualify for first aid or medical treatment of any kind
C.) The patrol would have been quite within their rights under the Geneva convention and military law, to execute him on the spot.
So then, why are these Royal Marines being charged? Good question, can you ask me on on Rugby instead?
Even if, as some of the media have suggested, he was shot whilst surrendering, then, whilst it is a gross act of indecency, because of his exempted status, he was not eligible to protection under the Geneva convention. Whether he should have been afforded the courtesy, is a matter for personal interpretation and is an entirely different discussion which i will steer clear of in this post.
As the picture becomes clearer, and more information comes out, i am more and more convinced that the Royal Marines are being charged illegally. The act happened outside of the UK, so far from the jurisdiction of the UK Police force. It could be referred to the Afghan national police, but we have all seen how trustworthy they are over the last few years (i refer to the several incidents of Afghan Policemen shooting and killing British soldiers) and i doubt that even Cameron would let that happen to UK nationals. So then, we are left with 2 options, a Military courts martial or a war crimes trial in the Hague.
I’m glad (not actually glad its happening, but glad its not a war criminal trial if you get me) to say, that of the two, the former looks most likely. It has already been directly referred to the Service Prosecuting Authority, for the next stage of the process.
But these charges, cannot possibly be brought to bear, and i’ll tell you why i believe this to be so…
Under section 51(1) of the International Criminal Court Act 2001, genocide and crimes against humanity committed either in the United Kingdom or by United Kingdom nationals abroad can be prosecuted. BUT, as a dualist nation, other prosecutions can only be mounted where the United Kingdom has acceded to the Treaties and Conventions that create the offences including: war crimes, torture, and enslavement and forced labour offences.
But, as we have already established, these Royal Marines, acted within the accepted protocols of the Geneva convention, and therefore by its very definition, CANNOT be guilty of a war crime or crimes.
So then, there has to be another reason the MOD are pursuing this case so publicly and rigorously.
Its called “Trying to prove to the world the UK are not the monsters that they are perceived to be by stitching up some of its finest Soldiers…”
I for one, am NO Maggie Thatcher fan, i remember what she did to this country. But say what you will about her, she would not have put up with this scape-goat-ism and using the Military to take the fall. She would have had those Royal Marines out of prison and back in theatre in a matter of hours.
Mr. Cameron would do well to remember that.
Unfortunately, i have a feeling, we are going to see another Lee Clegg incident. Where the trial and appeals drag on for years before finally being cleared of all wrong doing.
This is NOT acceptable. Whilst military personnel are no more exempt from the law than anyone else, common sense must be used in the application of said laws during the course of their duty. If genuine war crimes occur, then by all means charge and punish the protagonists, but don’t use our brave service personnel as pawns in a political game to score points.
It is no surprise, that the government appear to be keeping a lid on things. 3 Commando Brigade, also appear to be towing the party line, having told the Royal Marines and their families to keep quiet on the subject, as one wife points out in this statement: “Hi … Sorry but not allowed to comment on your page… We as military families have been instructed not too… Freedom of speech???? Anyway we live on military base my hubby is bootneck and just wanted to say thanks for all the support, but again not allowed to do it publicly!!!”
Even the major broadcasters in the UK have been told to keep schtum as this quote underlines: “Hello, some of you have been asking why the press blackout? I can answer this, we have been contacted by the BBC and ITV and although we were willing to speak to them they contacted us back saying they had been told by a higher person not to talk to us and then wouldn’t say anything else. Hope this clears up that question!”
This all smells to me of a government desperate to keep things under wraps, and although they will give you the party line of “its so it doesn’t prejudice the case” i firmly believe it is to keep a low as profile as possible so as not to let out the facts proving these men are innocent.
These charges are ILLEGAL. Release the Five NOW.
Such an emotive subject has hit the nation hard and support groups have sprung up all over the internet. Protests have been organised both in Plymouth and at downing street and online petitions have been organised, such is the strength of feeling from the public.I urge you to sign the petition and pass it on to all of your friends so they may also do the same.