If you are in the military, you will be well aware of military law. Taking the position of British soldiers as an example, the Military Criminal Justice System is seen as an essential part of the British Army, both at home and abroad. The Adjutant General has said that ‘it often serves where there is no law or where UK standards of law and justice are not applied. Self-regulation is therefore a prerequisite for military operations.’
The overview provided by the Armed Forces Bill Team serves as a useful summary of the legal position for the British military in war zones: ‘UK courts cannot generally try offences which are committed outside the UK. The Service system of law ensures that, as far as possible, Service personnel are dealt with by a familiar system if they commit an offence when serving overseas. They can expect a consistent and fair hearing wherever they find themselves. Without such a system, they would be dealt with under the law of the country in which they are serving or escape justice altogether. At a practical level this means that they are dealt with in a language they understand. They are also dealt with fairly by a system judged to be fully compliant with the European Convention on Human Rights (ECHR).’
A soldier will have to be cognisant of his position under military law in addition to his position under civilian law.
In September 2009, Steven Green, accused of raping and murdering an Iraqi girl, became the first former soldier to be prosecuted in the United States for crimes committed overseas. Had he been sentenced to execution, he would have been the first American soldier ever tried for war crimes in a civilian court to receive that sentence, but he was given life imprisonment instead.
Aside from the military, much public attention has focused on armed private security contractors. The legal treatment of the Blackwater contractors who were accused of killing 17 Iraqis in Baghdad’s Nisour Square in September 2007 caused an international media storm.
According to a December 2009 report to Congress, the US Department of Defense (DoD) workforce in Iraq and Afghanistan comprises roughly comparable numbers of contractors (218,000) and uniformed personnel (195,000). But it is estimated that less than 10 per cent are security contractors, and the rest are doing just ordinary jobs, working as electricians, engineers, canteen staff and suchlike.
Paul Bremer, head of the Coalition Provisional Authority, controversially signed Coalition Provisional Authority Order 17, which stated that ‘Contractors shall not be subject to Iraqi laws or regulations in matters relating to the terms and conditions of their Contracts.’ It provided effective ‘immunity’ for contractors in the eyes of the Iraqis for them to do what they wanted.
In late 2008 a new law was approved by the Iraqi government, and Bush’s announcement of it was made more famous by a displeased Iraqi journalist throwing a shoe at him. It was agreed that ‘Iraq shall have the primary right to exercise jurisdiction over United States contractors and United States contractor employees’, so US contractors working for US forces would be subject to Iraqi criminal law. If US forces committed ‘major premeditated felonies’ while off duty and off base, they would be subject to the still undecided procedures laid out by a joint US–Iraq committee. However, the agreement is not totally clear and the immunity question is still being talked about.
Contractors are also subject to international laws, such as the Geneva Convention. This refers to ‘supply contractors’, which could include defence and private military contractors. Provided they have a valid identity card issued by the armed forces that they accompany, they are entitled to be treated as prisoners of war if captured. If they are found to be mercenaries, they are unlawful combatants and lose the right to prisoner of war status. This means that US contractors to the coalition forces in Iraq are subject to three levels of law – international, US and Iraqi.
There are many difficult aspects to operating a commercial company in a war zone. Among those that foreign nationals working for them should be aware of are the international anti-corruption measures, which will still be applicable to them. Perhaps the best known, thanks to rigorous enforcement and hefty fines, is the US Foreign Corrupt Practices Act (FCPA), but there are also measures laid down by the Organization for Economic Cooperation and Development (OECD) and UN conventions. The UK Bribery Act (in effect since April 2010) is an interesting development as the UK has been relatively poor at investigating and prosecuting corruption offences in the past. This new law is wider in scope than the piecemeal ones it replaced, and it has extra-territorial reach.
Some of the red flags one should look out for as an employee working for commercial companies are requests for cash payments, requests for payments to third parties or offshore, requests for hospitality for government officials, or in fact any request if you are in a country with a reputation for corruption. The penalties can be quite substantial. Under the new British Act, for example, individuals guilty of one of the principal offences are liable on conviction to imprisonment for up to 10 years, or a fine, or both. If a deal ‘smells wrong’, it probably is, so it’s best to seek legal advice.
In areas of conflict journalists are considered civilians under Additional Protocol I of the Geneva Conventions, provided they do not do anything or behave in any way that might compromise this status, such as directly helping a war, bearing arms or spying. Every journalist should ensure that they are not put in a compromising situation in relation to any of these things. A deliberate attack on a journalist that causes death or serious physical injury is a major breach of this Protocol and deemed a war crime.
Journalists should also note in what capacity they are travelling to a country in terms of Employment Law. Are they considered an employee or are they freelancing? Some media corporations have been criticized for preferring freelancers in order to save money or abdicate themselves of legal responsibility.
The First Geneva Convention of 1864 established that a distinctive emblem should be worn by medical personnel on the field of battle as an indication of their humanitarian mission and their neutral status. This is still the case today, and whether you’re wearing the Red Cross or the Red Crescent, make sure it’s visible to afford yourself this protection.
And a final thought from Tom… ‘Before travelling to any hostile environment, spare some thought for your legal position there and what laws apply. Remember, though, that the “rule of law” is often the very thing being fought for, so don’t expect it always to be upheld.’
/WHEN TO LEAVE
James Brandon, a journalist who was kidnapped in Iraq in 2004, offers the following advice: ‘Deciding when to leave a war zone is as important as deciding when to arrive. Many people are killed or kidnapped because they stay too long. Typically, people arrive in war zones feeling wary, suspicious and paranoid. In many cases, however, they become more relaxed the longer they are there. Danger becomes so omnipresent that people sometimes become fatalistic (“Everybody dies one day” is a typical refrain you hear in war zones). For example, a person new to a war zone might estimate the chances of being killed while doing such-and-such activity and decide that if the odds of getting killed are more than 1–1000, they won’t do it. But after a few months they might say that a 1–50 chance of being killed on a particular mission is “do-able”. A few more months, however, and a 50:50 chance of being killed starts to look like playable odds. That’s when it’s time to leave.’