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Crimes and War Crimes
Publication date: 2005-07-23

The Difference between War Crimes and Crimes Committed by Military Personnel

Some British military are accused of “war crimes”, and some question, whether such description of the acts committed by them is appropriate. And fears are being expressed that labeling the acts committed by the British servicemen is motivated by politics — by describing acts committed by some British military as “war crimes” the British government seeks to shift their own liability for war crimes onto military personnel — in the same way as they deflected demands for an inquiry into the reasons for the Iraq War to an inquiry into the circumstances of the death of a British civil servant, Dr Kelly.

To answer these questions we need to consider the various types of crimes associated with wars, and then to establish whether and under what circumstance acts of military personnel can be classified as “war crimes”.

“War” is an act of occupation of territory or/and destruction of people and/or property of a country without permission of the government of that country by persons of another country on the orders of the government of that other country.

Being an act of wilful violence, a war can be justified only on the following grounds:

  1. self‐defence,
  2. enforcement of justice,
  3. maintenance of law and order.

In all the above cases the violence should be restricted to the necessary minimum, and can be resorted to only, if there are no legal peaceful ways of achieving the above objectives.

War for any other reasons than listed above is crime in itself.

Wars can be started only by governments. And, if a war is not justified, it is the head of state of the country that started an unjustified war who is directly responsible for that crime.

If a war is not justified, then any acts of violence committed by the country which started that war are war crimes.

In the course of wars, even, if they are justified, those taking part in the war can commit acts which are criminal by their nature. Such criminal acts would be any acts of violence or destruction which could not be justified by any necessary military activities, but have a clear purpose other than military necessity: such as rape, sadistic killings or infliction of injury or pain, destruction of property not in the course of normal military operations, any form of humiliation or reprisals against civilian population or prisoners of war, and similar acts.

While the liability for starting a war without justification always lies with the government of the country which started the war, criminal acts committed by military personnel of a country waging a just war can be of two types: those committed by military personnel on the orders of their superiors, and those committed by military personnel on their own initiative.

The liability of military personnel for any crimes committed in accordance with the orders of their superiors lies with the superiors who issued the orders to commit acts which happen to be crimes. A military person cannot be held criminally liable for acting in accordance with the orders of his superiors.

Criminal acts committed by military personnel on their own initiative are not war crimes. They are crimes committed by military personnel. It is irrelevant whether such acts were committed in war time or in peace time, or whether they were committed against persons or property of their own country, or those of another country. Killing an Iraqi prisoner by a British soldier not pursuant to an order of his superiors is not different from killing by a British soldier of another British soldier, or of a British civilian. And this is regardless of whether it happened in war time or peace time. If such act was deliberate, it is murder, if not it is either manslaughter, or an accident, in which latter case he is not guilty of any crime. The fact that it was done by a military person in war time is an aggravating circumstance of misuse of his position and of breach of the Army Discipline. But it cannot be a war crime.

The only people who can be guilty of war crimes are heads of state who order their military personnel to wage unjustified wars or to commit criminal acts in just wars.

Thus, those who say that accusing the British military of war crimes is a political ploy by the British Government to deflect the accusations of war crimes from themselves onto British soldiers are right. A British military accused of killing an Iraqi prisoner can be only accused of murder or manslaughter, not of war crimes.

The liability for war crimes is with Tony Blair as the head of state who started a war without valid reasons. Shifting this liability onto a British military is just another example of Tony Blair politics, similar to his replacing an inquiry into the reasons for the Iraq War with the inquiry into the death of Dr Kelly.

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