Fragmented power and state-corporate killings: a critique of blackwater in Iraq

Especially given the invasion of Iraq, a growing number of criminologists have been attending to the transformation of state power and security within a neo-liberal political context. Although the capacity and influence of the state is not disappearing altogether there is a discernible erosion of authority within the sovereign state. In the realm of policing, we witness continued fragmentation of authority in which state power is relinquished to expanding commercial markets. The de-coupling of policing and government raises serious questions about the changing architecture of liberal democratic societies, prompting concerns over the waning monopoly of legitimate coercion. The project here explores the controversy over the use of private military firms in occupied Iraq, particularly the recent killings of civilians by Blackwater personnel. While offering specific details of those incidents, the analysis elaborates on state–corporate crime by revealing how state power is dispersed to the private sector; by doing so, the article examines how private military personnel evade prosecution for war crimes and other human rights abuses.     

Military Courts and Prosecution of Offences by National Defense Forces in the Dawn of the Complementarity Regime: The Case of Uganda

With the coming into force of the Rome Statute of the International Criminal Court (ICC Statute) and its complementarity regime, much emphasis has been placed on the role of national courts in prosecuting international crimes. Some states have demonstrated their commitment to this regime by; inter alia, ratifying the ICC Statute, enacting national legislation to implement the ICC Statute and establishing national judicial forums for prosecution of international crimes. Uganda is a prime example of states rising up to this challenge. Uganda ratified the ICC Statute in 2002. In 2008, it established the International Crimes Division (ICD) to prosecute international crimes and in 2010, it enacted the International Criminal Court Act to implement the ICC Statute. Even before these reforms, Uganda’s military courts had always relied on service offences to prosecute members of the national defence force. Worthy to note, members of the Uganda Peoples’ Defence Forces (UPDF) have been implicated in a number of atrocities, some of which can be categorised as international crimes. However, military courts continue to prosecute UPDF soldiers for these atrocities on the basis of service offences. The situation current in Uganda highlights a number of legal issues relating to: first, the adequacy of service offences to advance accountability for the international crimes allegedly committed by UPDF soldiers; secondly, the jurisdiction of military courts over international crimes; and thirdly, the effect of concurrent jurisdiction by the ICD and military courts on the rule against double jeopardy.     

International Crimes and ICC Cooperation in England and Wales

The United Kingdom, as a party to the ICC Statute, has broughtin a series of similar pieces of legislation in order to fulfilits obligations under the Statute, and to ensure that crimessubject to the jurisdiction of the ICC are also crimes in domesticlaw. This article concentrates on the International CriminalCourt Act 2001, which applies in England and Wales, to appraisewhether it adequately provides for assistance to the ICC, andwhether the crimes subject to the ICC's jurisdiction are adequatelyincorporated into domestic law. The article also mentions thepossible role of the common law of England and Wales in relationto international crimes. It concludes that, for the most part,the Act reflects a sensible approach to issues involved in assistingthe ICC and provides a workable basis for the prosecution ofinternational crimes in that jurisdiction.     

National Implementation of ICC Crimes: Impact on National Jurisdictions and the ICC

The national implementation of the International Criminal Court(ICC) Statute has proven to be more difficult than initiallyanticipated. Most States Parties have either not incorporatedthe ICC crimes into their domestic laws, or they have done sousing different forms of wording. This article examines theimplementing legislation of several states to demonstrate howinadequate implementation of the ICC crimes might prevent statesfrom exercising their primary jurisdiction in criminal proceedings.In turn, this might affect the admissibility of a case beforethe ICC. To this end, this article also explores whether flawedimplementation of the ICC crimes amounts to unwillingness orinability of the state to genuinely prosecute. This articleargues that implementation of the Statute is of paramount importanceto the future of the ICC.     

Australian Prosecution of Corporations for International Crimes: The Potential of the Commonwealth Criminal Code

On 1 July 2002 new provisions for the prosecution of genocide,crimes against humanity and war crimes came into operation withinthe Australian Commonwealth Criminal Code. The offences wereintroduced as a part of Australia's ratification of the RomeStatute of the International Criminal Court. Through the enactmentof these crimes within the broader context of the Criminal Code,Australia has, perhaps unwittingly, created a basis to prosecutecorporations for these crimes even under the universal jurisdictionprinciple. A current investigation by the Australian FederalPolice into the possible role of mining company Anvil MiningLimited in facilitating a military offensive in the town ofKilwa in the Democratic Republic of the Congo indicates thatAustralia, like many nations today, is grappling locally withthe possibility of corporate involvement in international crime.As a potential source of action against companies implicatedin international crime, the possible reach of the AustralianCriminal Code provisions warrants consideration. This articleoutlines the application of the new Australian internationalcrimes provisions to corporations and argues that, if used appropriately,these will represent a positive development toward corporateaccountability.     

Proportionality, Territorial Occupation, and Enabled Terrorism

Some collateral harms affecting enemy civilians during a war are agentially mediated – for example, the US-led invasion of Iraq in 2003 sparked an insurgency which killed thousands of Iraqi civilians. I call these ‘collaterally enabled harms.’ Intuitively, we ought to discount the weight that these harms receive in the ‘costs’ column of our ad bellum proportionality calculation. But I argue that an occupying military force with de facto political authority has a special obligation to provide minimal protection to the civilian population. As a result, when an occupying military force collaterally enables a harm affecting the civilian population, the weight that the harm ought to receive in the ad bellum proportionality calculation is unaffected by the fact that the harm is agentially mediated – it ought to be weighed at least as heavily as those harms that the occupying force collaterally commits directly. As a result, satisfying the ad bellum proportionality constraint in wars of territorial occupation is more difficult than it has been thought.     

Protectors on trial? Prosecuting peacekeepers for war crimes and crimes against humanity in the International Criminal Court

Allegations of criminal conduct have been made against UN peacekeeping personnel. While only a small number commit criminal offences, these personnel must be held accountable for their actions. Ensuring accountability is difficult due to jurisdictional issues, including in which jurisdiction (host state, sending state, or third state) to prosecute offenders. However, the possibility of the International Criminal Court exercising jurisdiction over peacekeeping personnel (civilian or military) has not really been considered. This article will examine the potential applicability of the substantive law of war crimes and crimes against humanity under the Rome Statute to crimes committed by peacekeeping personnel.     

Trends in Police-recorded Offences

This article presents 10-year trends (1998–2007) on some common crimes: homicide, assault, rape, robbery, car theft, domestic burglary and drug offences. In addition, a few less common offences in police statistics, such as money laundering, corruption, offences against computer data and systems are discussed, even though trends of these crimes are not available. Trends are shown from Western, Central and Eastern Europe, where significant sociopolitical changes have occurred. Although police data actually describes more the recording practices of the officials than the amount of crime, police data is highly valuable for research purposes. Most countries continuously collect information about police activity, and the police is mostly the starting point for proceeding with a case in the criminal justice system. In the USA, all common offences recorded by the police have decreased during the recent years. In Europe, property crimes, homicide and robbery have decreased in most countries, but violence and drug crimes have increased. According to the crime victim surveys, the increase in assault cannot be explained by the increasing reporting activity of victims; the increase seems real. The level of crime differs considerably in different areas: for instance, homicide is most common in Eastern Europe, but assault is much higher in Western Europe.     

The Crime of Aggression before the House of Lords: Chronicle of a Death Foretold

In the days preceding the invasion of Iraq by the Coalitionforces, groups of individuals committed acts of civil disobediencein British military bases to hinder what they thought were unlawfulpreparations for an aggressive war. In R v. Jones et al., theHouse of Lords examined the question of whether individualscan rely upon the alleged prevention of crimes against peaceto justify otherwise unlawful actions under English law. TheLords ruled that the crime of aggression is a crime under customaryinternational law, yet not under English law. This followedfrom the principle that customary crimes cannot be incorporatedinto the English legal system without statutory enactment. Asa result, the appellants could not invoke the ‘Nurembergdefence’ to elude responsibility incurred under domesticlegislation.     

Comments on Illegal War and Illegal Conduct: Are the Two Related?

This article examines whether there is a link between the legality or otherwise of an armed conflict under jus ad bellum and the subsequent conduct of the campaign under jus in bello. This is done by comparing two conflicts where the legality was not in serious dispute, the Falklands/Malvinas conflict and the Iraq War 1990–1991, and three where the legality has been questioned, Kosovo 1999, the ‘global war on terror’ and the Iraq War 2003. In looking for a common link, the author is drawn away from concerns over the jus ad bellum to doubts over the content of the relevant law governing the conduct of hostilities. Uncertainties in the law have occurred both from the extension to non-international armed conflict of ‘Hague law’, traditionally applicable only in international armed conflicts, and the overlap between human rights law and the law of armed conflict. The author concludes that there is a danger that the balance between military necessity and humanity may be disturbed so that the law will become impracticable in the cauldron of conflict to the detriment of all, soldier and civilian alike.

     

Military Criminal Procedures and Judicial Guarantees: The Example of Switzerland

Since the Nuremberg and Tokyo Trials, scant attention has beendevoted to military tribunals. Only with the creation of theICTY and the ICTR has civil society started reconsidering thequestion of which fora might be better suited for trying individualsresponsible for war crimes and other gross human rights violations.The aim of this paper is to illustrate the Swiss military judicialsystem. It analyses, on the one hand, the judicial guaranteesprovided for in the Swiss Military Penal Code and the Code ofMilitary Penal Procedure. On the other hand, it discusses thejudicial guarantees afforded in the only two war-crimes trialsheld by the Swiss military justice — the G case and theNiyonteze case — which involved civilians with foreignnationality. Finally, the paper argues against the abolitionof military judicial systems.     

The Court-martial of Corporal Payne and Others and the Future Landscape of International Criminal Justice

The court-martial of Corporal Payne and others involved thefirst charges brought under the International Criminal Court(ICC) Act in the United Kingdom, and led to the first Britishsoldier ever to be convicted for a war crime under internationallaw. But the significance of the case extends far beyond itsnational implications; it represents an important illustrationof the national-level accountability heralded by the ICC regime.This article critically examines the court-martial of CorporalPayne and others, and uses this analysis as the basis of a broaderexploration of the contrast between domestic courts-martialand international courts as fora for trying international crimes.The final part of the article explores the potential significanceof that dichotomy for the future landscape of internationalcriminal justice.     

Contrasting Strategies within the War Crimes Trials of Kesselring and Wolff

This article compares the different ways in which, during the post-war decades, the Allied war crimes trials programme responded to the war criminality of two prominent German officials: Field Marshal Albert Kesselring and SS General Karl Wolff. It explores the question of why Wolff, whose complicity was arguably much greater than that of Kesselring, received more favourable treatment, and the role of various political and geo-political factors, including those influencing the interventions of US intelligence officials, as explanations for this apparent legal discrepancy. Dr. Kerstin von Lingen is a researcher at the Centre for Studies on Experiences in War (SFB 437 “Kriegserfahrungen”) at Tubingen University, Germany; Dr. Michael Salter is Professor of Law at The Law School, University of Central Lancashire, United Kingdom.     

Vagueness in Progress: A Linguistic and Legal Comparative Analysis Between UN and U.S. Official Documents and Drafts Relating to the Second Gulf War

This paper is based on a doctoral thesis which aimed at investigating on whether the use of strategic vagueness in Security Council resolutions relating to Iraq has contributed to the breakout of the 2002–2003s Gulf war instead of a diplomatic solution of the controversies. This work contains a linguistic and legal comparative analysis between UN and U.S. documents and their drafts in order to demonstrate how vagueness was deliberately added to the final versions of the documents before being passed, and thus strategically used vagueness has played a crucial role in UN resolutions related to the outbreak of war in Iraq, and in relevant legislation produced by the United States for its Congressional authorisation for war. The comparative analysis between S/RES/1441(2002) and US legislation has evidenced that that there would have been diplomatic solutions to the Iraq crises which were not synonymous of light-handed intervention against Iraq, but deliberately vague UN wording allowed the US to build its own legislation with a personal interpretation implying that the UN did not impede military action.     

Law and Morality at War

Through a critical engagement with Jeremy Waldron’s work, as well as the work of other writers, I offer an account of the relative scope of the morality of war, the laws of war, and war crimes. I propose an instrumentalist account of the laws of war, according to which the laws of war should help soldiers conform to the morality of war. The instrumentalist account supports Waldron’s conclusion that the laws of war justifiably prohibit attacks on civilians even if it turns out that some civilians lack a moral right not to be killed. Importantly, the instrumentalist account also offers what Waldron thinks impossible: a non-consequentialist defense of the failure of the laws of war to prohibit the killing of nonthreatening combatants. Finally, I argue that new war crimes can be broader than the morality of war as well as established laws of war and that many of the arguments for defining war crimes more narrowly than either the morality of war or the laws of war are unconvincing. In all of these ways, I hope to carry forward Waldron’s project of exploring the relationship between law and morality in war.     

Forest offences in 21st Century Turkey (with the example for the offender and trial period of illegal use of the forests in Istanbul)

Turkey's forests are under supervision and control of the state. The applicable Forestry Law decides which acts would be considered as forest offences and the punishment for them. In the study, the acts described as crimes have been explained by considering them within the framework of criminal law. Misdemeanors have been excluded and only crimes have been examined. Major forest offences have tried to be explained through statistical data and information related to perpetrators of the crime; the trial period and court judgments have been presented as a result of file observations in İstanbul. It has been observed that the increase in forest offences in Turkey changes depending on the country's economic structure and the changes in legislation. These offences have also been found to be in decline as of late. It can be stated that adjudications have been concluded more immediately. However, there are still doubts about the penalties' not being deterrent enough.     

Realising the Potential of the International Criminal Court: The African Experience

To date efforts of the International Criminal Court (ICC) toeradicate impunity for international crimes have been focussedin the African region. With arrest warrants now issued in relationto the situations in the Democratic Republic of Congo and Ugandaand the surrender of one individual to the Court, this articleprovides a timely examination of the efforts of African Statesto adopt legislation to provide for cooperation with the ICCand the prosecution of ICC crimes in national courts. The articledemonstrates that despite their willingness to make use of theICC system for prosecutions, African States, reflecting thegeneral trend in other regions, have made very little progressin implementing the Rome Statute. The article also examineshow the ICC has conducted its investigations in light of thelack of such implementing legislation.     

<Emphasis Type="Italic">The Lesser Evil Dilemma for</Emphasis> Sparing Civilians

The rule I call ‘Civilian Immunity’ – the rule that prohibits targeting civilians in war – is the heart of the accepted jus in bello code. It prohibits targeting (viz., intentionally killing) civilians in a wide variety of war circumstances. Seth Lazar's brilliant book, Sparing Civilians, attempts to defend Civilian Immunity. In this essay I show, first, that his ‘Risky-Killing based argument’ fails to provide civilians with the robust protection Sparing Civilians promises. I argue, secondly, that the moral framework that Sparing Civilians employs, a moral framework that centralizes the Deontological Clause (stating that one's intentional killing is worse than enabling others to kill), leaves the immunity of civilians against Leaders unexplained.     

Cruelty and the Imperative to Wage Virtuous War

This paper considers the newly imperative force of the jus ad bellum, when it acts as a guarantee of the moral. An emotive sense of cruelty now mobilizes as legitimate some forms of virtuous killing, whether in the 'war on crime' waged upon a country's own citizens, or in the conduct of war upon other nations. The recoil against cruelty authorizes virtuous wars against 'brutal' regimes, and underwrites the imposition of maximal penalties for atrocious crimes. Cruelty obliges military force, that naked arm of sovereign power, to be placed at the service of an ailing humanity. This turn towards a pitiful virtuous war suggests a jurisprudence critical of those intimations of cruelty that tend to secure compassion as an authorizing stamp, or guarantor, of the moral.     

Who is Afraid of Punishing Aggressors?: On the Double-Track Approach to International Criminal Justice

Since 1947, no alleged crime of aggression has ever been prosecuted,in spite of the many instances in which states have committedacts of aggression with the Security Council sometimes deemingan act to be such. A dual system of international criminal justicehas taken shape slowly. Crimes consisting of serious violationsof jus in bello, that is, war crimes, usually considered lessegregious than the crime of aggression, have been severely prosecutedand punished, in particular by the International Criminal Tribunalfor the former Yugoslavia (ICTY). Yet, the ‘supreme internationalcrime’ — aggressive war — mostly committedby political and military authorities of major powers, has beenignored and its perpetrators still occupy the summit of internationalpower undisturbed.