Global Policy Forum

By By Adam Roberts *

Would these have come under ICC jurisdiction?

1968 My Lai massacre of Vietnamese villagers by US troops
Maybe (only if killings were planned or if ICC dissatisfied with US investigations)

1982 Royal Navy sinking Argentine warship, Belgrano
No (target was legitimate)

1991 US bombing of Amariya bunker in Baghdad
No (civilian deaths not intended)

1991- Rebel killings and amputations in Sierra Leone
Yes

1992-9 Ethnic cleansing in Bosnia, Croatia and Kosovo
Yes

1994 Rwandan genocide
Yes

1999 Kosovans killed by Nato bombs
No (civilian deaths not intended)

One of the advantages of the delayed elections is that the government will not have to shelve the bill for the international criminal court (ICC), which had its second reading in the Commons yesterday. The ICC has become controversial because, as the Guardian's Richard Norton-Taylor reported earlier this month, top military commanders are concerned that it might prosecute British soldiers for war crimes.

It would be absurd to suggest that there are no problems for the UK's or other states' armed forces, but these need to be kept in perspective. Encompassing crimes committed in international and civil wars, and also genocide and crimes against humanity regardless of whether they are connected with a war, it basically consolidates existing provisions of international law. Nor is the possibility that UK citizens might be tried for such crimes in non-UK courts revolutionary. When Britain ratified the 1949 Geneva Conventions in 1957, and the Additional Protocol I in 1998, parliament accepted that any persons committing grave breaches could be brought to trial in the courts of any state party.

The underlying fear of all the critics is that since the ICC's sole purpose is prosecuting war crimes, and it will not be under the direct supervision of any national government, it may pursue cases without understanding the dilemmas faced by soldiers engaged in armed conflicts and peacekeeping operations. This perception of the law seems to be behind the concern of the "senior defense source" reported in the Guardian that future rules of engagement could prevent a British warship from attacking a hostile warship until it was too late. However, it is not obvious that the law prevents robust rules of engagement. My experience of lecturing to senior UK officers suggests that they take a positive view of the laws of war. In both the 1991 Gulf war and the 1999 Kosovo conflict, western armed forces found that the law assists in the professional and effective conduct of military operations.

In Kosovo, the actions of all the Nato forces were subject to the Yugoslav tribunal, which has stronger powers of investigation and prosecution than are provided for the ICC. Its committee to investigate the Nato bombing campaign published a detailed report last June recommending that no action needed to be taken. The Rome Statute, establishing the ICC contains numerous safeguards to ensure that the ICC will not shoot from the hip. Under Article 8, war crimes would generally not be prosecuted unless "committed as part of a plan or policy or as part of a large-scale commission of such crimes". Article 16 enables the UN security council to defer an ICC investigation or prosecution. Article 17 provides that a case is inadmissible where a state is genuinely carrying out an investigation or prosecution itself.

In reality, for Britain and other states, the main effect of the ICC may be to encourage the effective operation of national procedures. One particular worry raised in the Lords debate about the bill was that the Rome Statute's definitions of war crimes include "subjective phrases", such as "intentionally" launching an attack "in the knowledge" that it will cause excessive damage. However, such words were included in treaties precisely to protect soldiers from prosecution where civilian deaths were clearly not intended.

As the table suggests, the ICC is likely to deal as much with episodes in which civilians and prisoners of war are murdered and mistreated by those who have them in their power as with combat operations. That has been the pattern of many major efforts at international justice, including the Nuremberg tribunal of 1945-6 and the Yugoslav and Rwanda tribunals since 1993. One justification for this pattern is that the worst crimes are often those committed against defenseless individuals.

The biggest worry is that the US, with almost paranoid concerns about the prosecution of its soldiers, will not ratify the statute. For the ICC to work, US support is vital. The case of the Yugoslav tribunal is instructive: it only really became effective from 1995, when the US and allies got engaged on the ground in Bosnia. It is possible that the US will find a way to collaborate with the ICC: in practice, the US often observes provisions of treaties (including on the laws of war) that it has not ratified. The US armed forces do take the laws of war seriously, and are slightly more advanced than the UK in the preparation of a new tri-service manual taking account of the many new developments of the law.

The ICC bill before parliament is far from perfect. In the matter of jurisdiction it is actually more cautious than the 1957 Geneva Conventions Act. As currently worded, the bill applies only to UK residents. It should be amended so that the threat of being taken to the ICC can apply to all those present in the UK. Nevertheless, the bill merits support. This modest measure addressing a large problem - effective implementation of the laws of war - is compatible with the interests, traditions and existing legal obligations of the armed forces.

Adam Roberts is Montague Burton professor of international relations at Oxford University and co-editor of Documents on the Laws of War, OUP