Occupational Hazards of Soldiers – A Critique of Section 3 of the Overseas Operations (Service Personnel and Veterans) Bill 2019-21

Being a soldier is not for the faint-hearted. There is no shortage of written and audio-visual accounts of the horrors of war and soldiers’ physical and psychological suffering. It becomes worse when the enemy is nowhere to be seen and yet everywhere, the environment is littered with improvised explosive devices, landmines and booby-traps, and there is no safe place. Anguish, fear, anger, frustration are all emotions that a soldier must conquer. In the UK, the trial of Marine A (Sergeant Blackman) who shot dead a wounded Afghan fighter (see here and here) provided for an intense debate on the subject.

This is exactly the type of setting that the Overseas Operations (Service Personnel and Veterans) Bill 2019-21 covers in Section 3 which stipulates that, in ascertaining whether to bring or continue criminal proceedings against a member of the armed forces deployed abroad, the prosecutor ‘must give particular weight to’ (Section 3(1)) ‘the conditions the person was exposed to during deployment… including their experiences and responsibilities’ (Section 3(2)(a)), the latter being exemplified by situations where soldiers are ‘being exposed to unexpected or continuous threats, being in command of others who were so exposed, or being deployed alongside others who were killed or severely wounded in action’. Section 3(3) adds that ‘the prosecutor must have regard to the exceptional demands and stresses to which members of Her Majesty’s forces are likely to be subject’ (emphasis added). The legislator seems to presume that such conditions ‘tend to reduce the person’s culpability or otherwise tend against prosecution’ (Section 3(1)). The core of the question is whether a soldier should get away with violating the law because he/she was caught in a dangerous, stressful situation that affected him/her adversely. Clearly, the answer is no.

Situations of Exceptional Demands and Stresses

First, soldiers are not viewed as ‘normal’ individuals. They have committed themselves to a job that may lead to a loss of limb and life and have accepted ‘the occupational hazard of dying’ (para 84). They agree to undertake dangerous and life-threatening actions and are per se ‘being exposed to unexpected or continuous threats’. In fact, members of the armed forces have a legal obligation to accept the danger (see eg Wehrstrafgesetz, §6), the reason being that ‘[i]n specific dangerous situations, a higher degree of risk-taking is to be expected of soldiers who have been trained for life-threatening situations’ (Werle & Jessberger, 244; see also Oellers-Frahm & Specht, 408). A special duty is created because ‘[s]oldiers, by the very nature of their occupation, must have envisaged the possibility of violent death in pursuance of the cause for which they fight’ (Joint Separate Opinion in Erdemovic, para 84).

Second, because members of the armed forces find themselves in circumstances where a higher level of accepted risk constantly arises they are meant to react differently, as opposed to civilians, when faced with ‘unexpected or continuous threats’ or to cope (better) with ‘being deployed alongside others who were killed or severely wounded in action’. They are expected to be able to make the right decision and be less susceptible to such situations (see Yee, 299; Grant, 14). Displaying a heightened reasonableness is demanded from them (Gestapo Informer Case, 202), a position reiterated in the Joint Separate Opinion in Erdemovic: ‘soldiers or combatants are expected to exercise fortitude and a greater degree of resistance to a threat than civilians, at least when it is their own lives which are being threatened’ (para 84; see also Yee, 298). They are required to show a certain level of resistance to threats (whether imminent or latent), emotionally loaded environments, or even coercion.

Regarding the third example mentioned in Section 3(2), that of ‘being in command of others who were so exposed’, the law is even stricter. As Werle & Jessberger explain, ‘[i]n determining the duty to assume danger, the perpetrator’s position in the military hierarchy must be taken into account’ (244). Higher standards of behaviour are expected of a commander who under Article 87 AP I  is obliged to ensure that persons under his/her command know the law of armed conflict, and to prevent, suppress and report breaches of the Geneva Conventions and AP I. Furthermore, a commander can be held responsible under Article 28 ICC Statute for crimes committed by his/her subordinates. It would seem very odd, to say the least, to use a person’s position as a commander, distressed by the plight of persons under his/her command, to justify his/her own lack of abidance by the law when he/she is the person meant to ensure compliance with it!

As such, the situations envisaged in Section 3 of ‘exceptional demands and stresses’ are highly unlikely to be viewed as some forms of excuse or justification for an alleged unlawful act perpetrated by a member of the UK armed forces and thus to be considered as ‘tend[ing] to reduce the person’s culpability or otherwise tend[ing] against prosecution’ under international criminal law.

Regardless of length of service, rank or personal resilience

Section 3(3) of the Bill adds that in assessing the situations the Prosecution should disregard the length of service, rank or personal resilience of a member of the armed forces. This appears to contravene international criminal law standards. Two justifications can be adduced for this.

First, international criminal courts make allowance for ‘individual circumstances’ (Article 78(1) ICC Statute; Rule 145 ICC Rules of Procedure and Evidence) because ‘[c]rimes which in abstract terms might appear analogous are distinguished in actual fact, inter alia, by the circumstances attaching to their commission, the personality and the individuality of the perpetrator […]’ (Erdemovic, para 41). Even if one accepts that soldiers are prepared for the hardships of war, every soldier will not have the same level of appreciation of the dangers of warfare or ability to cope physically/mentally with the situation. Negating individual circumstances, as the Bill does, goes against established legal standards.

Second, when examining the individual circumstances of the accused as mitigating/aggravating factors at the sentencing stage, courts pay attention to rank and leadership level (Erdemovic, para 95; Stakić, para 918; Tadic, paras 56-57), length of service and years of experience (Hostage Case, at 1317) or the personality of the accused (Stakić, para 925; Erdemovic, paras 102-111). The ICC Rules of Procedure and Evidence and jurisprudence espouse a different approach inasmuch as ‘individual circumstances of the accused’ relate to ‘the age, education, social and economic situation of the convicted person’ only (Lubanga, para 54). As a result, a person’s rank is now examined, still at the sentencing stage, but as part of the gravity of the crime (Ntaganda), which further supports the viewpoint that a soldier’s rank ought to be borne in mind when assessing whether to initiate criminal proceedings.

Adverse Effect

Not only must the soldier be in one of the aforementioned settings but he/she must also be adversely affected by it as Section 3(2)(a) refers to ‘the adverse effect (or likely adverse effect) on the person of the conditions the person was exposed to’. Amongst the ‘exceptional demands and stresses’ defences available under the ICC Statute are: duress (Article 31(1)(d)) and mental disease or defect (Article 31(1)(a)), the Bill only referring to the latter.

The Bill stipulates that the adverse effect can be on the soldier’s (a) ‘capacity to make sound judgements or exercise self-control’ or (b) ‘mental health’ at the time of the alleged conduct (Section 3(4)). The effect mentioned in (a) is reminiscent of Article 31(1)(a) ICC Statute which expressly refers to the destruction of a person’s ‘capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law’. Yet, the threshold set in the Bill is much lower than that under the ICC as Article 31(1)(a) requires the destruction of that capacity and not only some effect on it. In fact, (a) seems closer to the diminished mental responsibility plea under Article 67(B)(i)(b) ICTY Rules of Procedure and Evidence and the Delalic (Appeal) jurisprudence which refers to the substantial impairment of a person’s mental responsibility (para 592; Delalic, para 1159). Whether the threshold in the Bill raises to that of substantial impairment is doubtful. Even if it did, it is likely that it would not be invoked as a defence but rather as a mitigating factor for sentencing purposes. After all, Rule 145(2)(a)(i) of the ICC Rules of Procedure and Evidence gives the ICC the possibility to consider ‘substantially diminished mental capacity’ as a sentencing factor, a position that had been adopted by the ICTY (Delalic (Appeal), para 588; Vasiljević, para 282) which usually treated it in a rather curt manner (Jelisic, para 125; Delalic (Appeal), paras 592-594).

As for the defence of ‘mental health’, it is unknown to international criminal law. ‘Mental health’ issues might count as a mitigating factor since courts have agreed to consider, though not necessarily accepted, traumatic experience suffered before (Ntaganda, para 210), during (Todorovic, paras 93-95), and after (Delalic, paras 1258 and 1270) the events.

Conclusion

Section 3 of the Bill appears to fail to satisfy international criminal law standards: the ‘exceptional demands and stresses’ do not, per se, excuse or justify a soldier’s unlawful act; the adverse effect on the soldier is set out too low to be regarded as a defence, though it could be viewed as a mitigating factor for sentencing purposes; and the individual circumstances of the soldier must be duly explored. The consequence of a British prosecutor deciding not to initiate or continue proceedings on the basis of all these flawed, low thresholds could be interpreted by the International Criminal Court ‘as the decision result[ing] from the unwillingness […] of the [UK] genuinely to prosecute’ (Article 17(1)(b) ICC Statute) and so declare admissible a case against a British soldier who would then have to face the ICC rather than national courts.