Most people hear the words "war crime" and think of the Nuremberg Trials or Slobodan Milosevic's trial, but that may soon change. Up till now, British soldiers have never been charged under this highly symbolic label. However, in July the British Attorney-General reversed this trend by announcing that three soldiers were being charged with "war crimes under the ICC Act [of] 2001". That announcement made Britain the first member of the International Criminal Court (ICC) to charge its own citizens under such law.
The trial - expected to begin in April 2006 - will be based on charges of "inhuman treatment" related to events, including the death of a detainee, Baha Musa, that are alleged to have taken place in the southern Iraqi city of Basra in September 2003. "Inhuman treatment" is considered a war crime - punishable by life in prison - under the British law on the ICC, which takes its definition from the Rome Statute, the treaty that created the ICC in July 2002. Even though the soldiers are not facing heavier sentences than before, the symbolic nature of that charge has stirred up a maelstrom among military officers, who are protesting what they see as an attempt to be "politically correct" that risks scarring army morale.

"This is simply the most up-to-date legislation," an official at the British Ministry of Defense responded, pointing out that offenses under the ICC Act have existed in British law since the 1950s. A spokeswoman for the Attorney-General also refuted suggestions of political bias. "All charges are brought independently by applying two tests - is a conviction likely based on the evidence, and is it in the public's interest to bring charges? It is standard practice to apply the most recent legislation," she said.

Stuart Alford, a barrister in London, concurred saying he believed the accused would have faced similar charges even if Britain had never enacted its ICC legislation. "I don't have the impression that these charges are emerging only because there is another court where they could be brought," he said, in reference to the ICC's authority to try a case should a member country be unable or unwilling to do so. Yet for Christopher Hall, senior legal adviser with Amnesty International's International Justice Project in London, the charges "change the tone of the debate because they send a clear message to the armed forces that [inhuman treatment of prisoners during wartime] isn't something that's going to be swept under the rug."

The ICC - one part of a system

In an earlier statement to the BBC, human rights lawyer Geoffrey Robertson said that the use of the ICC Act demonstrated that "the British Army is not likely to send any of its soldiers to [the ICC in] The Hague because the Army is fully equipped and totally determined to investigate the allegations of misconduct." The principle of complementarity - in which national courts preempt ICC involvement by prosecuting Rome Statute-defined crimes - was a primary focus of the keynote address by ICC Prosecutor Luis Moreno Ocampo at a 30 September conference in Washington. "The Rome Statute is about national systems - the ICC is just a one part," of the treaty's enforcement, he said. "The most important developments are not happening in The Hague, but in the [member] states. This is how we will succeed in getting this tiny court to make a difference in the world," he added.

Aryeh Neier, president of the Open Society Institute - a non-profit organization created by the billionaire George Soros - also addressed this issue. "Complementarity will become more significant as prosecutions are brought [by the ICC] and [national] governments recognize that it will be better for them to have the matter tried in domestic courts. I don't think we can expect this to become a significant factor until somewhat later on, but I do expect that this will be a healthy development as the work of [the ICC] moves forward," he said.