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 British Justice,
War Crimes and
Human Rights Violations

The Age of Accountability

Susan L. Kemp
British Justice, War Crimes and Human Rights
Violations
 Susan L. Kemp

British Justice, War

Crimes and Human
Rights Violations
The Age of Accountability
Susan L. Kemp
Edinburgh, UK

ISBN 978-3-030-14112-7 ISBN 978-3-030-14113-4 (eBook)

https://doi.org/10.1007/978-3-030-14113-4

Library of Congress Control Number: 2019932951

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer
Nature Switzerland AG 2019
This work is subject to copyright. All rights are solely and exclusively licensed by the
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now known or hereafter developed.
The use of general descriptive names, registered names, trademarks, service marks, etc. in this
publication does not imply, even in the absence of a specific statement, that such names are
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The publisher, the authors and the editors are safe to assume that the advice and
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To my family.
 Acknowledgements

Very special thanks are due to the group of experts listed below who
generously agreed to share their knowledge and perspectives on the chal-
lenges faced by the service and civilian justice systems, based on first-
hand experience.
I am also enormously grateful to David Benest, Alan Brecknell, Refik
Hodzic, Paul O’Connor, and Paul Seils. During the research phase, Iain
Cobain, Simon Fowler, Niall Murphy and the staffs of the Imperial War
Museum, the National Archive and Liddell Hart Library provided inval-
uable orientation on sources. Palgrave Macmillan provided generous
guidance throughout the process and their anonymous academic review-
er’s comments on the original proposal and final draft were very helpful.
Hugh Jackson’s meticulous editing and proofreading vastly improved the
text. Any remaining errors are of course my own.
I am greatly indebted to colleagues, clients and witnesses over the
years from whom I have learned and continue to learn. Finally, thanks to
my husband, Paul Seils, for his constant support, enthusiasm and insights
into armed conflict, human rights and peace building.
Unless attributed to others, opinions and recommendations on legal,
policy or factual matters here are my own and do not reflect the views of
any organisation for which I currently work or have worked.

Edinburgh, UK
2019

vii
viii    Acknowledgements

Experts
The following group of experts provided insight and reflections on the
topics discussed in Chapters 5–7. Between 2016 and 2018 inclusive,
all except Interviewee 007 (see below) agreed either to an individual
semi-structured interview or to provide a written response to questions.
Several provided detailed responses to follow-up questions in writing.
Colonel (retired) David Benest OBE is currently a military histo-
rian specialising in counter-insurgency. He previously served as Deputy
Director at the Defence Leadership and Management Centre of the UK
Defence Academy and as Director of Defence Studies (Army). He served
for 37 years in the British Army and was the Commanding Officer of
2nd Battalion Parachute Regiment. He is a veteran of UK operations in
the Falkland Islands and Northern Ireland and was a counter-insurgency
adviser in Afghanistan (Cited as Interviewee 005).
Professor Charles Garraway CBE is a military and international law
expert. He served for 30 years in the UK Armed Forces as a legal officer
in Army Legal Services, including as a prosecutor and an adviser on
the law of armed conflict and operational law and was deployed in the
Balkans, Sierra Leone, Afghanistan and Iraq. He is currently a fellow at
the Human Rights Centre, University of Essex, and his most recent aca-
demic work focusses on international humanitarian and human rights law
in armed conflict (Cited as Interviewee 001).
Bruce Houlder CB QC DL is a Recorder of the Crown Court of
England and Wales (judge), Queen’s Counsel and Representative
Deputy Lieutenant for the London Borough of Hillingdon. He was
the first Director of Service Prosecutions (2009–2013) in the UK. He
is a Bencher of Gray’s Inn, a tutor judge for the Judicial College and
is currently a member of the Law and Criminology Advisory Panel for
Sheffield Hallam University (Cited as Interviewee 003).
Dr Alan Mitchell is a member of the European Committee for the
Prevention of Torture and a Commissioner of the Scottish Human
Rights Commission—part of the UK National Preventive Mechanism.
He is a specialist in torture prevention and human rights in places of
detention, and in medical evidence of torture and cruel, inhuman or
degrading treatment or punishment. He is a practising GP with NHS
Scotland and regularly appears as an expert witness in extradition cases
(Cited as Interviewee 009).
 Acknowledgements    ix

Brigadier (retired) Anthony S. Paphiti is Visiting Research Fellow at

Bournemouth University and is the founder of ASPALS legal consul-
tancy. A lawyer with Army Legal Services for 25 years, he had day-to-
day responsibility of the Army Prosecuting Authority and was the first
legal adviser to NATO’s HQ Allied Rapid Reaction Core, providing legal
support to the commander and legal input to the Operational Plan and
Rules of Engagement underpinning NATO’s deployment to the Former
Yugoslavia. He has also served as a Senior Crown Prosecutor with the
Crown Prosecution Service (Cited as Interviewee 002).
Interviewee 007 is a retired Senior Detective Superintendent of the
Metropolitan Police Service who agreed to an informal discussion on
civilian investigations of alleged crimes involving UK forces personnel.
Interviewee 008 is a leading academic scholar specialising in legacy
issues, transitional justice, redress mechanisms and historical narrative in
Northern Ireland.
 Contents

1 Introduction 1
Who Is This Book For? 1
What Is Accountability? 2
Why Investigations? 3
Why Focus on Military Misconduct? 4
A Note on Materials 5

2 The UK at a Crossroads 11
The ECHR: In, Out or On the Fence? 11
Repealing the Human Rights Act 12
A British Bill of Rights? 14
Withdrawal from the ECHR? 15
Widening the Accountability Gap 16
The Accusation of “Judicial Creep” into Military Affairs 17
The ICC and Alleged UK Crimes 22
The UK Reputation as a Rule of Law Exporter 24

3 International Obligations to Investigate 41

The Law of Armed Conflict 45
Laws Applying to the UK That Originated Before 1949 48
Laws Applying to the UK that Originated Since 1949 51
Who Does International Law Protect during War? 53
Occupation 54

xi
xii    Contents

Detention 55
The UK Approach to IHL and War Crimes 56
The Future of IHL Compliance 57
International Criminal Law 58
Unlawful Killing and Mistreatment in Armed Conflict
and Military Occupation 59
The Rome Statute of the International Criminal Court 62
Torture as an International Crime 63
Can the UK Derogate from Its Humanitarian
and Criminal Law Obligations? 65
International Human Rights Law 65
Unlawful Killing and Mistreatment as Human Rights
Violations 68
Not All State Killings Are Unlawful 69
A Free-Standing Obligation to Investigate Certain
Pre-EHCR Deaths 70
Cruel, Inhuman and Degrading Treatment or Punishment 71
The “Hooded Men” Case 72
Human Rights in Armed Conflict and Occupation 74
What Does the Principle of Lex Specialis Mean for Human
Rights During War? 76
Can the UK Derogate from Its Human Rights Obligations? 78
What about peace-keeping operations 81
Would Derogation Affect Reparations for Victims? 83
Duties to Investigate 83
Sources 83
When Is the Duty to Investigate Triggered? 85
The International Law of State Responsibility 86
Legal Requirements for Investigations 89
The ECHR: Effective Investigation 89
Other Human Rights Instruments and the Accountability
Gap 91
Useful International Guidance 91
Do Victims Have a “Right to Truth”? 93
The Reasonableness Standard for Seeking and Securing
Evidence 94
Investigating in Challenging Circumstances 96
A Way Forward After the Jaloud Decision? 101
IHL and ICL Investigation Requirements 103
 Contents    xiii

Are International Humanitarian Law Investigation

Standards Lower? 107
The RMP’s Pragmatic Approach 108
Non-binding Instruments 109
Peremptory Norms 109

4 Domestic Law 143

Three UK Legal Systems 143
The UK Approach to International Law 144
Domestic Criminalisation of International Crimes 145
Gaps in the Statutory Framework 148
Forms of Individual Criminal Responsibility
(“Modes of Liability”) 150
The Mental Element 151
Defences 153
Notable Differences Between Rome Statute and Domestic
Defences 154
Intoxication and Duress 154
Superior Orders 154
Use of Force in Self-Defence in Situations Not Amounting
to Armed Conflict 154
Diminished Responsibility 155
A Domestic Law Defence to Torture 156
The Effect of Combat Stress and Trauma on the Mental
Element and Defences 157
The Alexander Blackman Case 159
Prescription (Time Limits) and Immunities 160
The Human Rights Act 161
Judicial Review and the Importance of Legal Aid 163
Accessing Information and Using It as Evidence 165
The Public Records Act 1958 166
Military Records 166
Service Police Investigation Records 168
Disclosure: The Freedom of Information Act 169
Official Secrets Acts 170
Whistle-Blowers: The Public Interest Disclosure Act 1998 171
Public Interest Immunity Certificates: Lawful Withholding
of Evidence 171
xiv    Contents

Non-Criminal Inquiries 172

Inquests: Investigation of Deaths 172
Public Inquiries 174

5 Criminal Investigations 191

Setting the Scene: The Responsible Authorities 191
The British Army 191
Military Justice 192
Basic Service Law and Policy Today 193
The Directorate of Judicial Engagement Policy (DJEP) 195
System-Wide Oversight and Quality Control 196
The MOD Confidential Hotline 196
Service Offences 197
Civilian or Military Proceedings? 197
The Role of Commanding Officers 199
Key Decisions: Initial Classification of Conduct
and the Scope of Preliminary Inquiries 201
Commanding Officers Must Refer Serious Offences
to Service Police 201
The Statutory Duty Under s.113 AFA 2006 to Refer
Schedule 2 Offences 202
The Statutory Duty Under s.114 AFA 2006 to Refer
Prescribed Circumstances 204
What Happens After a CO Refers a Case to Service Police? 206
When can the CO Charge Offences and Dispose of Cases? 207
Charging 208
Summary Hearings for Minor Service Offences:
A Criminal Trial 208
How Are COs Supported to Comply with Their Duties? 209
Formal Training Materials 211
Oversight of CO Decisions 212
The Future 213
Civilian Police 215
The War Crimes Team: Part of Counter-Terrorism
Command 216
Guidelines for “Scoping”—A Narrow Approach 217
A Different Approach to Crime Scene Management? 219
Investigation Skill Levels 220
Charging 220
 Contents    xv

Caseload, Services and Training 221

Resource Planning 222
The Royal Military Police 223
Structure 223
Overall Aim 225
Initial Classification of Offences 225
The Military Police Investigative Doctrine MPID 227
Evidence Gathering and Analysis 229
Operational Duties 231
“Moral Courage”: Written into the Job Description 232
Staffing to Meet These Investigative and Operational
Functions 232
Workload 234
Key Decisions and Decision-Makers 235
The Crime Executive Group 237
Duty to Consult DSP in Certain Cases 237
Related Cases and Patterns 239
Compiling and Passing on the Case Papers 240
The Duty to Record, Retain and Reveal to the DSP
“Material Relevant to an Investigation” 241
Sensitive Material 243
Independence and Impartiality: Recent Reforms 245
Oversight Bodies and Inspection 248
Recent Problems Identified by Inspectors and Addressed
by the RMP 251
Strengthening the Inspection System for Investigations
of Alleged War Crimes 255
Temporary Investigation Bodies: Iraq and Afghanistan 256
After the Investigation 260
Civilian or Military Prosecutions? 260
Private Prosecutions in the Civilian Justice System 263
The Service Prosecuting Authority 264
Independence 265
Deciding to Prosecute, or Not 266
Choosing the Charges 269
Pressure from Ministers, Politicians and Media? 271
The Threshold Test for Prosecution 273
xvi    Contents

The Full Code Test: Evidential Sufficiency and the Public

Interest 273
The Service Interest Test: Impact on Efficiency
or Operational Effectiveness 275
The Director of Service Prosecutions: Key Powers 276
Challenging a Decision Not to Prosecute 280
New Developments Can Reactivate the Duty to Investigate:
The Silverbridge Case 284
Oversight Inspections of Prosecution Bodies 286
Sentencing 287
The Operational Legacy Support Team 289

6 Investigation Challenges 313

Investigating in Conflict, Occupation and Other Operational
Contexts 313
The Need for Clarity on the Legal Relevance of Operational
Context 313
Practical Obstacles Arising from Operational Context 314
The RMP Approach: No Dilution of Professional Standards
on Operations 315
Current Technical Guidance 318
Operational Limitations on Evidence Gathering: Who
Decides and How? 318
Some Obstacles Are Not Unique to Operational Contexts
and Some Are Self-Inflicted 321
Accessing Sensitive Information 325
Wider Challenges for the Service Justice System That Can
Impact Any Investigation 328
Self-Regulation, Independent Regulation or a Compromise? 329
RMP: Not Only Practical Challenges but Also Human Ones 331
Retaining Experienced Police Investigators and Service
Prosecutors 334
The Impact of Rank 336
Cooperation with the Service Justice System: Carrot
and Stick? 336
“Regimental Amnesia” 337
Crimes against the Administration of Justice 338
Evidence, Due Process and the Passage of Time 340
 Contents    xvii

A Downside to Media Coverage and Campaigns 346

A Superfluity of Obstacles: Investigating Alleged Crimes
on Mount Longdon 350
The Challenge of Multiple Mechanisms and Expense of Delay:
Northern Ireland 362

7 The Future 383

International Law 384
Domestic Law 386
Criminal Investigation Standards 387
Strengthening Independent Inspection 392
Institutional Practices 393
Multiple Mechanisms 395
Accessing Information 395
Investigative judges? 398
Openness about War and Trauma 398
Politics and Human Rights 401
A Statute of Limitations? 401
Media Coverage 403
Political Responses to Justice System Challenges 403
The Need for Evidence-Based Approaches to Any Future
Reform 404
Exporting the Rule of Law 408
The European Scene 409
Trust in the System 410
Crime Prevention and the Role of Leadership 413
Preventing Mistreatment of Captured Persons Overseas 415
The Human Factor 417

Appendix 425

Selected Bibliography & Further Reading 469

Index 479
 About the Author

Susan L. Kemp has investigated war crimes and genocide in the field
acting on behalf of victims bringing private prosecutions in Guatemala
and as a criminal investigator with the International Criminal Court
during her legal career. She has also represented victims of war crimes
in domestic criminal and international human rights litigation. Later
she was employed by the United Nations in New York, as well as state
donors and nongovernmental organisations to provide technical assis-
tance on investigating and prosecuting armed conflict-related crimes to
police, prosecutors, judges, defence lawyers and victims groups in coun-
tries emerging from or enduring conflict.

xix
 Abbreviations and Acronyms

ACPO Association of Chief Police Officers

AFA Armed Forces Act
AG Attorney General
ALS Army Legal Services
BBOR British Bill of Rights
Brexit United Kingdom’s Exit from the European Union
CIDTP Cruel Inhuman or Degrading Treatment or Punishment
CMAC Court Martial Appeal Court
CMP Closed Material Procedure
CO Commanding Officer
CoC Chain of Command
CPERS Captured Persons (prisoners of war, internees and detainees)
CPIA Criminal Procedure and Investigations Act 1996
CPS Crown Prosecution Service
DPP Director of Public Prosecutions
DSP Director of Service Prosecutions
ECHR European Convention on Human Rights
ECJ European Court of Justice
ECtHR European Court of Human Rights
EU European Union
FOIA Freedom of Information Act
GC Geneva Convention (I, II, III, IV)
GPD General Police Duties
HET Historical Enquiries Team in Northern Ireland
HMCPSI Her Majesty’s Crown Prosecution Service Inspectorate

xxi
xxii    Abbreviations and Acronyms

HMICFRS Her Majesty’s Inspectorate of Constabulary & Fire and Rescue

Services (formerly HMIC)
HRA Human Rights Act 1998
HRC Human Rights Committee
IAC International Armed Conflict
ICC Act International Criminal Court Act 2001
ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights 1966
ICJ International Court of Justice
ICL International Criminal Law
ICRC International Committee of the Red Cross
ICTY International Criminal Tribunal for the former Yugoslavia
IFI Iraq Fatality Investigations
IHAT Iraq Historic Allegations Team
IHL International Humanitarian Law
IHRL International Human Rights Law
IOPC Independent Office for Police Conduct (formerly IPCC)
JAG Judge Advocate General
JSP Joint Service Publication
LOAC Law of Armed Conflict
MOD Ministry of Defence
MPID Military Police Investigative Doctrine
MPS Metropolitan Police Service
NCO Non-commissioned Officer
NGO Nongovernmental Organisation
NIAC Non International Armed Conflict
PI Protocol Additional to the Geneva Conventions of 12 August
1949, and relating to the Protection of Victims of International
Armed Conflicts (1977)
PII Protocol (II) Additional to the Geneva Conventions of 12
August 1949, and relating to the Protection of Victims of Non-
International Armed Conflicts (1977)
PII Public Interest Immunity
PM(A) Provost Marshal (Army)
PME Post-Mortem Examination
PW, POW Prisoner of War
RMP Royal Military Police
RNP Royal Navy Police
RoE Rules of Engagement
RS Rome Statute of the International Criminal Court
SIB Special Investigation Branch
SIO Senior Investigating Officer
 Abbreviations and Acronyms    xxiii

SIR Shooting Incident Review

SJS Service Justice System
SPA Service Prosecuting Authority
SPLI Service Police Legacy Investigations
UN United Nations
UNCAT United Nations Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment
(Torture Convention) 1984
UNSC United Nations Security Council
VRR Victim’s Right to Review
WWII The Second World War, 1939–1945
 List of Figures

Fig. 1.1 Geography and terminology: GB and UK 6

Fig. 2.1 Engagement of UK Armed Forces 1946–2016 19
Fig. 2.2 UK support for United Nations inquiries and International
Criminal Court referrals following alleged violations
of international humanitarian and human rights law
in other countries 31
Fig. 3.1 Principal treaties: international humanitarian, human rights
and criminal law 43
Fig. 3.2 Conduct regulated by the law of armed conflict, human
rights and criminal law 111
Fig. 3.3 Major international guidance documents 112

xxv
 CHAPTER 1

Introduction

Who Is This Book For?

This publication is intended as an accessible resource for anyone
­interested in how international law applies to the UK’s1 armed forces
and how our institutions respond to allegations of unlawful conduct. No
prior knowledge of international law is required since it is important that
policymakers, journalists, rule of law practitioners, and lawyers, scholars
and students specialising in other fields or other countries’ experiences
can engage with this topic. I hope the book will encourage readers in the
UK, including forces personnel and the general public, to ask more ques-
tions of our policymakers and commentators who propose changes to the
way our laws, policies and institutions currently deal with alleged military
misconduct overseas. Decisions on these matters must be evidence-based
and that is more likely if the debate is depoliticised and democratised.
The next chapter will highlight current developments that throw UK
investigations into the spotlight, including Brexit and proposals for a
British Bill of Rights. Chapters 3 and 4 will familiarise readers with the
UK’s international obligations requiring investigation of alleged military
misconduct, how these are reflected in national law and the role that ser-
vice (military) law plays in regulating the conduct of UK armed forces.
We discuss UK “truth-seeking” efforts more widely, the pros and cons of
other mechanisms of investigation such as inquests and public inquiries,
and the challenges posed by domestic laws on freedom of information,

© The Author(s) 2019 1

S. L. Kemp, British Justice, War Crimes
and Human Rights Violations,
https://doi.org/10.1007/978-3-030-14113-4_1
2 S. L. KEMP

data protection and official secrets. Chapter 5 takes a tour of the roles
and powers of the individuals and institutions involved in criminal inves-
tigations, from commanding officers to specially trained civilian and mil-
itary police. Newly declassified documents (reproduced in the Appendix)
show the guidance given to investigators. We also look at what h ­ appens
after the investigation, including decisions not to prosecute. In
Chapter 6, the real-life challenges of investigation are discussed, with
input from UK experts, including former senior military and civil-
ian prosecutors, who provide reflections on the obstacles and advances
of recent years. We also look at some of the major investigations of the
post-1945 era, from post-war Germany to Iraq. We close with Chapter 7,
reflecting on the issues most likely to determine whether the UK can
meet the challenge of investigating these crimes.

What Is Accountability?
Accountability is common shorthand for responses to crimes and human
rights violations, but it has no universally accepted definition. It can be
seen variously as a legal, moral and practical concept. At its narrowest,
it means holding individuals legally responsible for their behaviour and
imposing some form of sanction on them if that is warranted. In its wid-
est sense, it is sometimes used to express any concept of institutional
and even societal recognition of harm caused. In practice, the search for
accountability usually involves diverse official and unofficial mechanisms
to understand, expose, sanction and prevent further wrongdoing.
When dealing with war crimes and crimes against humanity (includ-
ing genocide), accountability is frequently described as “the absence of
impunity”, largely because a working definition of impunity exists, thanks
to Louis Joinet and his Set of Principles to Combat Impunity adopted by
the United Nations General Assembly in 1977 and updated in 2005:2

Impunity is a failure of States to meet their obligations to investigate viola-

tions, take appropriate measures in respect of the perpetrators, particularly in
the area of justice, to ensure that they are prosecuted, tried and duly punished,
to provide the victims with effective remedies and reparation for the injuries
suffered, and to take steps to prevent any recurrence of such violations.

We might say then that accountability is achieved in any particular case

when states have exercised reasonable efforts to take these appropriate
 1 INTRODUCTION 3

measures. Finally, while some view accountability as causally linked to

democracy, the principal underlying rationale of efforts to combat impu-
nity in international legal instruments is more narrowly focussed: reck-
oning with a violent past better equips societies to prevent recurrence
future crime. The former head of the UK Service Prosecuting Authority
stresses, “Accountability demonstrates the health of a system in a modern
civilisation. It is not a necessary evil required by international convention”.
His successor and current Director of Service Prosecutions warns that
words require action: “Reviews of military operations to ensure their com-
pliance with the law can be a painful, expensive and lengthy process. But
because of the interests at stake it has to be done”.3
The focus in this book is on the investigation of war crimes and
related human rights abuses. The book does not deal with the crime of
aggression or accountability for political decisions to go to war, which
are expertly analysed elsewhere.4 Since our focus is investigation, repara-
tions and prevention are likewise not covered in this volume.5

Why Investigations?
Why do investigations matter? In recent decades, there has been an
unprecedented proliferation of international criminal law and institu-
tions and of human rights litigation before domestic courts and regional
bodies.6 The level of knowledge and expectation among victims and
their representatives is also increasing, meaning not only more but bet-
ter-prepared claims against state institutions worldwide. Legal claims and
journalistic coverage are now aided by scientific advances from mobile
phone camera apps7 to social media platforms to satellite imagery, all of
which make it easier to document and share potential evidence of war
crimes and human rights abuses—even in the midst of war. The use of
drones presages an era of automated warfare in which human decisions
may become ever more physically remote from the battlefield.8 When
allegations of crimes arise, armed forces, justice systems, policymak-
ers, victims and civil society groups must navigate this complex, ever-
changing landscape. States with a reputation for upholding international
law will be constantly working to clarify what that law requires of them and
finding appropriate domestic laws and mechanisms with which to do so.
Investigation of alleged wrongdoing is pivotal to their success or failure.
Our discussion focusses on alleged killings and mistreatment when
they amount to war crimes, or torture and other cruel inhuman or
4 S. L. KEMP

degrading treatment or punishment. We will look at the laws, ­institutions

and mechanisms the UK has in place to respond, particularly its service
(military) justice system.9 The emphasis is on the Royal Military Police,
part of the British Army, rather than the service police forces of the
Royal Navy or Royal Air Force. This is primarily because the majority of
incidents and the most high-profile allegations of such crimes in the last
six decades have involved the Army.

Why Focus on Military Misconduct?

British forces have been victims of very serious crimes of the same nature
as those we will discuss, committed by both foreign and domestic perpe-
trators. High-profile examples since 1946 include the capture and kill-
ing of two British soldiers in Palestine in July 1947, attributed to Jewish
insurgents; the torture of British prisoners of war in Korea between July
1950 and June 1953, attributed to Korean, Chinese and Russian forces;
the capture and shooting of three Scots soldiers in Belfast 1971 and
the torture and killing of two off-duty army corporals in March 1988
in Belfast, both attributed to the Provisional Irish Republican Army;
numerous “green on blue” attacks by Afghan forces;10 and the torture
and execution of soldier Scott McLaren in Afghanistan on 4 July 2001,
attributed to Taliban insurgents. International law requires that the
UK investigate all killings and mistreatment inflicted on its own forces,
including when the conduct may amount to a grave breach of the Third
Geneva Convention or a violation of the victim’s right to life or personal
integrity.
Why then examine alleged misconduct by armed forces personnel?
There are two reasons. First, it is rightly expected that most states will
leave no stone unturned in pursuing and holding to account insurgents,
terrorist groups or common criminals who commit war crimes against
their civilians or forces at home or abroad. Allegations against a state’s
own forces however pose the most exacting test of the capacity, inde-
pendence and impartiality of any justice system and the political com-
mitment of its government to international law. Second, the UK seeks to
maintain the highest professional standards within its armed forces and
its justice system and has a global reputation for providing assistance to
the legal systems of many other countries. If the UK is to retain any real
legitimacy in this role, it must ensure robust responses to alleged wrong-
doing of its own forces.
 1 INTRODUCTION 5

A Note on Materials
Early studies of the obstacles that states encounter when responding to
the atrocities of their own officials focussed on transitions from repressive
regimes, mainly in Europe,11 but in recent decades the bulk of scholarly
analyses have targeted “developing countries”. This is unsurprising per-
haps, given the current docket of the International Criminal Court,12 the
location of recent armed conflicts, and the surge of interest in domestic
prosecutions of war crimes, truth commissions and reparations initiatives
across Latin America.13
Independent analyses on “developed countries” meanwhile tend to
focus on crimes of foreign nationals particularly during World War II
and the conflict in former Yugoslavia, or the pros and cons of univer-
sal jurisdiction over foreign perpetrators of crimes as far afield as Chile
and Chad.14 Political attention in European states to investigation of
crimes committed by their own nationals is, with some exceptions,15
dominated by the terrorist offences of non-state agents. Nonetheless,
academic scholars have provided useful and publicly accessible materials
on Western countries’ misconduct and specific investigations. The collec-
tion of papers on investigating in operational military contexts published
by the Australian National University in 2012 includes two incidents
involving the UK—“Bloody Sunday” and Basra, Iraq, alongside inci-
dents involving Australian, Canadian and United States armed forces.16
The Israeli government’s Turkel Commission used questionnaires to
gather expert views about the domestic criminalisation of war crimes
in countries including Australia, Canada, Germany, the Netherlands,
the UK and the US: these and Peter Rowe’s 2011 entry on the UK are
available online.17 The 2015 collection of academic papers Military Self-
Interest in Prosecuting Core International Crime18 includes a chapter on
the UK by the former chief military prosecutor Bruce Houlder.
When it comes to alleged UK crimes, independent studies are avail-
able on individual cases,19 crime types such as torture,20 colonial
­contexts,21 specific armed conflicts (particularly Iraq22), the “war on
terror”,23 the Northern Ireland “troubles”,24 counter-insurgency since
190025 and whether the UK has done enough to prevent the ICC open-
ing an investigation into alleged war crimes in Iraq.26 Academic Kate
Grady meanwhile points out that the military justice system attracts little
scholarly attention in the UK in her examination of its response to the
common crimes that make up the vast majority of its caseload.27
6 S. L. KEMP

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Fig. 1.1 Geography and terminology: GB and UK (Note The land forces of the
UK are commonly termed the “British Army”. Certain regiments or corps within
the current Army are called “Royal” having been originally raised by or at the
request of the monarch, e.g. Royal Artillery. Source Ministry of Defence http://
www.army.mod.uk/infantry/23301.aspx)

This book aims to complement these materials by familiarising

readers with the political context, laws, institutions, mechanisms and
challenges of investigation that form the backdrop to any UK investi-
gations of alleged international crimes by its own forces. Our discussion
is tailored for a wide audience but for readers seeking to delve deeper,
links to specialist legal texts and further reading are provided, with
open source material prioritised where possible. The law is stated as at
October 2018.

Notes
1. These are often referred to in the UK as “British” forces; see Fig. 1.1.
2. E/CN.4/Sub.2/1997/20/Rev.1, Annex II, 26 June 1997, para. A., and
E/CN.4/2005/102/Add.1.
 1 INTRODUCTION 7

3. A. Cayley and B. Houlder, in Bergsmo and Tianying (eds.), Military Self-
Interest in Accountability for Core International Crimes, Introduction and
Chapter 6 available at http://www.toaep.org/ps-pdf/25-bergsmo-song.
4. On 14 December 2017, the Assembly of States Parties voted to acti-
vate the jurisdiction of the International Criminal Court over the crime
of aggression as of 17 July 2016. On UK political accountability, see
P. Rowe (2016), Chapters 2–5.
5. On international law and practice and (non-UK) case studies, see P. de
Grieff (ed.), The Handbook of Reparations, New York, ICTJ, 2008;
C. Evans, The Right to Reparation in International Law for Victims
of Armed Conflict, Cambridge, CUP, 2012; and A. Mayer Reich,
“Guarantees of Non-Repetition: An Approximation”, HRQ (2017) 39:
416–448.
6. A. Cassese, “From Nuremberg to Rome: International Military Tribunals
to the International Criminal Court” in A. Cassese, P. Gaeta, and
J. Jones (eds.), The Rome Statute of the International Criminal Court:
A Commentary, Oxford, OUP, 2002; N. Roht-Arriaza (ed.), Digest of
Latin American Jurisprudence on International Crimes, Washington, DC,
DPLF, 2010; and G. Bekker, “The African Commission on Human and
Peoples’ Rights and Remedies for Human Rights Violations”, HRLR
(2013) 13 (3): 499–528.
7. Such as “eyewitness”.
8. See P. Scharre, Army of None: Autonomous Weapons and the Future of
War, New York, Norton, 2018.
9. For analysis of how some military justice systems have modernised over
the years: A. Duxbury and M. Groves (eds.), Military Justice in the
Modern Age, Cambridge, CUP, 2016.
10. These are defined as attacks by Afghan security, police and army forces
on ISAF personnel and contractors; see Clive Williams in D. Lovell (ed.),
Investigating in Operational Contexts: Law, Justice, Politics, Leiden,
Brill–Nijhoff, 2014 at 147.
11. G. O’Donnell, P. Schmitter, and L. Whitehead (eds.), Transitions
from Authoritarian Rule: Comparative Perspectives, London, Johns
Hopkins Press, 1986; N. Kritz (ed.), Transitional Justice: How Emerging
Democracies Reckon with Former Regimes, Washington, DC, USIP, 1995.
12. At the time of writing, the ICC is investigating eight situations, two of
which the Prosecutor initiated propio motu under Articles 13(c) and 15 of
the Rome Statute: Kenya and Cote D’Ivoire. Of the remaining six, two
were referred to the Prosecutor by the United Nations Security Council,
Sudan and Libya, and four by African governments Uganda, DRC, CAR
and Mali. The Prosecutor has an additional eight situations under prelim-
inary examination: Palestine Ukraine and Iraq in phase 2 (subject matter)
8 S. L. KEMP

and Guinea, Nigeria, Afghanistan, Colombia and Georgia in phase 3

(admissibility).
13. A digest of relevant case law in two volumes (2009 and 2013) is availa-
ble at http://www.dplf.org/en/news/dplf-launches-digest-latin-ameri-
can-jurisprudence-international-crimes-volume-ii-english.
14. For example, F. Horst, C. Kress, and S. Rolf, International and National
Prosecutions of Crimes Under International Law, Current Developments,
Berlin, Verlag, 2001, part 3 and the Asser Institute’s online International
Crimes Database (ICD) with excellent summaries of proceedings in the
UK, Spain and Belgium among others.
15. Such as the phenomenon of rendition (see Chapter 4), the Dutch case
of van Anraat, on which see H. Van der Wilt, “Genocide, Complicity in
Genocide and International v. Domestic Jurisdiction: Reflections on the
van Anraat Case”, JICJ (2006) 4: 239–257 and Jaloud v. Netherlands
[2014] ECHR 47708/08 (20 November 2014).
16. Lovell, Investigating in Operational Contexts.
17. Turkel Commission, second report (2013), Annex C, available at http://
www.turkel-committee.gov.il/files/newDoc3/Annex%20C%20-%20
for%20Website.pdf; see also P. Rowe, Legal Accountability and Britain’s
Wars 2000–2015, London, Routledge, 2016 and The Impact of Human
Rights Law on Armed Forces, Cambridge, CUP, 2006.
18. M. Bergsmo and S. Tianying, Ch. 6.
19. For example, N. Rasiah, “The Court-Martial of Corporal Payne and
Others and the Future Landscape of International Criminal Justice”, JICJ
(2009) 7: 177.
20. D. Hope, “Torture”, ICLQ (2004) 53: 807–832; I. Cobain, A Secret
History of Torture, Berkeley, Counterpoint, 2012.
21. For example, H. Bennett, Fighting the Mau Mau, Cambridge, CUP,
2013; D. Anderson, Histories of the Hanged, New York, Norton, 2005.
22. See a review of publications in A. Carty, “The Iraq Invasion as a Recent
United Kingdom ‘Contribution to International Law’”, EJIL (2005) 16
(1); R. Kerr, The Military on Trial: The British Army in Iraq, Nijmegen,
WLP, 2008; and T. Obel Hansen, “Accountability for British War Crimes
in Iraq? Examining the Nexus Between International and National Justice
Responses”, in M. Bergsmo and C. Stahn (eds.), Quality Control in
Preliminary Examination: Volume 1, Brussels, Torkel Opsahl, 2018, avail-
able at https://www.legal-tools.org/doc/e91b1c/pdf/.
23. F. Ni Aolain, “Parallel Applicability of IHL and IHRL: The No-Gaps
Approach to Parallel Application in the Context of the War on Terror”,
Isr. L. Rev. (2007) 40: 563; A. Coco, “The Mark of Cain: The Crime
of Terrorism in Armed Conflict as Interpreted by the Court of Appeal of
England and Wales in R v Mohammed Gul”, JICJ (2013) 11 (2): 425;
 1 INTRODUCTION 9

and H. Duffy, The War on Terror and the Framework of International

Law, 2nd ed., Cambridge, CUP, 2015.
24. Following a preliminary study published in J.L. & Soc. Challenges,
11: 109, Dr. Patricia Lundy of Ulster University carried out exten-
sive research (publication pending) into the workings of the Historical
Enquiries Team of the Police Service in Northern Ireland, prompting an
investigation by Her Majesty’s Inspectorate of Constabulary in 2013; see
http://news.ulster.ac.uk/releases/2012/6309.html.
25. See Col. D. Benest, “Atrocities in Britain’s Counter-Insurgencies”, RUSI
Journal (2011) 156 (3): 80–87.
26. C. Ferstman, T. Obel and N. Arajarvi, “The UK Military in Iraq: Efforts
and Prospect for Accountability for International Crimes Allegations?”
Discussion Paper, University of Essex and Ulster University, 1 October
2018, available at https://www1.essex.ac.uk/hrc/documents/THE_
UK_MILITARY_IN_IRAQ_1Oct2018.pdf.
27. “Disciplinary Offences at the Court Martial” [2016] 10 CLR, 714,
“International Crimes in the Courts of England and Wales” [2014] 10
CLR, 693.
Another random document with
no related content on Scribd:
 A BAKED IRISH STEW.

Fill a brown upright Nottingham jar with alternate layers of mutton

(or beef), sliced potatoes, and mild onions; and put in water and
seasoning as above; cover the top closely with whole potatoes
(pared), and send the stew to a moderate oven. The potatoes on the
top should be well cooked and browned before the stew is served.
We have not considered it necessary to try this receipt, which was
given to us by some friends who keep an excellent table, and who
recommended it much. It is, of course, suited only to a quite plain
family dinner. The onions can be omitted when their flavour is not
liked.
 CUTLETS OF COLD MUTTON.

Trim into well-shaped cutlets, which should not be very thin, the
remains of a roast loin or neck of mutton, or of a quite underdressed
stewed or boiled joint; dip them into egg and well-seasoned bread-
crumbs, and broil or fry them over a quick fire that they may be
browned and heated through without being too much done. This is a
very good mode of serving a half roasted loin or neck. When the
cutlets are broiled they should be dipped into, or sprinkled thickly
with butter just dissolved, or they will be exceedingly dry; a few
additional crumbs should be made to adhere to them after they are
moistened with this.
 MUTTON KIDNEYS À LA FRANÇAISE. (ENTRÉE.)

Skin six or eight fine fresh mutton kidneys, and without opening
them, remove the fat; slice them rather thin, strew over them a large
dessertspoonful of minced herbs, of which two-thirds should be
parsley and the remainder thyme, with a tolerable seasoning of
pepper or cayenne, and some fine salt. Melt two ounces of butter in
a frying-pan, put in the kidneys and brown them quickly on both
sides; when nearly done, stir amongst them a dessertspoonful of
flour and shake them well in the pan; pour in the third of a pint of
gravy (or of hot water in default of this), the juice of half a lemon, and
as much of Harvey’s sauce, or of mushroom catsup, as will flavour
the whole pleasantly; bring these to the point of boiling, and pour
them into a dish garnished with fried sippets, or lift out the kidneys
first, give the sauce a boil and pour it on them. In France, a couple of
glasses of champagne, or, for variety, of claret, are frequently added
to this dish: one of port wine can be substituted for either of these. A
dessertspoonful of minced eschalots may be strewed over the
kidneys with the herbs; or two dozens of very small ones previously
stewed until tender in fresh butter over a gentle fire, may be added
after they are dished. This is a very excellent and approved receipt.
Fried 6 minutes.
 BROILED MUTTON KIDNEYS.

Split them open lengthwise without dividing them, strip off the skin
and fat, run a fine skewer through the points and across the back of
the kidneys to keep them flat while broiling, season them with pepper
or cayenne, lay them over a clear brisk fire, with the cut sides
towards it, turn them in from four to five minutes, and in as many
more dish, and serve them quickly, with or without a cold Maître
d’Hôtel sauce under them. French cooks season them with pepper
and fine salt, and brush a very small quantity of oil or clarified butter
over them before they are broiled: we think this an improvement.
8 to 10 minutes.
OXFORD RECEIPT FOR MUTTON KIDNEYS. (BREAKFAST DISH,
OR ENTRÉE.)

Fry gently in a little good butter, a dozen croûtons (slices of bread,

of uniform shape and size, trimmed free from crust), cut half an inch
thick, about two inches and a half wide, and from three to four in
length: lift them out and keep them hot. Split quite asunder six fine
fresh kidneys, after having freed them from the skin and fat; season
them with fine salt and cayenne, arrange them evenly in a clean
frying-pan, and pour some clarified butter over them. Fry them over a
somewhat brisk fire, dish each half upon a croûton, make a sauce in
the pan as for veal cutlets, but use gravy for it instead of water,
should it be at hand; add a little wine or catsup, pour it round the
croûtons, and serve the kidneys instantly.
10 minutes.
 TO ROAST A FORE QUARTER OF LAMB.

This should be laid to a clear brisk fire, and carefully and plentifully
basted from the time of its becoming warm until it is ready for table;
but though it requires quick roasting, it must never be placed
sufficiently near the fire to endanger the fat, which is very liable to
catch or burn. When the joint is served, the shoulder should be
separated from the ribs with a sharp knife; and a small slice of fresh
butter, a little cayenne, and a squeeze of lemon juice should be laid
between them; if the cook be an expert carver, this had better be
done before the lamb is sent to table. The cold Maître d’Hôtel sauce
of Chapter VI. may be substituted for the usual ingredients, the
parsley being omitted or not, according to the taste. Serve good mint
sauce, and a fresh salad with this roast.
A leg, shoulder, or loin of lamb should be cooked by the same
directions as the quarter, a difference only being made in the time
allowed for each.
Fore quarter of lamb, 1-3/4 to 2 hours. Leg, 1-1/2 hour (less if very
small); shoulder, 1 to 1-1/4 hour.
Obs.—The time will vary a little, of course, from the difference in
the weather, and in the strength of the fire. Lamb should always be
well roasted.
 SADDLE OF LAMB.

This is an exceedingly nice joint for a small party. It should be

roasted at a brisk fire, and kept constantly basted with its own
dripping: it will require from an hour and three quarters to two hours
roasting. Send it to table with mint sauce, brown cucumber sauce,
and a salad.
1-3/4 to 2 hours.
Obs.—The following will be found an excellent receipt for mint
sauce:—With three heaped tablespoonsful of finely-chopped young
mint, mix two of pounded and sifted sugar, and six of the best
vinegar: stir it until the sugar is dissolved.
 ROAST LOIN OF LAMB.

Place it at a moderate distance from a clear fire, baste it

frequently, froth it when nearly done, and serve it with the same
sauces as the preceding joints. A loin of lamb may be boiled and
sent to table with white cucumber, mushroom, common white sauce,
or parsley and butter.
1 to 1-1/4 hour.
 STEWED LEG OF LAMB WITH WHITE SAUCE. (ENTRÉE.)[81]
81. This may be served as a remove in a small unceremonious dinner.

Choose a small plump leg of lamb, not much exceeding five

pounds in weight; put it into a vessel nearly of its size, with a few
trimmings or a bone or two of undressed veal if at hand; cover it with
warm water, bring it slowly to a boil, clear off the scum with great
care when it is first thrown to the surface, and when it has all been
skimmed off, add a faggot of thyme and parsley, and two carrots of
moderate size. Let the lamb simmer only, but without ceasing, for an
hour and a quarter; serve it covered with béchamel, or rich English
white sauce, and send a boiled tongue to table with it, and some of
the sauce in a tureen.
1-1/4 hour.
 LOIN OF LAMB STEWED IN BUTTER. (ENTRÉE.)

Wash the joint, and wipe it very dry; skewer down the flap, and lay
it into a close-shutting and thick stewpan or saucepan, in which three
ounces of good butter have been just dissolved, but not allowed to
boil; let it simmer slowly over a very gentle fire for two hours and a
quarter, and turn it when it is rather more than half done. Lift it out,
skim and pour the gravy over it; send asparagus, cucumber, or
soubise sauce to table with it; or brown gravy, mint sauce, and a
salad.
2-1/4 hours.
 LAMB OR MUTTON CUTLETS, WITH SOUBISE SAUCE.
(ENTRÉE.)

The best end of two necks of either will be required for a

handsome dish. Cut them thin with one bone to each; trim off the fat
and all the skin, scrape the bones very clean that they may look
white, and season the cutlets with salt and white pepper; brush them
with egg, dip them into very fine bread-crumbs, then into clarified
butter, and again into the bread-crumbs, which should be flattened
evenly upon them, and broil them over a very clear and brisk fire, or
fry them in a little good butter of a fine clear brown; press them in
two sheets of white blotting paper to extract the grease, and dish
them in a circle, and pour into the centre a soubise sauce, or a purée
of cucumbers. Brown cucumber sauce or a rich gravy, may be
substituted for either of these in serving a quite simple dinner.
Cutlets of the loin may be dressed in the same way after being
dipped into crumbs of bread mixed with a full seasoning of minced
herbs, and with a small quantity of eschalot when its flavour is liked.
The small flat bone at the end of the cutlets should be taken off, to
give them a good appearance.
 LAMB CUTLETS IN THEIR OWN GRAVY.

Follow exactly the receipt for mutton cutlets dressed in the same
way, but allow for those of lamb fifteen or twenty minutes less of
time, and an additional spoonful of liquid.
 CUTLETS OF COLD LAMB.

See the receipt for Cutlets of Cold Mutton, page 243.

 CHAPTER XIII.

Pork.

No.
1. The Spare Rib.
2. Hand.
3. Belly, or Spring.
4. Fore Loin.
5. Hind Loin.
6. Leg.

In season from Michaelmas to March: should be avoided in very warm weather.

 TO CHOOSE PORK.

This meat is so proverbially, and we believe even dangerously

unwholesome when ill fed, or in any degree diseased, that its quality
should be closely examined before it is purchased. When not home-
reared, it should be bought if possible of some respectable farmer or
miller, unless the butcher who supplies it can be perfectly relied on.
Both the fat and lean should be very white, and the latter finely
grained; the rind should be thin, smooth, and cool to the touch; if it
be clammy, the pork is stale, and should be at once rejected; it ought
also to be scrupulously avoided when the fat, instead of being quite
clear of all blemish, is full of small kernels which are indicative of
disease. The manner of cutting up the pork varies in different
counties, and also according to the purposes for which it is intended.
The legs are either made into hams, or slightly salted for a few days
and boiled; they are also sometimes roasted when the pork is not
large nor coarse, with a savoury forcemeat inserted between the skin
and flesh of the knuckle. The part of the shoulder provincially called
the hand, is also occasionally pickled in the same way as hams and
bacon, or it is salted and boiled, but it is too sinewy for roasting. After
these and the head have been taken off, the remainder, without
further division than being split down the back, may be converted
into whole sides, or flitches as they are usually called, of bacon; but
when the meat is large and required in part for various other
purposes, a chine may be taken out, and the fat pared off the bones
of the ribs and loins for bacon; the thin part of the body converted
into pickled pork, and the ribs and other bones roasted, or made into
pies or sausages. The feet, which are generally salted down for
immediate use, are excellent if laid for two or three weeks into the
same pickle as the hams, then well covered with cold water, and
slowly boiled until tender.
The loins of young and delicate pork are roasted with the skin on;
and this is scored in regular stripes of about a quarter of an inch
wide with the point of a sharp knife, before the joints are laid to the
fire. The skin of the leg also is just cut through in the same manner.
This is done to prevent its blistering, and to render it more easy to
carve, as the skin (or crackling) becomes so crisp and hard in the
cooking that it is otherwise sometimes difficult to divide it.
To be at any time fit for table, pork must be perfectly sweet, and
thoroughly cooked; great attention also should be given to it when it
is in pickle, for if any part of it be long exposed to the air, without
being turned into, or well and frequently basted with the brine, it will
often become tainted during the process of curing it.
 TO MELT LARD.

Strip the skin from the inside fat of a freshly killed and well-fed pig;
slice it small and thin; put it into a new or well-scalded jar, set it into a
pan of boiling water, and let it simmer over a clear fire. As it
dissolves, strain it into small stone jars or deep earthen pans, and
when perfectly cold, tie over it the skin that was cleared from the
lard, or bladders which have been thoroughly washed and wiped
very dry. Lard thus prepared is extremely pure in flavour, and keeps
perfectly well if stored in a cool place; it may be used with advantage
in making common pastry, as well as for frying fish, and for various
other purposes. It is better to keep the last drainings of the fat apart
from that which is first poured off, as it will not be quite so fine in
quality.
 TO PRESERVE UNMELTED LARD FOR MANY MONTHS.

For the particular uses to which the leaf-fat, or fleed, can be

advantageously applied, see fleed-crust, Chapter XVIII. It may be
kept well during the summer months by rubbing fine salt rather
plentifully upon it when it is first taken from the pig, and letting it lie
for a couple of days; it should then be well drained, and covered with
a strong brine; this in warmer weather should be changed
occasionally. When wanted for use, lay it into cold water for two or
three hours, then wipe it dry, and it will have quite the effect of the
fresh fleed when made into paste.
Inner fat of pig, 6 lbs.; fine salt, 1/2 to 3/4 lb.: 2 days. Brine: to
each quart of water, 6 oz. salt.
 TO ROAST A SUCKING PIG.

After the pig has been scalded and

prepared for the spit, wipe it as dry as
possible, and put into the body about
half a pint of fine bread-crumbs, mixed
with three heaped teaspoonsful of
sage, minced very small, three
ounces of good butter, a large
saltspoonful of salt, and two-thirds as
much of pepper or some cayenne. Sew it up with soft, but strong
cotton; truss it as a hare, with the fore legs skewered back, and the
hind ones forward; lay it to a strong clear fire, but keep it at a
moderate distance, as it would quickly blister or scorch if placed too
near. So soon as it has become warm, rub it with a bit of butter tied
in a fold of muslin or of thin cloth, and repeat this process constantly
while it is roasting. When the gravy begins to drop from it, put basins
or small deep tureens under, to catch it in.[82] As soon as the pig is
of a fine light amber brown and the steam draws strongly towards
the fire, wipe it quite dry with a clean cloth, and rub a bit of cold
butter over it. When it is half done, a pig iron, or in lieu of this, a large
flat iron should be hung in the centre of the grate, or the middle of
the pig will be done long before the ends. When it is ready for table
lay it into a very hot dish, and before the spit is withdrawn, take off
and open the head and split the body in two; chop together quickly
the stuffing and the brains, put them into half a pint of good veal
gravy ready thickened, add a glass of Madeira or of sherry, and the
gravy which has dropped from the pig; pour a small portion of this
under the roast and serve the remainder as hot as possible in a
tureen: a little pounded mace and cayenne with a squeeze of lemon-
juice, may be added, should the flavour require heightening. Fine
bread sauce, and plain gravy should likewise be served with it. Some
persons still prefer the old-fashioned currant sauce to any other: and
many have the brains and stuffing stirred into rich melted butter,
instead of gravy; but the receipt which we have given has usually