Is the War on Terror Bound to See Our Troops Breaking the Law?

British troops shot dead a leading al-Qaeda terrorist in Basra this week. Omar al Faruq, who was implicated in the Bali bombings and was said to have been sent to Basra to urge attacks on the British was hunted down in a carefully planned operation. Two companies of the Princess of Wales's Royal Regiment were ordered to take Faruq alive but he resisted and was shot dead in an exchange of fire. No doubt Faruq could have produced some intelligence on the planned operations of al-Qaeda in Iraq, which would be why British military commanders wanted him alive. But I do wonder what the British planned to do with him once he had been interrogated. Who would they have handed him over to, the Iraqis or the Americans? Wouldn't that have been just as illegal under international law as deliberately killing him?

The truth is that British military commanders would have been in an understandable quandary. Handing over captured terrorists to the Americans has been avoided by the British recently because of the dubious practices in place – Guantanamo; secret prisons; and as I’ve discussed before, torture. Would they have handed him over to the Iraqis, whose treatment of prisoners scarcely matches up to the standards demanded by international law.

One of this blog’s US readers, Don Walker, asks the question, posed previously here, as to how long we can operate alongside US troops without finding ourselves guilty of war crimes simply for helping them carry out practices deemed perfectly legal by President Bush but which under UK and international law remain illegal.

“If Bush amends the definition of torture under Article 3 of the Geneva Convention, as is expected, can British troops continue to interact on the battlefield with the US?,” Don asks. “Would British troops condone torture by turning prisoners over to the US? If the US removes the right to habeas corpus , a right found in the Magna Carta for prisoners, should British troops turn prisoners over to the Americans? Persons captured by the British and turned over to the Americans could disappear into the black hole of prisons.”

Both houses of Congress have now backed Bush's controversial amendments and it only remains for him to sign them off as law. But as I've pointed out before, the treatment of prisoners is not the only issue. US special operations forces are carrying out targeted assassinations of terrorists linked to al-Qaeda. UK special forces and intelligence teams operate alongside and provide assistance to their US counterparts as part of the war on terror. Are they being asked to break the law? Deliberately killing a terrorist is illegal, but so too would be handing him over to the Americans to be tortured. What then are British troops to do? Could they find themselves charged with war crimes for simply doing their job?

Comments

[Frank Schnittger]

Is this academic speculation, or have British soldiers exprssed these concerns to you? Given that the US hasn't ratified various conventions that would make American soldiers answerable to international courts, whereas Britain has, any common operations with the US which are illegle under international law could result in British Soldiers being tried for war crimes whereas their American counterparts would get off scot free. Such are the pitfalls of aligning yourself with a power which basically regards itself as being above the law - even where - as in the Geneva Conventions, it has actually ratified those laws.

[The 3rd Column]

Mick says, "Deliberately killing a terrorist is illegal, but so too would be handing him over to the Americans to be tortured. What then are British troops to do? Could they find themselves charged with war crimes for simply doing their job?"

My two cents' worth:

1. British troops keep captured terrorists and not hand them over to US troops - so that they can be investigated (not tortured), tried and judged according to Geneva conventions.

2. British troops are quite likely to be charged with war unless they operate distinctly and separately from US troops, or for that matter - Tony Blair in the future might stand accused of war crimes.

If you ask me, because British troops are merely following higher orders, technically they shouldn't be liable for war crimes. It's the old sod, Tony Blair who should face the jury in a war crimes court.

[Mark Arneson]

Yes Frank, this is nothing more than academic speculation.

Lets get real here. The invasion of Iraq by British troops without the approval of the U.N. was a violation of international law. Tony Blair is a war criminal. Anything that British troops do in Iraq is illegal. They aren't supposed to be there! Britain is a rouge nation. Don't blame the Americans, Britain views itself as above the law. It wasn't George Bush or the American Congress that sent British troops to Iraq, Tony Blair and the British did it.

It's time for Britain to stand up and take responsibility for their own actions.

Is that all that Britain or the Europeans can say, the Americans made us do it? We're not responsible.

How spineless! And you wonder why the Americans are so arrogant?

[The 3rd Column]

Mick, as a follow on to my comment, allow me to be more specific: It is evident to me that Guantanamo is against the Geneva convention and therefore means the US are liable for war crimes. Anyone who condones this must also be guilty. The British have to search their consciences very hard.

I raised this with a British 4 star on Tuesday (at a NATO meeting) and he was not happy. The UK is between a rock and a hard place. If we stay with the US we are damned. If we leave the US we could create a worse situation as they will be totally isolated and our western way of life threatened. Not an easy ride for the UK.

We are back to the story of the man holding onto the tail of a tiger. All is well while he hangs on, but what happens when he lets go?

[Edmund Burke]

When it comes to interpreting the law, I think we have to take into account the difference in cultures between Britain and the USA. We share a common language, but US culture is a synthesis of European and native American strands. That means that in the USA the image of the law is as important as the letter of the law. So, because Saddam was a dictator, invading Iraq was "the right thing to do", in an absolute sense, even if it contravened the actual letter of international law. The only problem is that such a policy is in itself an act of dictatorship.