Thursday, 16 March 2017

In Defence of the Wounded : An Opposition to the Alexander Blackman decision



Alexander Blackman was a British soldier who served in Afghanistan on several tours, most notably in 2011. He was known as Marine A and was sentenced to life imprisonment for the murder of an unarmed and injured combatant in Afghanistan. His case has endured a multitude of commentary and several court cases. Originally, he was found guilty of murder but this has now been reduced to manslaughter after an appeal, funded by his wife and several interested parties. I myself, have several reservations about this verdict and its implications on international treaties currently in effect. I believe the Court of Appeal has made a mistake and has partly legitimised the execution of those who could become prisoners.


The Incident

On 15 September 2011 insurgents attacked Command Post Taalanda in South West Helmand, using small arms fire. An Apache helicopter from Camp Bastion was called in to fight back and targeted and supposedly killed the insurgents.

On that afternoon Sergeant Alexander Blackman, of 42 Commando, Royal Marines, was part of a patrol that was ordered to undertake what was called a battle damage assessment. On this patrol, they came across a Taliban soldier in a field, wounded by Apache Helicopter gunfire. The helicopter fired a total of 139 30mm rounds at that insurgent, and believed it was impossible for him to have survived.

Upon discovering the insurgent, Blackman ordered the Afghan to be moved out of sight of the British Persistent Ground Surveillance System, a camera on a balloon above the British Forward Operating in Helmand Province. Blackman was with two other soldiers Corporal Watson, known as Marine B, and Marine Hammond, known as Marine C. Blackman ordered Marine B and C to stop administering first aid to the insurgent and eventually shot the man in the chest with a 9 mm pistol, saying: 

"Shuffle off this mortal coil, you cunt. It's nothing you wouldn't do to us."Obviously this doesn’t go anywhere, fellas. I just broke the Geneva Convention." 

None of the marines present mentioned this to superiors, but a year later, video evidence found from Marine B's helmet camera by a chance inspection of footage, brought the incident to light.

The Original Verdict

On 13 October 2012 the appellant, Corporal Watson and Marine Hammond and two other marines known as Marine D and Marine E were charged by the Service Prosecution Authority with murder, contrary to s.42 of the Armed Forces Act 2006. That section makes it an offence if a person in the armed forces does an act that is punishable by the law of England and Wales or, if done in England and Wales, would be so punishable. The offence of murder or manslaughter committed by a British citizen is punishable by the law of England and Wales wherever committed as stated in R v Page.

On 8 November 2013, a Court Martial found the appellant guilty of murder but acquitted Corporal Watson and Marine Hammond. On 6 December 2013 the Court Martial sentenced the appellant to life imprisonment with a minimum term of 10 years in custody, a reduction to the ranks and dismissal with disgrace from the Armed Forces. In 2014, his sentence term was reduced to 8 years minimum in custody on appeal.

Appeal and Change in Verdict

On Wednesday 15th March, Blackmans murder charge was changed to manslaughter on the grounds of diminished responsibility. Evidence which has come to light regarding Blackman's mental state at the time of the incident demonstrated elements of paranoia, extreme stress and sleep deprivation.

Diminished Responsibility is a partial defence, set out in S.52 of the Coroners and Justice Act 2009. Upon a successful argument it reduces the charge of murder to voluntary manslaughter. There are several conditions that must be satisfied for the defence to succeed. 
  • An abnormality of mental functioning caused by a recognised medical condition.
  • Which provides an explanation for the defendant’s acts or omissions in being party to the killing.
  • Which substantially impaired his/her mental ability to either:
a)      Understand the nature of their conduct or
b)      Form a rational judgement or
c)      Exercise self–control

The Court decided that Blackman had an adjustment disorder, combined with combat stress that explained his actions and substantially impaired his mental ability to understand what he was doing, be rational and control himself.

Other factors that the Court took into account were:
  • Blackman had not received full pre-deployment training; he had to take time out of training because of his father’s death.
  • There was powerful evidence that members of the team under Blackman’s command were always on edge and did not feel safe at night.
  • The team had been hardest hit by the insurgents; they were losing ground and were combat-weary.
  • The team at CP Omar was undermanned; the previous team had numbered 25; the team under the appellant was 16.
  • Ambushes by insurgents and the threat of explosive devices were constant.
  • The insurgents had inflicted severe casualties and treated dead bodies callously.
  • Blackman regarded himself as responsible for his troops, particularly those with children (the appellant had none); he therefore undertook more patrols and risks to himself so that his troops could all get home safely.
  • Blackman regarded himself as easily identifiable and targeted by the insurgents. About a month before the killing two grenades were thrown at the appellant by insurgents while he was talking to Afghan civilians outside the camp. The grenades fell into a nearby drainage ditch which funnelled the blast upwards, saving his life.
I am not going to dismiss medical evidence, but the fact it took years to come to light is concerning. Was it created by the defence as a justification, or were the top military commanders in the area at the time of the incident not telling the full story of the situation in CP Taalanda?

Geneva Conventions

The Geneva Conventions is a body of the Humanitarian Law of Armed Conflicts, whose purpose is to provide minimum protections, standards of humane treatment, and fundamental guarantees of respect to individuals who become victims of armed conflicts.  They are a series of treaties, on the treatment of civilians, prisoners of war and soldiers who are otherwise rendered hors de combat, or incapable of fighting.

Dr Philip Spoerri explained why they were created:

"...the decision to draft the Geneva Conventions of 1949 was sealed by the tragedy of the Second World War and that the conventions were intended to fill the gaps in international humanitarian law exposed by the conflict."

The Conventions themselves, hold no punishment, yet the First Geneva Convention calls on the Contracting Parties to "enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed," any of the following violations:

...willful killing, torture or inhumane treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.

Essentially, those that go far beyond the necessary force or actions needed in war, should be punished by laws in their own country that are intended to deal with these matters. In this case, s.42 of the armed forces act enables the crime of murder to be tried against a soldier. In fact, the armed forces act itself makes any crime in England and Wales a crime in operations abroad.

A major issue in this case concerns enemy wounded. According to the conventions, enemy wounded may not be attacked, but must be collected and cared for, with the same access to medical treatment as the State's own wounded. If not, this would be in violation of Geneva Convention I Article 12 or the Conventions Common Article 3.

In my opinion, the Geneva Conventions were introduced to stop needless killing in war. They were meant to be held to the highest possible threshold, and Sergeant Blackman knowingly dismissed them. He has broken the Articles above and should be punished severely for it.

My Opinion


I vehemently disagree with the Court of Appeals decision to change Blackmans sentence of murder to manslaughter on grounds of diminished responsibility. 

I will refer to quotations from the original Court Martial that I wish to elaborate on:

When [the appellant] found him he was no longer a threat. Having removed his AK47, magazines and a grenade [the appellant] caused him to be moved to a place where [the appellant] wanted to be out of sight of [the] operational headquarters at Shahzad so that, to quote what [the appellant] said,“PGSS can’t see what we are doing to him”.

Whether Mr Blackman was suffering from mental illness or not, he clearly knew what he was doing was wrong. Verbally warning his fellow marines to move the injured insurgent out of view of the surveillance system. If Mr Blackman had any intention of helping this man at all, he would not have needed to move him from the spot to administer treatment. There was a clear intention to cause harm.

He was handled in a robust manner by those under [the appellant’s]command clearly causing him additional pain and [the appellant] did nothing to stop them from treating him in that way. When out of view of the PGSS [the appellant] failed to ensure he was given appropriate medical treatment quickly and then ordered those giving him some first aid to stop. 

Blackman clearly wanted to hurt the individual, who was already gravely wounded by helicopter fire. By stopping medical aid, he condemned a person who was no longer a threat to death and he knew this was the case. Furthermore he was being a terrible example to his fellow soldiers.

When [the appellant was] sure the Apache helicopter was out of sight, [the appellant] calmly discharged a 9 millimetre round into his chest from close range. [The appellant’s] suggestion that [he] thought the insurgent was dead when [he] discharged the firearms lacks any credibility and was clearly made up after [he] had been charged with murder in an effort to concoct a defence.

Blackman manufactured a lie to cover up his act. Again, he was more than aware that his actions were contrary to the Geneva Conventions.

[The appellant] then told [his] patrol they were not to say anything about what had just happened and [the appellant] acknowledged what [he] had done by saying [he] had just broken the Geneva Convention. The tone of calmness of [his] voice as [he] commented after [he] had shot him were matter of fact and in that respect they were chilling.

This illustrated the mens rea of murder. He was not in a confused state of mind on the video when deciding how to handle the injured man, and shot him calmly and without hesitation.

Aggravating factors found by the Court Martial are also highly damning:

"Third, the appellant’s actions put at risk the lives of other British service personnel because his actions would be used to radicalise others and encourage them both to fight the British forces and to act more brutally towards them in retribution or reprisal.

In resistance movement and extremist cells, it is often seen that serious retaliations are committed in response to brutal attacks against them. For example, a twitter account reportedly associated with Islamic State claims the Bastille Massacre, where 84 people died in France, was a revenge attack for the killing of Abu Omar al-Shishani, a high ranking member of IS. In 2010, the Kampala attacks by Al-Shabaab that killed 74 were claimed in retaliation for Ugandan support for an African Union mission in Somalia. The reason we have limits is to separate us from those who go extremes. If we escalate against them, they strike back harder.

Fourth, he was in charge of the patrol and it was incumbent upon him to set the standards. He had abused his position of trust by involving the other members of the patrol in covering up what had been done and lying on his behalf."

Blackman had to be a role model to the troops under his command. He failed at this, and committed an illegal act of savagery in front of them. The standards of the Armed Forces should be held to the highest possible degree. That is why the discipline of commanders is instilled so heavily on troops.

"Some commentators and members of the public have said that you should not have been prosecuted and that you have not committed a crime because it was killing within a conflict. Some also suggest it is legitimate to kill wounded enemy combatants because, as you said after you shot the insurgent, it is nothing they wouldn’t do to British casualties. Those commentators are very wrong: if the British Armed Forces are not assiduous in complying with the laws of armed conflict and international humanitarian law they would become no better than the insurgents and terrorists they are fighting. Hearts and minds will not be won if British service personnel act with brutality and savagery. If they do not comply with the law they will quickly lose the support and confidence of those they seek to protect, as well as the international community. You and all Service personnel learn this throughout your training - you demonstrated that you knew that then, because you tried to cover it up, and you know it now."

This is one of the most important and valid arguments the judge made and one I agree with wholly. Members of the public and those not in the armed forces are not akin to the rules of warfare. The reason we have rules is to separate us from the barbaric forces that we so often regard as lower than us in standing on moral grounds. For example, would it be right if the Taliban came to a village and killed people’s children, and in response the British Army would retaliate by wiping out children of Taliban soldiers? Furthermore, executing a wounded potential prisoner is an opportunity lost. He could have Intel, could be educated against what he was doing and maybe realise what he was doing was wrong.

However I will concede one issue that the judge in the original case stated:

"Of course sitting in a court room in middle England is a far cry from the brutality of the conflict in Afghanistan"

I myself am not a soldier. I do not know or purport to understand the stresses and life of combat personnel. I am only using the facts given to me by the Courts and making a judgement based on these. However:

"...you have been judged here by a Board made up of Service personnel who understand operational service because they too have experienced it. That is one of the strengths of the Court Martial system." 

Blackman was judged not just by a judiciary official, but by those in the army too. They understood what soldiers went through day to day. They deigned Blackman to have committed murder and I accept that judgement to be correct. No one else had the same lapse of judgement that Blackman had, at least that has been recorded or found. They were at liberty to make an example of Mr Blackman as the punishment for disgracing the armed forces and the values of Britain.

Conclusion

In conclusion, I believe Blackman to be guilty of murder. To me, the partial defence of diminished responsibility does not hold up. He may have had combat stress and adjustment disorder as a recognised condition, but why did it take 5 years to come to light and after 2 separate appeals? I believe public pressure in this case had a big sway on those passing judgement and the funds raised by the campaign to free Blackman hired keener legal minds. The Daily Mail referred to him as a hero. To me, heroes do not execute the wounded and break centuries old international humanitarian law. 

However, it is not as if Blackman has been given the all clear. He was still convicted of voluntary manslaughter, showing that the Courts still believe he was guilty of a serious offence. Blackman is a lucky man. Saved by a campaign based on nationalism and ignorance of the rules of war, Blackman's story gives a dangerous precedent of challenging the very nature of murder under international law. Is it right to say that because Blackman wasn't in the right frame of mind, it's fine for him to break the Geneva Conventions or shoot an unarmed man? The army are not executioners, they are soldiers. It is a difficult issue, but one that I am comfortable with my assessment of.



References

R v Blackman (2012)

R v Alexander Wayne Blackman and Secretary of State for Defence (2014)

https://www.thesun.co.uk/news/1448694/terror-group-chief-urged-followers-to-run-over-the-filthy-french-just-two-years-earlier-as-jihadis-celebrate-nice-terror-attack/

https://www.theguardian.com/world/2010/jul/12/uganda-kampala-bombs-explosions-attacks

https://www.law.cornell.edu/wex/geneva_conventions

https://www.theguardian.com/uk-news/2017/mar/15/alexander-blackman-royal-marine-a-judges-quash-murder-conviction

http://www.dailymail.co.uk/news/article-4315700/Appeal-Court-Judges-clear-Sgt-Alexander-Blackman.html

http://www.independent.co.uk/news/uk/home-news/sgt-alexander-blackman-the-case-for-and-against-the-royal-marine-who-murdered-a-wounded-unarmed-10508375.html

International Law, 4th edition, Malcolm D Evans

Geneva Convention I


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