2012 Missions Abroad and Complexity...

Ari-Matti Nuutila: Missions abroad and complexity of the Criminal Law Frame. In European Common Defense and Criminal Judicial Area (2012), c. 40 pages. Forthcoming. AGIS Research Project "European Defense Policy And Cooperation In Criminal Matters".

 

MISSIONS ABROAD AND COMPLEXITY OF THE CRIMINAL LAW FRAME

Ari-Matti Nuutila

 


 


1. Introduction: Finnish forces as part of international peace keeping and crisis management operations


Finland has been participating in peacekeeping operations already almost 50 years. The year 2006 was the 50th anniversary of Finnish peacekeeping. Why is this small northern country involved in the international peacekeeping or crisis management operations so actively? It is clear that participation in the international peacekeeping is basically the obligation of each capable country within the international community. While the motivation also behind the Finnish participation has always been solidarity towards the international community, it should not be forgotten that Finland, as well as most countries, believes that it can enhance its national security by promoting international peace and security. The Finnish participation to peacekeeping operations is regulated by the Act on Peace Support Operations (514/1984, amended by Act 750/2000).


1.1. The scope of peacekeeping


The scope of Finnish peacekeeping is regulated by Section 1 in the Act on Peace Support Operations. According to Section 1, paragraph 1, Finland may participate in military crisis management and peace support (hereinafter peacekeeping), based on a decision by the United Nations (UN) or Organization of Security and Cooperation in Europe (OSCE) decision that aims at preserving international peace and security or protecting the execution of humanitarian aid and the civilian population.

Finnish legislation is based on the central role of the United Nations Security Council (UNSC), which according to the United Nations Charter is responsible for taking action in order to maintain or restore international peace and security. However, the work of the UNSC has constantly been compromised by the use of veto by its permanent members. For instance, in 1998 China used veto in the Security Council and blocked the continuation of the UN mandate to the preventive military operation in the Former Yugoslavian Republic of Macedonia (FYROM). The lack of UN mandate obliged Finland to withdraw its peacekeeping troops from FYROM. In 2000 as a result of the above mentioned, Finland made an amendment to Section 1 of the Act on Peace Support Operations in order to enable Finnish troops to continue in the field under special requirements. After the amendment Finnish peacekeeping organization may participate in humanitarian assistance or protect it on the request of UN special organization or agency. The aim of the amendment was to guarantee the security of civilian population in the operation area where Finnish troops would be already deployed and the UN mandate could not be retained due to the political reasons. However, this particular possibility has never been used.

As already mentioned, The United Nations, through the UNSC, is the main actor in mandating international crisis management operations. However, the UN is confronted with the idea of its authority being compromised. As practical examples in this issue could be used military operations both in Kosovo (NATO bombings in 1998) and especially in Iraq (US led intervention from 2003 onwards). While the UNSC withholds the primary right to take international action, the other side of the coin should be a certain accountability and obligation to act in situations clearly constituting a threat to international peace and security. In practice, it is not the case. It is too often when UNSC paralyzes and is unable to act, as a result of political situation.

According to the Section 1, paragraph 3, Act on Peace Support Operations shall not apply to participation in coercive military measures governed by articles 42 or 51 of the UN Charter. This Section is clearly a safeguard for the Finnish Security and Defense Policy. The main idea of this Section is that even if the UNSC authorizes coercive military operations, Finland will not participate in those operations. The military peace support operations in which Finland will participate are nationally interpreted not to be coercive by their nature.

Parliamentary proceedings have somewhat clarified the meaning of Section 1, paragraph 3. The Parliament has interpreted this Section in a way that Finland can participate in enforcement operations aiming at the implementation of Peace Agreements. Although these kinds of operations are based on the Chapter VII of the UN Charter, the success of the operations is mainly based on the Peace Agreement and showing international will to use force, as well as using force under strict regulations if needed. The Parliament has interpreted this category of operations in a way that they do not include coercive element, although operations may be authorized by the Article 42.

In practice, the national decision making process related to NATO led operation KFOR in Kosovo was a cornerstone in evaluation of the scope of Finnish peacekeeping according to the Section 1 of the Act on Peace Support Operations. The Defense Committee of Parliament clarified in its statement that it is possible for Finnish peacekeeping troops to use force also to enforce the military tasks appointed to the peacekeeping unit, in addition to the traditional self-defense. Statement continued that the use of force always has to be reactive and restricted, because national legislation does not authorize active, initiative and unrestricted use of force, which aims at controlling a conflict, restoration of peace or suppressing hostilities by means of war.

It was also notified in the Committee statement that Finnish terminology is not consistent with the international terminology. Committee stated that KFOR operation is clearly a peace enforcement operation, which does not include the elements of Finnish terminology of peace enforcement. According to the Committee the Finnish term peace enforcement (rauhaan pakottaminen) includes as elements of initiative, coercive action close to attack. Committee finally stated that KFOR mandate does not include these elements.

It is evident that above mentioned thinking will be challenged also in Finland when the EU Constitutional Treaty will come into force and the European Defense cooperation within the EU deepens. The European Union Constitutional Treaty, and its articles concerning the common security and defense policy, will create a new legal basis for military cooperation within the EU. This legal process will create a new framework also to the development of European Union military crisis management operations. Already the Amsterdam Treaty included a wide spectrum of military crisis management tasks. These tasks, namely the Petersberg’s tasks, included humanitarian and rescue tasks, peacekeeping tasks and tasks of combat forces undertaken for crisis management, including the restoration of peace (rauhan palauttaminen, see TEU art.17).

The Constitutional Treaty widens the scope of the Petersberg’s tasks to joint disarmament operations, military advice and assistance tasks, as well as to peace-making and post-conflict stabilization operations. Constitutional Treaty creates also a legal basis to use all above mentioned tasks to fight against terrorism, including the support to third countries in combating terrorism in their territories.

It should be noticed that in addition to the progress in legal framework, also the European security and defense policy is moving towards more active development of military capabilities in order to enable EU to respond in more demanding crises situations in the future. Although the Finnish defense forces have certain capabilities to participate in above mentioned tasks, Finland should evaluate its internal legislation in order to guarantee the possibilities to fully participate in those tasks without national legislative restrictions.

In addition to the Treaty articles governing crisis management, Finland should also clarify its position to the Article I-40.7 concerning the collective self-defense within the EU. Article creates a legal obligation to the Member States to give aid and assistance by all means in their power, in accordance with Article 51 of the United Nations Charter, if a Member State is a victim of armed aggression on its territory. However, according to the wording of the Article, this obligation shall not prejudice the specific character of the security and defense policy of certain Member States. It is quite clear that Finland is one of these “certain Member States”. It is also clear that this clause is included as a compromise text based on the demand of non-NATO countries. Members of NATO naturally have similar obligation in relation to other NATO Member States. The nature of EU “common self-defense” and its different interpretations should be clarified before these obligations comes legally binding.


1.2. National decision making process concerning participation to international peacekeeping operations


Decision making process related to participation to the peacekeeping operations is regulated in the Section 2 of Act on Peace Support Operations. On the proposal of the Government, the President of Republic shall decide on the participation and termination of participation of peacekeeping operations in each case separately. Decision is based on the proposal of the Government.

The Parliament is also engaged in the decision making through different procedures. Two different procedures are the so called “Parliamentary consultation procedure” and “Government’s report procedure”. Through these procedures Parliament is always involved in the decision making related to peacekeeping operations.

Before introducing the proposal to deploy peacekeeping force, the Government shall consult the Foreign Affairs Committee of Parliament. The Foreign Affairs Committee shall also be consulted if major changes are planned in the tasks of the Finnish force.

When the rules of engagement of the peacekeeping force are planned to be wider than in traditional peacekeeping, the Government must consult Parliament by submitting a report detailing the rules of engagement in the operation in question prior to introducing proposal. The term “traditional peacekeeping activities” is not, however, defined in the Act on Peace Support Operations itself, or in the preparatory documents. The procedure shall be the same if a widening of the rules of engagement of the peacekeeping force is planned during the peacekeeping operation. The Parliament will discuss on the Government’s report in its plenary session.

While the purpose of the Section 2 was to create a procedure for exceptional situations, it is nowadays the main procedure in national decision making on participation. The reason for this is that after the end of Cold War, international community has been more willing and able to intervene in crises. This means that also the nature of international military operations and operational environment has changed. International community has also been able to respond and intervene in certain crises earlier than before. This has led to a situation where the tasks for the peacekeeping forces has changed from the monitoring of border or ceasefire lines to securing and restoring a security and order in the area under their responsibility. Tasks may include enforcement of movement restrictions, riot control activities, different kind of house and vehicle searches as well as arrests and detention of persons. Tasks may also include disarmament and arms control aspects, as well as different reconstruction elements. These tasks demand clearly wider possibilities to use armed force, if considered necessary.

Wider possibilities to use force are justified also from the force protection point of view. The peacekeeping forces are usually deployed on an area with different groups of armed groups and/or militia, whose aims are not necessarily clear. This might create a security threat not only to the local population but also to the international peacekeeping forces. It can be said that the operational environment has basically become more demanding and more unpredictable than before.

Due to the above mentioned issues, it is only reasonable that organization responsible for the execution of the peacekeeping operation will authorize forces with a rather wide possibility to use armed force. From the national perspective this has meant that a decision making procedure, which was designed for the exceptional situations, has to be used in basically all national decision making concerning participation in peacekeeping operations. This is one reason why the Finnish Act on Peace Support Operations should be taken under review.


1.3. Administrative issues of Finnish peacekeeping organization


Before going into details related to the military and criminal procedures applicable to peacekeeping organization, it is necessary to describe its administrative structure. Peacekeeping organization belongs to the operational direction of the organization, which is responsible for the execution of the operation (i.e. UN, NATO or EU). According to Section 3 of Act on Peace Support Operations, Finnish peacekeeping organization shall form part of Finnish Defense Forces and shall be subordinate to the Defense Staff. Internally, the peacekeeping organization shall observe military order.

According to Section 14 of Act on Peace Support Operations, the Chapter 45 (Military offences) of the Penal Code is applicable to the personnel belonging to the peacekeeping organization. However, the provisions concerning crimes committed in time of war, as referred to in the Military Court Proceedings Act (326/1983), shall not apply to crimes committed by peacekeeping personnel in the mission area. The disciplinary action in the peacekeeping organization will be taken under the Military Discipline Act (331/1983).

For peacekeeping personnel, according to Section 15 of the Peacekeeping Act, the District Court of Helsinki shall be the competent court. The court may also hold a trial in the mission area if needed. This has, however, not happened.


1.4. Status of peacekeeping forces under international law


Basically, peacekeeping personnel are considered as non-combatants. It should be, however, noticed that a status of combatant is a question of a fact, which should be analyzed according to the factual actions of military force. The situations should be considered according to the 1949 Geneva Conventions and their 1977 Additional Protocols.

In case where a threshold of international or internal conflict is met, it is clear that international humanitarian law applies and parties to a conflict are considered as combatants. This, however, is not the main rule in peacekeeping operations. Without going into details in this issue, it is though possible that under certain deteriorated conditions also peacekeeping personnel might find themselves in situations at least close to conflict situation.


1.5. International instruments related to jurisdiction and status of forces


The main documents concerning the legal status and jurisdiction on forces are the NATO-SOFA and PfP-SOFA. Actually, the content of these documents are similar but PfP-SOFA is covering the States in the Partnership for Peace program, whereas NATO-SOFA applies only to NATO Member States.

Also European Union Member States have reached an agreement on EU SOFA, which is at the moment in national process in the Member States. While the national proceedings on EU SOFA are not yet finished, it is reasonable to concentrate in this article to the NATO/PfP-SOFA. It should also be noted that the applicability of the EU SOFA in the future depends on the willingness of Member States taking part in international operations. While the practice in current operations is widely based on the NATO/PfP-SOFA, it might take a while before EU SOFA will become a practical tool in peacekeeping operations of the European Union.

Without going into details in the Finnish system of accepting and bringing into force of international obligations in Finland, it should be noticed that PfP-SOFA is incorporated to the Finnish legislation and is considered to be in force in Finland as a national law. This means that PfP-SOFA regulations are comparable to national law provisions in Finland.

However, in this context one detail must be mentioned. Finland included in ratification documents a reservation concerning the authority of foreign Courts to act on the territory of Finland. According to the reservation, Finland does not recognize the foreign Courts authority to exercise their powers on the Finnish territory. Finland does not deny the authority as such according to the SOFA regulations (sending State jurisdiction to their forces, which Finland does not do itself), but it is only the national Courts (and ICC and certain other international courts), which are authorized to exercise executive powers in Finland. This reservation does not apply to immediate, disciplinary measures, which are necessary to maintain order and security of forces. These measures, exercised by sending State authorities, can therefore be taken also on the territory of Finland. Measures could include for instance arresting a suspect of certain military offence under sending State jurisdiction in order to send him/her to home country for legal proceedings.

It is necessary to take up certain features of applicability of PfP-SOFA in relation to the jurisdiction of Finnish peacekeeping forces and military personnel of these forces abroad. The main provision on jurisdiction is the Article VII of the NATO/PfP-SOFA. According to the Article VII, Section 1.a, the military authorities of the sending State shall have the right to exercise within the receiving State all criminal and disciplinary jurisdictions conferred on them by the law of the sending State over all persons subject to the military law of that State. Sections 2 and 3 define the jurisdiction in different offences between the sending State and receiving State.


2. Jurisdiction


2.1. Ordinary crimes and military offences


The competence of the Finnish criminal justice system is very wide, in the same way as in all the other Nordic criminal justice systems. Obviously, the starting point is that offences committed in Finland or connected with a Finnish vessel or aircraft, belong to the Finnish jurisdiction (the territoriality principle, see Penal Code, Chapter 1, Sections 1 – 2). To be more precise, concerning the flag principle, Finnish law applies while the Finnish vessel was in the territory of a foreign State or the Finnish aircraft was in or over such territory “and the offence was committed by the master of the vessel or aircraft, a member of its crew, a passenger or a person who otherwise was on board”. This situation, however, will probably not be reality under the present Act on Peace Support Operations, as Finnish vessels are not yet sent abroad.

Furthermore, also offences “directed at Finland” fall inside the scope of application of the Finnish Penal Code (Ch. 1, Section 3). This is the case, e.g., if the offence has “seriously violated or endangered the national, military or economic rights or interests of Finland, or if it has been directed at a Finnish authority.”

The Finnish jurisdiction protects all Finns (the so called passive personality principle). According to Ch. 1, Sect. 5, Finnish law applies to an offence committed outside of Finland that has been directed at a Finnish citizen, a Finnish corporation, foundation or other legal entity, or a foreigner permanently resident in Finland if, under Finnish law, the act may be punishable by imprisonment for more than six months.

Therefore, already on this basis criminal acts against Finnish peace maintenance troops can very often be understood to fall under the Finnish jurisdiction. The problem obviously concerns judicial cooperation in criminal matters and the practical need or possibilities to have the foreign suspect extradited to Finland. Usually this would be impossible, as at least clear majority of countries do not refuse to extradite their own citizens. The case is another if the European arrest warrant can be used, that is if a soldier from another commits a crime against a Finn. Of this we have so far no experiences. So far crimes committed against Finnish troops abroad are reported to the local police authorities, but no other measures are taken, not even a follow up of how the cases proceed on the local authorities.

Concerning offences committed by Finnish military personnel, again the Finnish jurisdiction is wide. According to Ch. 1, Sect. 4, Finnish law applies to all military offences defined in chapter 45 that have been committed outside of Finland by a soldier. Also otherwise, Finnish law applies to an offence committed outside of Finland by a Finnish citizen or a permanent resident (active personality principle, Ch. 1, Sect. 6). However, if the offence was committed in territory not belonging to any State, it is a precondition for the imposition of punishment that, under Finnish law, the act is punishable by imprisonment for more than six months.

According to the normal procedure, if a Finnish soldier commits a crime abroad in a crisis management operation, either as a soldier (a military offence) or during his free time (assault, damaging of property, drunken driving, etc.), he is sent home and his offence is tried at the District Court of Helsinki as the first instance. We do not have special military courts or military prosecutors in Finland, not to speak of “field military courts” abroad. Only disciplinary measures can be used on the field in the unit of the soldier.

On the basis of the traditional cooperation between the Nordic countries, even other permanent Nordic residents or Nordic citizens fall under this rule. Therefore, for example a Danish soldier can be prosecuted in Finland without restrictions on the basis of any of his offences committed abroad. This is, however rare and has never taken place concerning military offences.

Finnish law applies also to an offence committed outside of Finland which, under Finnish law, may be punishable by imprisonment for more than six months, if the State in whose territory the offence was committed has requested that charges be brought in a Finnish court or that the offender be extradited because of the offence, but the extradition request has not been granted (Ch. 1, Sect. 8). This can be the case if, for example, Finland has granted asylum to a person, who is requested to be extradited to his home country on the basis of offences in an armed conflict, even if the offence, the offender or the victim has absolutely no connection to Finland. In that kind of situation also the human rights of the requested person have to be taken into account carefully, as the ECHR has several times evaluated cases in which the extradition could possibly mean discrimination, e.g., on political or religious grounds.

With such a wide jurisdiction, the Finnish Penal Code requires usually dual (or double) criminality for offences committed abroad. According to Ch. 1, Sect. 11, if the offence has been committed in a foreign State, the application of Finnish law may be based on passive or active personality principle (and the foreigners can be prosecuted on the basis of Ch. 1, Sect. 8) only if the offence is punishable also under the law of the place of commission and a sentence could have been passed for it also by a court of that foreign State. In this event, a sanction that is more severe than what is provided by the law of the place of commission shall not be imposed in Finland.

Usually a criminal case shall not be investigated or tried in Finland without a prosecution order by the Prosecutor-General, if the offence was committed abroad. This is required in order to have a unified and consistent practice in dealing with crimes committed abroad. However, the order by the Prosecutor-General is not required, for example, if the offence was committed by a Finnish resident and it was directed at a Finnish resident (e.g. mutual assaults between Finnish soldiers abroad), or the offence is to be tried as a criminal case in accordance with the Military Court Procedure Act (326/1983).


2.2. International offences and crimes against international law, in particular Art. 17 of the ICC Statute


Finnish Penal Code has a wide list of international offences applied to all offences committed outside of Finland, where the criminal nature of the act, regardless of the law of the place of commission, is based on an international agreement binding on Finland or on another statute or regulation internationally binding on Finland (international offence). In fact, Finland has ratified all relevant international agreements concerning international offences.

These include, among others, war crimes, crimes against humanity, genocide, other breaches of Geneva Conventions, breach of the prohibition of chemical weapons, hijacking (of an aircraft, a vessel, a train or a bus), criminal sabotage in air traffic (starting a fire, blowing the aircraft, or endangering the aircraft, etc.), all terrorist offences (besides the main offences also preparation of the offence to be committed with terrorist intent, directing of a terrorist group and promotion and financing  of a terrorist group, etc.). Concerning traditional crimes, for example narcotic offences are listed as international crimes. In these cases, no requirement of dual criminality is required. However, the prosecution order by the Prosecutor-General is usually required in order not to end up to jurisdiction conflicts with foreign States.

Besides the international offences, the principle of dual (or double) criminality does not apply to, e.g., offences against administration of justice by the International Criminal Court, some sexual crimes violating juveniles or child pornography.


2.3. Procedural law


The investigation is done by military police. The offence can, according to the Military Procedure Act, be tried in a disciplinary procedure by a superior, competent officer. If the case is serious enough, it will be tried in court proceedings, and the officer informs about the possible crime to a prosecutor in Finland. There are no special military courts in Finland, and these cases are dealt with in the general District Court of Helsinki.


3. Applicable substantive law


3.1. Military offences


In Finland, military offences are described in the Ch. 45 of the Finnish Penal Code. Without going to details, these include, e.g.,  service offences (usually clear breaches of military rules of engagement, Sect. 1 – 4), sentry offences (mostly leaving the guarding post without permission, Sect. 5 – 8), absence offences (Sect. 9 – 10), obedience offences (from violent resistance to a superior officer to insubordination to rules of conduct, Sect. 11 – 15), and offences by a superior offences (usually mobbing or other abuse of superior position against the subordinate, Sect. 16 – 17).

There are also some special provisions and special scales of punishment (Sect. 20 – 26) concerning offences in wartime, such as violation of combat duty or desertion of the troop. These, however do not apply to crisis management operations, but only to wartime, the definition of which is a complicated one and the declaration of which requires the consent of the Parliament. Crisis management operations of the EU will clearly not fulfill the criteria and therefore the peace time rules are applied.

Concerning the procedure, in lenient cases the offence can be dealt in a disciplinary procedure, in which the sanctions are - - -. However, in more serious cases the offence must be dealt with in a District Court in Finland. If a soldier commits a general offence (theft, assault, etc.) in duty, he can be also responsible of violating military rules of engagement. Therefore, the case can be dealt abroad in a disciplinary procedure and after that in a normal criminal procedure in Finland in the District Court of Helsinki.


3.2. Crimes against international law


The Finnish foreign policy has traditionally emphasized humanitarian principles in war and peace and measures to strengthen the international rule of law. Therefore, Finland has actively supported the international criminal tribunals for Rwanda and the former Yugoslavia, and the speedy establishment of the ICC. Finland wanted to ensure its place within the first 60 States Parties of the Rome Statute and, at the same time, wanted to ratify the Statute before the end of 2000, the agreed-upon goal of the Member States of the EU. This also occurred. Finland ratified the Rome Statute 28 December 2000 as the 8th European Union Member State and the 27th State Party in the world. The Rome Statute and the implementing legislation were accepted in the Parliament unanimously.


3.3. The Finnish Approach to Implementation of the Rome Statute


The process of implementing international treaty obligations varies significantly from state to state, according to the legal background and constitutional requirements of each state. In some states, the rules of a treaty automatically become a part of national law upon ratification of the treaty (monist system). Other states, including Finland, are obliged by their constitutions to prepare implementing legislation before ratifying or acceding to any international treaties (dualist system). The latter procedure inevitably slows down the ratification and implementation process, but also provides an opportunity for more widespread consideration of the impact of the Statute on national level.

In order to comply with the Rome Statute, States Parties may either create a single piece of legislation that covers every aspect of implementation, or amend all relevant provisions of their existing legislation separately. The Finnish implementation of the Rome Statute had a similar approach than the one chosen when the Acts on the jurisdiction of the International Criminal Tribunals for the Former Yugoslavia and Rwanda and on the co-operation with those Tribunals were enacted in Finland in 1994. Neither a single piece of legislation nor amending all relevant pieces of legislation separately seemed appropriate to the task.

A single piece of legislation was taken as the starting point. For example, as a State cannot refuse when asked to surrender a person to the Court, amendments to existing laws on extradition were not seen as sufficient. The provision concerning surrender is therefore part of the Implementation Act of the Rome Statute. The Implementation Act covers, for example, executing requests for arrest and surrender of persons to the ICC, collecting and preserving evidence for the ICC, enforcing fines, forfeiture and reparations orders, and other provisions in the Statute relating to State co-operation.

On the other hand, revisions to criminal legislation were made by separate amendments of all relevant sections of the general Finnish Penal Code. In Finland the principle of legality and the requirement of transparency of criminal legislation have especially today a very strong standing. Amending existing sections in the Penal Code was not especially difficult, as the Finnish courts have already been exercising universal jurisdiction over crimes against humanity, war crimes and genocide since 1995. Therefore, the changes in the Finnish Penal Code concerned only offences against the administration of the ICC, offences against the ICC and offences in public office of the ICC. War crimes, crimes against humanity and genocide were already in the Penal Code – defined even wider than in the Rome Statute.

It can be mentioned that the Government had proposed a special domestic provision to the Implementation Act to be applied against hostile witnesses. According to the proposal, if a witness does not enter the ICC, departs from the hearing or refuses to give a solemn undertaking or answer questions without a legal justification, a fine could have been imposed in Finnish Court. The Rome Statute did not specifically require this kind of regulation. In fact, according to Article 93(1)(e) of the Rome Statute, the States Parties must facilitate the voluntary appearance of persons as witnesses or experts before the Court. This was one crucial compromise in the negotiations for the Rome Statute. Therefore, no special regulations concerning hostile witnesses were at this stage enacted in Finland. Obviously, there is a possibility that a person enjoying asylum in Finland refuses to testify in The Hague, but so far no special legal arrangements have been made to confront this issue.


3.4. Cooperation with the ICC


The ICC is no ordinary international regulatory or institutional body. It has the potential power to punish – and hopefully deter – “the most serious crimes of concern to the international community as a whole”. However, this potential will only be realized through the full co-operation of States Parties, since there is no international “police force” to assist the Court with its investigations or “enforcement agencies” to enforce its sanctions.

Finland already had national legislation pertaining to international legal assistance and extradition, and there were only minor difficulties in introducing the measures required by the Rome Statute. The Finnish Act on International Legal Assistance in Criminal Matters from 1994 will be applied, rendering the legal assistance required by the Statute to a large extent. New provisions were needed especially for witness protection, for an exception of not surrendering our own citizens, and for not applying the principle of dual criminality in cases concerning cooperation with the ICC.

In spite of our legislation concerning war crimes, genocide and crimes against humanity, in case the Court’s jurisdiction will be established over the crime of aggression, the question of dual criminality becomes relevant. In that situation Finland would have to surrender persons suspected of such a criminal act, including Finnish nationals, despite the fact that the crime of aggression is not punishable as such under the present Finnish Penal Code.

The States Parties are not required to accept sentenced persons, in order to enforce sentences imposed by the Court. According to the Article 103 of the Statute, a State has to indicate its willingness to accept them to serve their time in a domestic prison. So far Finland has not decided whether to accept persons convicted by the ICC in Finnish prisons. However, Finland has agreed to accept persons sentenced to imprisonment in the Yugoslavia Tribunal. Two of them were already transferred to Finnish prisons in 2000.


3.5. Definitions of crimes


The ICC Treaty refers to several other internationally binding treaties, which already set the signatories of the treaties under the obligation to include respective criminal provisions in their national law.  However, the provisions are basically autonomously defined without further reference to those treaties in which they had previously been defined. The same applies to the general doctrines of criminal liability. There is an emphasis on strengthening the principle of legality in various ways and restricting the jurisdiction of the ICC to the crimes defined in the list of criminal provisions.

The Finnish ratification procedure was easy. This was based on the view that the current crime definitions, dating from the year 1995, adequately covered the definitions of crimes in the Rome Statute. Some of the criminal provisions, especially homicide, causing bodily harm, or sexual offences defined in Article 7 of the Statute on crimes against humanity, do not have an equivalent in Chapter 11 of the Finnish Penal Code, but the crimes are, of course, punishable otherwise in a severe way. The Finnish domestic prohibitions on the violations of international humanitarian law cover the obligations stemming from international treaties in the field, including the Rome Statute. In fact, in several aspects they seem to go even much further than the treaties require.

In the first phase, in 1974, a separate Chapter 13 bearing the title “On Offences against Humanity” was created in the Finnish Penal Code. The Chapter included only a limited number of international crimes, while provisions on some of the treaty crimes were still left in other parts of criminal legislation. The intention was to codify only the most severe criminal provisions of an international character. Despite the title of Chapter 13, it included provisions on infringements of human rights, war crimes, genocide and incitement to discrimination against a population group. Especially the provision on war crimes was relatively detailed. Examples on the acts fulfilling the elements of the crime were provided in the provision, although the list ended in a general clause containing an open reference to international law: “or in another manner breaches the provisions of an international treaty dealing with the waging of war and are binding on Finland, or breaches the rules of warfare or customs that are generally recognizes and are in accordance with international law”.

This technique of an open reference to sources of international law was at that time regarded as an appropriate means of fulfilling the contradictory requirements of the principle of legality and those of good law drafting in an area where treaties are only one basis for criminal liability and where new treaties are implemented on a regular basis.

The regulations were scrutinized in 1995, when a large general reform of the Finnish Penal Code had proceeded to the stage of taking Chapter 13 under revision. At this point, the general tendency was to revise old-fashioned and casuistic crime definitions and replace them with pedagogically more simple and abstract definitions. This required abridging the provisions and omitting most of the concrete examples of criminal acts. The Chapter was also honored with the assignment as the first chapter, Chapter 11, on definitions of crimes. The new title also reflected more accurately the contents of the chapter: “On War Crimes and Crimes against Humanity”.

The most obvious example is preparation of genocide, according to which a person “who for the purpose of genocide conspires with another to commit genocide, or makes a plan for genocide, shall be sentenced for preparation of genocide to imprisonment for at least four months and at most four years.” The Convention on the Prevention and Punishment of the Crime of Genocide or the Rome Statute do not require a corresponding criminalization, but in Finland and some other countries the preparation of genocide is considered to be so dangerous that it shall be a crime as such, even if an attempted genocide never would occur.

Also the definition of genocide is broader in the Finnish Penal Code than in the Rome Treaty. The Rome Treaty protects “in whole or in part, a national, ethnical, racial or religious group, as such”; the Finnish Penal Code covers also “other comparable groups”. The national protection is meant to cover also, e.g. immigrants, minority language groups and other relatively stable folk groups. The definition can, however, be problematic from the point of view of the principle of legality.

The Finnish definition of a war crime contains an open reference to international law, just as its predecessor did: “(…) otherwise violates the provisions of an international agreement on warfare binding on Finland or the generally acknowledged and established rules and customs of war under public international law (…)”. The open referral to international law leads to a monistic solution in this case, although generally the method of implementation in Finland is dualistic.

The definition of a war crime itself is open to the external influence of international legal sources. It even opens the elements of the crime to jus cogens, the disputed section of customary international criminal law binding the States even without their consent. This approach clearly has its dangers. States may often disagree on which norms fall under customary international law. Especially, this type of referral might prove to be problematic in relation to the principle of legality.

Also the domestic definition of “violation of human rights in a state of emergency” is in some cases broader than the definition of “crimes against humanity” in the Rome Statute. On the other hand, the difference is only technical, as the domestic definition of war crimes is somewhat narrower than that in the ICC Statute. Therefore some cases, which would be dealt with as war crimes in the ICC, would establish a “violation of human rights in a state of emergency” in a Finnish court. Also here the Finnish Penal Code refers directly to international agreements and the established rules of public international law instead of a concrete list of criminal behavior.


3.6. Law on damages


Concerning the damages, the Nordic legal systems differ to some extent from other European ones. If a soldier is a victim of a crime in his line of duty, the State as the employer bears the responsibility for damages in the first hand. The covered damages can be material ones (clothes, medical bills, loss of income, etc.), but also concern pain, mental suffering, or cosmetic harms. Of course, social security concerning disabilities or loss of full working possibilities is covered as well. The employer – the Finnish Military Forces – can in theory sue the person who had caused the damages, but this does not take place in practice because of practical problems.

If a soldier is a victim of a crime outside his line of duty (during his free time), also he has the right to get compensation from the Finnish State, even if he is abroad only temporarily or even as a tourist. Afterwards the State may seek to get the compensation from the offender, but again, this does not usually take place.

Concerning a Finnish soldier causing damage to a civilian in the line of duty, usually the Finnish Army agrees outside of a Court the amount of the damage and pays it. The Army as the employer is liable for damages caused by a civil servant on the line of duty. Also in this case the State can sue afterwards the soldier especially if the damage was caused intentionally, but this does not happen in practice.

 

4. De lege ferenda


The Finnish Act on Peace Support Operations must be reevaluated in the light of the development in the European Union. Also the changes in the international security environment require the Finnish legislation to be scrutinized, in order to provide enough space for political evaluation of Finland taking part in the crisis management operations.

On the other hand, the Finnish Act has several important corner stones, which probably will not be changed. These include first the central role of the Finnish Parliament in the decision making process of whether Finland takes part in the operation. Second, all persons taking part in peace support operations do it voluntarily. And third, the central role of UNSC and OSCE, international law and international human rights should also in the future govern the Finnish participation in crisis management operations, in spite of our Partnership for Peace Agreement with NATO.

The Finnish Penal Code, the Military Discipline Act and the Military Court Proceedings Act seem to function relatively well in relation to crisis management operations. The possible problems may arise if Finnish troops are set under foreign commandership and the regulations concerning, e.g., superior’s orders and their binding effect differ too much.

UN mandate. – As mentioned above, the role of UNSC, OSCE and international law will probably also in the future be the main rule in the Finnish Act. Finland is member of the Partnership for Peace agreement of NATO and there is political discussion whether Finland should join NATO, but the possible membership should not pose overwhelming legal problems.

However, binding the Finnish forces joining to crisis management operations to an explicit decision of UNSC or OSCE has already now been problematic in some cases. The decisions of UNSC are not always clear in authorizing a military operation; rather they declare a need for an international operation on a certain geographic area and ask the Member States to participate in an operation, for example, on request of the State in question.

One example is the ongoing operation in Macedonia (FYROM), which is run by the European Union and which also Finland is taking part in. In deciding whether to participate in an operation or not, the Finnish Parliament should concentrate on factors affecting the realization of the operation, such as the compatibility of the operation and international law and international human rights, and not only on the mandate given by the UN. This should be rewritten to the Act.

The role of the EU in the future. – It is evident that the Finnish Act will be challenged when the EU Constitutional Treaty comes into force and the European defense cooperation within the EU deepens. The Treaty will create a new legal basis for military cooperation in the EU as a regional security organization within the UN. The Amsterdam Treaty included already a wide spectrum of military crisis management tasks (the Petersberg’s tasks). The Constitutional Treaty widens the scope of the Petersberg’s tasks to joint disarmament operations, military advice and assistance tasks, as well as to peace-making and post-conflict stabilization operations. The Finnish Act clearly does not yet allow all these activities abroad, because in practice these activities will not have as their legal basis UNSC or OSCE. Usually these new activities will be rather harmless and include sending military experts abroad, and are thus not “politically sensitive” issues in Finland.

Furthermore, the so called solidarity clause of the EU Constitutional Treaty requires changes in the Finnish Act. The Treaty creates a legal basis to use all above mentioned measures to fight against terrorism, including the support to third countries in combating terrorism in their territories. The clause has already been declared to be taken to use in the EU after the terrorist attack in Madrid subway. In the first place the cooperation will take place between police and rescue personnel, but also military help (in the form of personnel or equipment) in cases of terrorism, natural disasters and major accidents fall within the clause, at least in principle. The operations will be headed by the authorities of the requesting Member State without authorization of UNSC or OSCE. Finland does not have so far legal mechanisms to operative actions abroad outside of the Act on Peace Support Operations. Although the Finnish defense forces have certain capabilities (and also expertise) to participate in the above mentioned special tasks, Finland should evaluate its internal legislation in order to guarantee the possibilities to fully participate in those tasks without national legislative restrictions.

The nature of operations, use of force and the national decision making. – As mentioned above, also Finland has joined besides “traditional peacekeeping operations” also other kinds of military operations. This has happened under the widening of the scope of application of the Act in 2000.

When the rules of engagement of the peacekeeping force are planned to be wider than in traditional peacekeeping, the Finnish Government must consult Parliament by submitting a report detailing the rules of engagement in the operation in question prior to introducing proposal. The procedure shall be the same if a widening of the rules of engagement of the peacekeeping force is planned during the peacekeeping operation. The Parliament will discuss on the Government’s report in its plenary session.

While the purpose of the Section 2 was to create a procedure for exceptional situations, it is nowadays a main procedure in national decision making on participation. The reason for this is that after the end of Cold War, international community has been more willing and able to intervene in crises. Also the nature of the international military operations and operational environment has changed and will probably change even more in the future. International community has been able to respond and intervene in certain crises earlier than before.

This has led to a situation where the tasks for the peacekeeping forces has changed from the monitoring of border or ceasefire lines to securing and restoring a security and order in the geographical area of responsibility. Tasks may include enforcement of movement restrictions, riot control activities, different kind of house and vehicle searches as well as possible arrests and detention of persons. Tasks may also include disarmament and arms control aspects, as well as different reconstruction elements. These tasks demand wider possibilities to use armed force, if considered necessary. Wider possibilities to use armed force are justified also from the force protection point of view. The operational environment has become more demanding, more unpredictable and more dangerous than before.

The Finnish national law should be reevaluated from the point of view that exceptional procedures may not become the main rule of the Parliamentary procedure. For example, the consulting procedure between the Government and the Parliament may be too inflexible and formal in situations where the use of force is based on acceptable and widely accepted, traditional methods and where the time restrictions do not allow postponing the use of force because of the parliamentary procedure. It is only a reasonable and practical necessity that the organization responsible for the execution of the peacekeeping operation will also authorize forces with wide possibility to use armed force. However, this requires clear changes of law in Finland, and a thorough political and societal discussion.

Differences in Penal Codes. – From domestic point of view, the Finnish Penal Code is not in need of changes in this respect. Also the military disciplinary procedures seem to function on a national basis sufficiently well. Obviously the differences between the Member States of the EU are huge, but if the main principle is that every State takes care of its own procedures. Living in a diversity of procedures in the EU is acceptable.

However, if soldiers from different States join the same forces with a common rank of orders, especially the use of forcible measures (Finnish Penal Code Ch. 45, Sect. 26a) and the common relevance of the order of a superior (Sect. 26b) can cause serious problems. This is not the case yet, but may be in the next few years.

According to the Finnish law, a soldier who is on duty as a sentry or as military police and who meets with resistance has the right to use only such forcible measures as can be deemed justified in view of the security of the military unit or the object being guarded, the nature of the duty or service, and the dangerousness of the resistance. On these grounds a sentry has the right to use forcible measures also if, despite his command to stop, someone approaches a guarded area to which entry is prohibited.

In many Member States of the EU the right to use forcible measures is clearly wider, covering all necessary measures to fulfill his obligations in securing his unit. The Nordic approach, in which the measures must be not only necessary but also justified (e.g. a child soldier trying to steal weapons may not be shot, not even in a non lethal way), is not all European. If the crisis management operations are run with clearly “European” multi national troops, differences in the allowed use of force can clearly pose a problem, when some of the soldiers operate according to other rules than the others.

Needless to say, the US concept of preemptive self defense falls clearly outside of the Nordic legislation concerning the use of force in military operations.

Furthermore, according to Ch. 45, Sect. 26b of the Finnish Penal Code, a soldier shall be sentenced to punishment for an act that he has committed in accordance with the order of a superior officer if he has understood that by obeying the order he would be breaking the law or his duty in service, or even if he should have understood the illegality of the order and the act it requires, taking into account the manifest nature of the illegality of the act ordered. This means that every Finnish soldier has a personal responsibility to evaluate the legality of his deeds and cannot – and is not allowed to – rely blindly on the commands given by the superior in any circumstances, not even in combating circumstances.

If, however, the act has occurred under circumstances in which the subordinate could not have been reasonably expected to disobey the order, the offender is exempt from punishment. Hence, only in exceptional circumstances of, e.g., the superior’s oppression, threat or even violence, the subordinate is free from responsibility, although he knew or should have known the unlawfulness of the command.

In clear terms, if a Nordic soldier is ordered to an act in a way which means, e.g., offending or destroying a bridge, radio station or other civilian target or otherwise violating the Geneva Conventions, he must refuse to obey the order in order to be free from personal criminal responsibility. Only if he could not reasonably have been expected not to fulfill the order, he is free from criminal responsibility because of an excuse. On the other hand, the superior must always respect the decision of the subordinate not to follow the order perceived as unlawful, and no disciplinary procedure can be opened on this kind of refusal to obey.

Again, this is not the general manner of evaluating the relationship between the superior and the subordinate in several Continental European armies. In most of the EU States the subordinate has no right or has a very limited right to question the superior’s orders – and on the other hand, the subordinates do not usually carry responsibility over their actions committed on the basis of an illegal superior’s order. This is not a problem as long as the troops from different Member States are clearly enough separated as organizations, but later on the situation can become more difficult.

There seems to be a clear need for all European basic rules or at least discussion concerning the internal command relations of an armed unit, and rules concerning the allowed use of force in duty. This requires evaluation of different kinds of cultures in different armies, but most importantly a deep evaluation of international human rights treaties and principles and their applicability to crisis management operations.

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