Ingen Lag - Straff? Straffansvar och befogenheter för svensk militär personal i internationella insatser ur ett rättstillämparperspektiv.

Abstract

INGEN LAG – STRAFF?

ABSTRACT

The thesis deals with a gap in the Swedish legislation concerning the criminal responsibility under which military personnel act in international peace operations. According to international treaties called Status of Forces Agreements, military personnel operating abroad within the territory of other states are exempted from the criminal law of the host states. In return, their home states apply its national criminal law upon the personnel instead. Thus, Swedish criminal law is applied in relation to actions taken by Swedish military forces in international operations. As a point of departure, certain actions such as murder, assault and detention of individuals impose criminal responsibility under national law. For agents of state to be able to perform their duties, which may include a certain amount of violence or other actions labeled as criminal, special legislation is enacted which exempts them from the otherwise generally applicable criminal act (”brottsbalken” in Swedish). This goes for e.g. the Swedish police, whose actions are regulated through the police act (”polislagen”). Regarding Swedish military personnel, on the other hand, no such legislation exists. The foundation upon which the authority to take action without invoking criminal responsibility rests is a loose one, and consists merely of statements in preparatory works and vague expressions in rulings by the Swedish supreme court. This poses a problem, in the sense that it is unclear under what authority, if any, the Swedish armed forces participate in international operations. I have chosen to adress this problem, not from the perspective of the legislator, but rather from that of an instance which merely applies the law. Consequently, I find from the perspective of a prosecutor that in a given case, and under certain circumstances, the lack of legislation combined with the duty to prosecute lead to the situation where an employee in the Swedish armed forces will be charged with criminal responsibility when he or she has merely followed orders and, furthermore, acted in accordance with international law. The only way to guarantee that such a situation will not occur is to enact legislation under which Swedish military personnel can act in international operations. In the final part of the thesis, I adress questions such as why such a legislation do not exist, how it could be formulated and, finally, an estimation of whether or not criminal charges will lead to a conviction.

NOTE: The thesis is written in Swedish.