New Overseas Operations Bill places the military above the law

On Wednesday 18 March 2020, the Overseas Operations (Service Personnel and Veterans) Bill 2019-21 was introduced to Parliament, and given its first reading.

The Bill outlines measures that would place a 5-year limit on criminal prosecutions against service personnel from the date of an incident. This time limit is extended to six years for civil cases involving personal injury or death. In both cases the bill only applies to overseas military operations and will only be lifted in “exceptional circumstances”.

The government says this legislation is required to protect service personnel from “vexatious” prosecutions. This is despite numerous public inquiries lifting the veil on government cover-ups and implicating British soldiers in war crimes.

More recently it was announced that thousands of complaints linking British soldiers to Iraq war crimes have been dropped. Andrew Cayley, Director of the Service Prosecuting Authority, says it is “quite possible” that none of the original allegations would see prosecutions.

Now, human rights groups fear that these new proposals will further contribute to the prevention of justice for victims. Concerns have also been raised that the bill will aid the government’s avoidance of accountability and transparency.

War crimes swept under the carpet

The Ministry of Defence (MoD) claims that all decisions of prosecutors and investigators relating to the conduct of UK forces in Iraq and Afghanistan have been “independent,” and involved “external oversight and legal advice”.

However, in November 2019, a joint investigation by the BBC and the Sunday Times revealed that alleged war crimes, including the torture and killing of civilians had been covered up by senior officers.

As part of the investigation, 11 British detectives were interviewed. They disclosed that they had uncovered credible evidence of war crimes.

Reportedly, leaks from war crime inquiries led by the Iraq Historic Allegations Team (IHAT) and Operation Northmoor, implicated a soldier from an elite SAS unit in the murder of children. Allegations were also made against the Black Watch infantry unit. These allegations included the torture, rape, and killing of detainees.

Speaking to the BBC’s Panorama program, military detectives claimed that these crimes were hidden for “political reasons”. One IHAT detective told the program that they believed the MoD deliberately avoided a real investigation: “The Ministry of Defence had no intention of prosecuting any soldier of whatever rank he was unless it was absolutely necessary, and they couldn’t wriggle their way out of it”.

Another former detective expressed their shame at the injustice stemming from the lack of prosecutions: “I use the word disgusting. And I feel for the families because . . . they’re not getting justice. How can you hold your head up as a British person?”

Despite this evidence coming to light, in 2019, Foreign Secretary Dominic Raab told the BBC: “All of the allegations, that had evidence, have been looked at”. Further to this he added that he believed that “the right balance” had been achieved in relation to investigating alleged war crimes.

Contrastingly, across 326 cases, the government has paid out £20m in compensation claims against the British Army during the Iraq war without admitting liability.

Proposed legislation “protects” veterans

The proposed legislation would create a “presumption against prosecution” for overseas Armed Forces personnel who have been accused of crimes, including torture. The time limit imposed being 5 years. This is half the time frame that was originally proposed and brought forward by MP Johnny Mercer, Armed Forces Minister in the MoD.

The Minister argues that this legislation will bring an end to lawyers “trying to rewrite history to make money”. He added that it was part of the government’s plans “to go to war on lawfare”. The Law Society interprets this phrase as an implication that solicitors with legitimate claims are acting as “enemy combatants”. It is also a statement which seemingly contradicts the assurance made by the former Secretary of State for Defence, that “the armed forces are not above the law”.

The Bill additionally proposes the introduction of a new partial defence for murder, for both past and future offences, whereby Armed Forces personnel has applied “more force than strictly necessary for the purposes of self-defence”. This would reduce a murder conviction to manslaughter.

Upon review, The Law Society deemed this partial defence wholly unnecessary, due to the courts already having established self-defence rules for prosecution in such cases. Moreover, the review highlights that there is a scarcity of cases where this partial defence would even be applicable.

On top of this, proposals include a six-year limit on civil cases in respect of historical events involving personal injury or death which took place outside of the UK.

Speaking about the Bill, Defence Secretary Ben Wallace commented: “For decades the men and women of our Armed Forces have been faced with the prospect of repeated investigations by inquest and police – despite the vast majority having acted in accordance with the rule of law and often at great personal risk”.

Shielding war criminals

Many argue that this new Bill sets a dangerous precedent, and seeks to absolve Armed Forces personnel of responsibility and remove any sense of accountability. It is perhaps surprising that even MP Johnny Mercer, the creator of the Bill, had condemned the actions of soldiers in Afghanistan and Iraq. Addressing the House of Commons on 7 January 2020, the Minister said: “There is no doubt that some of the experiences of those who came into contact with the UK’s Armed Forces in Iraq and Afghanistan were completely unacceptable”.

Reflecting on what the legislation means for the rule of law, Steve Crawshaw, the Policy and Advocacy Director of human rights group Freedom From Torture, said: “It was worrying enough that the government wanted to grant effective impunity for torture and other war crimes after 10 years. To reduce the time limit for justice still further is shocking, and an insult to survivors”. He added: “The government claims it believes in the rule of law. These proposals, from what we know of them so far, suggest on the contrary that it is ready to follow [Donald] Trump and others down the path of attacking the global torture ban which Britain helped to build. We urgently need a change of direction.”

Meanwhile, Clive Baldwin, Senior Legal Adviser at Human Rights Watch stated: “The UK government’s proposals are a sad reflection of its record of political interference to prevent justice and accountability. If this law is passed, it would set a terrible precedent for the “rules-based international order” it claims to uphold”.

Clare Collier, Advocacy Director at Liberty, added: “A war crime does not stop being a war crime after five years.This Bill is not a win for either civilians or soldiers. It’s a distraction to hide the fact the MoD has failed, and continues to fail, to provide effective investigations into allegations of wrongdoing.

The Law Society in its review of the proposed legislation has even argued that there are elements of the bill that are incompatible with international law. Specifically it highlights the potential for the Bill to violate sections of the European Convention on Human Rights, specifically Article 2 (the right to life) and Article 14 (the provision against discrimination). This is due to the European Court of Human Rights requiring states to have an “effective deterrence against threats to the right to life” and the requirement to have “adequate and effective safeguards” in relation to the use of firearms. The association also raises the issue that the legislation may be at variance with the ICC statute.

However, senior judges at ICC have recently reignited hope that justice will be delivered to some of the victims of crimes committed by the Armed Forces in Afghanistan. While the investigation will primarily focus on the US, it is likely that allegations against the UK’s Armed Forces will also emerge. Commenting on the announcement of this investigation Preetha Gopalan, the Deputy Head of UK litigation at the human rights organisation Reprieve, said: “This decision is welcome news to everyone who believes that the perpetrators of war crimes should not enjoy impunity, no matter how powerful they are”.

That being said, to date in the UK just one British soldier has served time for war crimes. Meanwhile, for thousands of victims justice has not, and potentially will not be served, as a result of this Bill. And, unfortunately, due to the COVID-19 pandemic dominating the media and politician’s priorities, it is unlikely that it will receive the scrutiny and attention it deserves and requires. If passed, this Bill will position the military above the law. Further to this, it will remove any chance of ensuring accountability. This is a deeply concerning step backwards for the UK and its justice system.