With the recent intensification of lockdown restrictions and the Brexit furore around violations of international law, another bill is slipping through parliament today [23/09]. This one is largely unnoticed.
The Overseas Operations Bill is being proposed by the Government as a necessary intervention to protect British soldiers from ‘vexatious’ legal claims against their actions whilst deployed abroad.
The Conservatives have long denounced such claims as “lawfare”. Writing in this week’s Sunday Telegraph, Minister for Veterans’ Affairs Johnny Mercer argued that soldiers’ lives are “blighted” by “a vicious cycle of claims and repeated investigations by pernicious practitioners”.
Despite widespread support from veteran MPs, a wide range of critics, including a former Chief of Defence Staff, the former Attorney General and the UN Special Rapporteur on Torture, insist the bill will fail in its stated objective and will make overseas operations worse – for soldiers, for victims of war crimes and for the UK’s standing in the world.
Here’s why AOAV believes the bill could be harmful for:
Firstly, the bill will not help ease soldiers’ peace of mind. Due to a number of other international treaties, the UK is legally obliged to investigate alleged war crimes. If it is found to be breaching that obligation, then, according to the Centre for Military Justice this “risks putting the UK on a collision course with the International Criminal Court (ICC) and makes it more, not less likely that our soldiers may find themselves before the ICC in the future”.
Despite the stated motivation of protecting “our heroes”, some aspects of the bill appear to worsen the legal standing of all service personnel. The legislation introduces a six-year time limit on any claim a soldier can make against the MOD. Previously such claims have included suing for injury due to improper equipment provided whilst deployed overseas. Last year, MOD payouts rose by 27% from 2018.
According to the All Party Parliamentary Group (APPG) on Drones, the overwhelming majority (75.61%) of civil claims made against the MOD relate to a breach in its duty of care to soldiers, with 46% of claims brought directly by soldiers; only 0.86% of claims between 2014 and 2019 arose from the Iraq war.
So whilst the Conservatives claim that the bill proves they are ‘the only party’ who will protect troops, the Centre for Military Justice sees it as “a self-serving proposal, misleadingly sold and packaged as good for soldiers.”
Victims of war crimes
The bill creates a ‘presumptions against prosecution’ after 5 years for grave breaches of the Geneva Convention, including murder, torture and inhuman treatment. When it was being drafted, torture was excluded but it has now returned. As Lt Col Nicholas Mercer, senior military legal adviser to the 1st Armoured Division during the Iraq war of 2003, wrote in the Guardian: “It is not clear who took this decision or why. As we now know from various public inquiries, the British army used unlawful interrogation techniques in Iraq and Afghanistan, which breached the UN convention on torture.
“If this bill passes into law, the government will have effectively legislated to protect itself from those allegations.”
The Government has argued that five years means there is still plenty of time for victims to come forward and seek justice and the time limit simply stops retired veterans from unfounded historical allegations. But Dr Alexandra Fowler of the Oxford Human Rights Hub argues: “Many if not most victims [of war crimes] have been prevented by both the local law and by logistics from making claims until long after the alleged abuse took place, often significantly more than six years.”
Judge Advocate General of the Armed Forces, Judge Blackett, wrote a letter to Defence Minister Ben Wallace explaining the time limitation “would encourage an accused person to frustrate the progress of investigation past the five-year point to engage a high bar for prosecution.” The MOD has previous on this. The APPG on Drones has noted that the department has previously caused delays in investigations on Iraq.
For some the non-exclusion of torture from the time limitation is simply unacceptable.
“I am dismayed that the Government is proposing to enact legislation that, as currently framed, lets torturers off the hook,” said Field Marshal Lord Guthrie GCB, who was Chief of the Defence Staff from 1997-01.
Although for others, such as Attorney General for Northern Ireland (2010-20) John Larkin, claims that the bill creates impunity for soldiers are overblown and that the avenue for prosecution will still substantively exist in the UK.
The UK’s international reputation
The proposed law could be counter-productive to the stated aim of the UK Government to promote human rights around the world.
The UN Special Rapporteur on Torture, Professor Nils Melzer, has spoken out against the Overseas Operations Bill specifically.
He said: “The adoption of the envisaged Overseas Operations Bill would consolidate the impression of a deliberate policy of impunity for the involvement of British officials in torture and ill-treatment, thus further eroding the credibility of the UK’s traditional commitment to fundamental norms of international humanitarian law and human rights law.”
As well as the UN, the passing of the law could trigger a formal investigation into the UK from the ICC. In 2019, the Court stated there was a “reasonable basis to believe” that UK soldiers “who had been deployed in Iraq had committed war crimes within the Court’s jurisdiction against persons in their custody”.
The court only steps in if national authorities are unable or unwilling to conduct a genuine investigation: the Office of the Prosecutor may interpret this bill as just this, triggering an investigation of historic crimes.
Finally, there are fears that if the UK pursues such a law it will undermine the UK’s advocacy for humanitarian law around the world. As the APPG parliamentary briefing argues: “The bill sets a dangerous precedent and will likely encourage copycat behaviour by other States and make it harder to prosecute war criminals.
“If States follow in the UK’s footsteps and introduce similar legislation, the UK would render itself unable to condemn such legislation or unwillingness to investigate crimes.”
It is well observed that the road to hell is paved with good intentions.
This bill might be a case in point. As Iain Overton, AOAV’s Executive Director states, “thousands of British forces – serving and retired – believe that the British Military should be held to the highest standards. This means that they should be liable to be held to account for such standards, both at the time and in the future.
“This bill is, in the end, the beginning of an erosion of human rights – for victims, for soldiers, for Britain. In this way it is not, sadly, a heroic bill, however much it is promoted as such.”
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