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Similarities between UK government’s attacks on ‘lawfare’ and the Colombian experience examined

The Overseas Operations Bill, currently at committee stage in the House of Lords, will effectively introduce a six-year statute of limitations on prosecutions relating to military activity overseas. If successful, it will also implement a duty to consider to derogation from the European Convention on Human Rights during “significant” operations outside the British Isles.

Dangerously, this could effectively mean that war crimes like torture by the British armed forces go unpunished. What is particularly telling that the bill’s origin can be traced back to the UK government’s response to allegations of extrajudicial killings and human rights abuses in Iraq and Afghanistan.

By 2016, the Iraq Historic Allegations Team (IHAT) was investigating almost 300 British personnel and the cases of more than 1,500 victims. Johnny Mercer, Minister for Defence People and Veterans, branded the lawsuits a “national disgrace” at the time, and Theresa May, in her speech at the 2016 Tory Party Conference, said: “We will never again in any future conflict let those activist left-wing human rights lawyers harangue and harass the bravest of the brave: the men and women of our armed forces.”

May had already announced plans to opt the military out of parts of the European Convention of Human Rights to protect the armed forces from such “vexatious” claims, and the closure of IHAT was confirmed less than five months later.

Politicians have consistently maintained that the country’s armed forces have been subjected to “lawfare” and “industrial-scale filing of spurious allegations” by “ambulance-chasing” lawyers. They cite the repeated and protracted nature of military investigations, but the traumatic nature of poorly conducted inquiries is not being addressed by this bill. Rather, it is likely to prevent the British armed forces from being fully held to account for past and future war crimes.

The Joint Committee on Human Rights reviewed the legislation in October 2020 and concluded that it risks breaching the UK’s human rights obligations. It has also created a special category of defendant in domestic law – members of the armed forces – who are granted greater impunity for their crimes and whose victims seem to be considered, by extension, less deserving of justice.

The committee said that had the bill existed in the past, it would have prevented serious human rights violations by UK armed forces from being uncovered. It would have blocked justice for victims of crimes like rendition and torture and allowed the practices to continued unchecked.

Parallels with Colombia’s false positives

The bill becomes more worrying still when viewed through the lens of another country that has wielded the accusation of ‘lawfare’ against lawyers defending human rights.  Examining  Colombia’s “false positives scandal”, for instance, we find the self-same rhetoric as used by May and Mercer has also been employed in the recent past by Colombian politicians who have sought to deny systematic extrajudicial executions by their country’s armed forces.

In a speech in 2003, for instance, President Álvaro Uribe denied the allegations that his nation’s troops had killed without prejudice, dismissing them as arbitrary claims by human rights traffickers. Every time a security policy appears in Colombia to defeat terrorism, when the terrorists begin to feel weak, they immediately send their spokespersons to speak about human rights,” he said. “[They] taint the honour of our generals and Colombians who battle against terrorism.”

Despite such political denials, since then numerous members of Colombia’s national army have come forward and confessed: soldiers were ordered to find victims, place weapons at the scene to make them appear as guerillas killed in combat and falsify official reports. In exchange, they were rewarded with incentives such as cash and holidays.

Eyewitness accounts have been key in proving the veracity of the allegations. For example, one Lieutenant was successfully convicted in 2012 for orchestrating the killing of a man named José Rabelo who was stopped, accused of being a guerilla and forced to change into a uniform. Another soldier was ordered to throw himself on the ground and cover himself in sand as if he had been attacked, and witnesses described how Lieutenant Cespedes gave the order to shoot Rabelo, and then told a radio operator that they had entered combat.

Similar patterns emerged across dozens of other cases tried in Colombia’s national courts: details in official army reports that don’t add up; victims found wearing boots too big for them; alleged guerrillas found holding rusty or unusable handguns unlikely to have been used in confrontation with the army. In some cases, the army reported using excessive force, such as 16 grenades and 200 cartridges of ammunition deployed against a combatant alleged to have attacked with only a handgun.

There are other court files detailing cases such as José Lorenzo Taborda’s, in which a gun was recovered from Taborda’s hands, but there was no physical evidence – such as gunpowder residue – to prove the gun had been fired at all. There was also testimony from Taborda’s doctor, Dr Carlos Alfonso Tellez, who said that Taborda had a severe intellectual disability and impaired motor skills which meant “he was not able to hold a firearm, much less shoot it”.

Justice denied
Politicians in Colombia have repeatedly attacked human rights lawyers for attempting to gain justice for these crimes. “The government… has to be careful not to fail the solidarity that is owed to the soldiers and policemen of Colombia,” said Uribe in 2009. “The hiring of any lawyers for any defence constitutes a tragedy.”

He went on to say that the government had an obligation to prevent the false reports of extrajudicial killings from “unscrupulous people whose desire is to discredit the Democratic Security policy.”

It took years for Colombia’s government to acknowledge the scandal, but the 2016 peace deal included provision for the creation of the Special Jurisdiction of Peace (JEP) and a war crimes tribunal to investigate false positive cases. In 2018, the Prosecutor General’s Office reported that it had identified a total of 2,248 victims of extrajudicial executions between 1988 and 2014, and that 5,626 officials were implicated.

But new statistics (dismissed as by Uribe as biased evidence designed to discredit his government) from the JEP puts the number of victims at roughly triple that amount; their investigations have uncovered 6,402 victims of false positives between 2002 and 2008.

Less comprehensive data exists convictions for the crimes. Trials have been spread through the country’s criminal courts and the JEP’s war crimes tribunal wasn’t officially approved in the Senate until 2017. This has led to a confusing process of transitional justice that has drawn out and delayed investigations.

“The army officials in charge at the time of the killings have escaped justice,” said José Miguel Vivanco, Americas director at Human Rights Watch, in 2015. “[They have] even ascended to the top of the military command, including the current heads of the army and armed forces.”

Justice still has not been done in Colombia and families are still waiting for high-ranking officials to be held to account. To date, no generals have been convicted of extrajudicial executions more than a decade after their alleged crimes. To do so was viewed cynically as “human rights trafficking” and contrary to “honour” of the armed forces.

Such denialism should raise red flags here in the UK.

In Britain, Tory leaders continue to insist that derogation from the European Convention on Human Rights is necessary to protect the armed forces from “the vicious cycle of claims and repeated investigations driven by pernicious practitioners” and for the “fightback against lawfare”. But pushing through the Overseas Operations Bill puts the country at risk of going down the same path as Colombia, leaving victims of war crimes without justice, and the perpetrators to continue with impunity.