Main Image Credit British soldiers. Courtesy of PA.
The UK government’s attempt to shield its troops from vexatious litigation is laudable. The methods proposed are less so.
The government’s Integrated Review is currently slated for publication in mid-November. It is expected to lay particular stress on the essential values behind the UK’s foreign policy, including its commitment to open societies and its respect for a ‘rules-based international order’.
Strange, then, that at about the same time the Overseas Operations (Service Personnel and Veterans) Bill may be on its way to receive Royal Assent. If it becomes law, it will cast a long shadow over any lofty statements being made around that time concerning the UK’s international values. For the Overseas Operations Bill, with the best of intentions, nevertheless looks as if it means to put the UK at odds with the Geneva Conventions and the International Criminal Court (ICC), and to open a significant loophole in customary international law which can be exploited by authoritarian states.
The intentions of the Bill are very clear and entirely laudable: to give troops serving overseas some much-needed extra protection against fraudulent or frivolous claims against them of criminal behaviour. It was a Conservative manifesto commitment to give troops more legal protection and Defence Minister Johnny Mercer has pursued it on behalf of military personnel, far too many of whom were subjected to endless post-Iraq and post-Afghanistan investigations on the basis of fraudulent or trivial claims.
The Bill is effectively in two parts, both of which stand to affect the UK’s international reputation. The first part offers military personnel serving overseas protection against fraudulent accusations of criminality through a ‘triple lock’ that there would be an explicit ‘presumption against prosecution’ after five years, even in the event of new evidence emerging; ‘a requirement for prosecutors to give weight’ to the battlefield or operational conditions at the time; and the need for the Attorney General, or the Advocate General in Northern Ireland, to approve any prosecution after five years.
Apart from writing legislation in the field of criminality that makes any ‘presumption’ about prosecution, it is the little phrase ‘five years’ which contains the political time bomb. The Bill covers the possibility not only that military personnel might be accused of breaking domestic British law while serving overseas, but also some of the most serious crimes in international law including war crimes, crimes against humanity and even genocide. To put this sort of ‘triple lock’ on any allegations more than five years old is, in effect, a statute of limitations. As the Law Society put it:
We believe the proposal to introduce a presumption against prosecution amounts to a quasi-statute of limitations. Introducing a time limit risks creating impunity for serious crimes and the proposal would be an exception to the normal law for a category of criminal matters that does not exist anywhere else.
Five years might sound like a considerable time, but the record of conflict and military operations in all parts of the world suggests that many complaints and allegations can take considerably longer to come to light, given the dire circumstances in which many victims find themselves, or the reticence many feel in bringing allegations forward. Though, of course, claims made some years after an alleged incident will be all the harder for an individual to substantiate.
Notwithstanding a five-year window for allegations to be lodged, if the Bill becomes law it would still put the UK at odds with the Geneva Conventions, particularly Additional Protocol 1 of 1977, as well as the Convention Against Torture and many tenets of customary international law. The International Committee of the Red Cross in its study on customary international humanitarian law stated very clearly that ‘statutes of limitations may not apply to war crimes’. The Committee Against Torture also took the view that states must not enact ‘legislation that would grant amnesty or pardon where torture is concerned’. War crimes and crimes against humanity cannot have statutes of limitation attached to them – this is an essential feature of the rules-based international order, for both practical and ethical reasons.
The government would doubtless argue that the triple lock did not amount to a ‘quasi-statute of limitations’, but a number of UK and foreign legal experts already beg to differ. There will be at least a very plausible case that an Overseas Operations Act, conceived in these terms, would constitute such a statute and fly in the face of international legal norms.
Furthermore, in a quite bizarre twist that could make the lives of some military personnel much worse, there is the inconvenient fact that the ICC can only claim jurisdiction over individuals whose own government is deemed ‘unable or unwilling’ to prosecute against serious allegations of war crimes. If the idea gains any international traction that the UK operates a ‘quasi-statute of limitations’ for some of these serious crimes then there is the prospect that individual British military personnel, covered in the UK by the blanket of an Overseas Operations Act, might be indicted by the ICC on war crimes charges and even face an arrest warrant outside the UK. It is hard to imagine that any of the chiefs would be comfortable with this prospect, even if ministers consider it too much of a stretch. The Bill does not apply to Northern Ireland, since operations in the Province cannot be regarded as ‘overseas’ in any legal sense; a source, nevertheless, of some disagreement between the MoD and the Northern Ireland Office, which insisted that it would be damaging to the peace process if provisions of the Bill were extended to the Province. So, outstanding claims against troops serving in Northern Ireland must, in any case, await a different legal framework.
Then there is the second element of the Bill, which introduces a six-year time limit on military personnel bringing civil claims against the government or the MoD in connection with their service on overseas operations – a statute of limitations in the other direction that would protect the government from any of its own troops’ claims after a six-year period. In doing this, the Bill would place on the government a ‘duty to consider derogating from the European Convention on Human Rights in relation to certain overseas military operations’. Though the European Court of Human Rights (ECHR) has nothing to do with the EU, it suffered in the general anti-European backlash that led to the Brexit vote. In 2016, the Conservative government committed itself, at its annual party conference, to the principle of an ECHR derogation, because it had become exasperated at how many British troops (or more specifically, their lawyers) were claiming violations of their individual human rights because of lack of adequate training, protection or equipment, and so on.
The best legal opinions outside government point to severe trade-offs in making any derogation from the ECHR on such grounds really stick. Potential derogation is already built into the ECHR in times of conflict, and those areas most relevant to previous governments’ concerns, mainly under Article 3 (which includes ‘inhuman or degrading treatment’), are specifically non-derogable. In truth, the government seems to want to grandstand on ECHR issues, but in relation to overseas military operations it will bear the reputational costs of introducing legislation containing a specific presumption to derogate from an important element in international law, for little real gain in dealing with the particular cases that might arise.
The problem the government is trying to address in the Overseas Operations Bill is genuine and has undoubtedly affected morale in the armed forces as some individuals have had their lives turned upside down by open-ended investigations that dogged them, even years after their service. But many critics have pointed out that the balance of both parts of the Bill may well leave the individual service personnel in a worse situation. The problems need to be addressed from the other end of the process – on the battlefield rather than in the courts. The Bill distracts attention from the reality that the military got itself into so many legal scrapes in Iraq and Afghanistan because its own battlefield investigation procedures were sub-standard. This author is well aware of personal testimony from some of those responsible for investigating cases regarding the systemic obstruction they habitually encountered. A number of senior retired military chiefs, legal officials and ex-ministers have expressed deep disquiet at all the unintended consequences this Bill might have if it becomes law. Operating the established processes better should be a higher priority than changing the law, particularly one with so many international implications.
As for ‘Global Britain’, the Bill sends some very disturbing messages to allies who are as concerned as us about the health of the rules-based international order, and opens up some intriguing possibilities for our adversaries, who love to claim international legitimacy for their blatantly illegal behaviour. A lightly edited copy of this Bill (why not tweak ‘five years’ down to a more manageable three, or even two?) might sit very well with legislatures in Russia, Central Asia and Africa, and they could always hold up the UK’s Overseas Operations Bill as a template for what they aim to achieve. This is probably not the sort of example the authors of the Integrated Review will have in mind when they unveil their renewed commitment to the projection of British values in the world.
Professor Michael Clarke is the former Director General of RUSI and now serves as one of its Distinguished Fellows. He is also Visiting Professor in the Department of War Studies at King’s College London.
The views expressed in this Commentary are the author's, and do not represent those of RUSI or any other institution.
Professor Michael Clarke