The Overseas Operation (Service Personnel and Veterans) Bill was introduced in the House of Commons in March 2020 and is due its second reading on 23 September 2020. In short, the Bill aims to limit prosecution and civil proceedings against military personnel, as well as to enable the UK government to derogate from the European Convention on Human Rights (ECHR) during combat operations. The Bill emerges in response to what numerous Defence Secretaries have referred to as the ‘judicialisation of war’, a term which has been used to resist the application of the ECHR to overseas military combat operations. Despite the Bill being described as a way to protect soldiers from the ‘industry’ of “vexatious claims” and preserve the ability of combat forces to fight wars effectively, there is every suggestion that this is really about precluding, or at least severely limiting, the accountability of the British state in its overseas military deployments.
This post, which draws from a working paper by the authors and submissions to the Joint Committee on Human Rights, will start by outlining the elements of the Bill which seek to limit proceedings and prosecutions in relation to military conduct overseas. It will then argue that the Bill should be resisted on, at least, the following grounds. First, it is contrary to the UK’s human rights commitments and to its obligations under the Rome Statute. Second, it contains unnecessary provisions pertaining to limitations, as current law already provides robust limitations to bringing late claims or claims without merit. It concludes that the effect of the Bill will be to entrench near-impunity of both the MoD and military personnel.
The main provisions
The Bill introduces civil litigation and human rights “longstops” which effectively reduce judicial discretion for amending time limitations, meaning a civil or human rights claim cannot be brought after six years have lapsed (clauses 8 and 11). Further, in considering whether to allow cases prior to the six-year cut off point, the Bill introduces additional factors the court must have regard to which include “the likely impact of the operational context on the ability of members of Her Majesty’s forces to remember relevant events or actions fully or accurately” (Schedule 2, Part 1) and “the effect of the delay in bringing proceedings on the cogency of evidence adduced or likely to be adduced by the parties” and the mental health effects of recalling such events on witnesses who are military personnel (clause 11).
The Bill provides that once five years have elapsed since the incident giving rise to proceedings, then a series of three ‘conditions’ must be met for the prosecution, including a private prosecution, to proceed. These conditions are:
- Exceptionality: That it will be “exceptional” for a relevant prosecutor to decide that proceedings should be brought against a member of the British service personnel or a veteran or that the proceedings against the person for the offence should be continued (clause 2);
- Dilution of culpability: A requirement for a prosecutor to “give particular weight” to certain matters that can be understood as reducing “the person’s culpability or otherwise tend against prosecution” such as the adverse effects of the prevailing conditions at the time and the impact those conditions will have “on the ability of that service person or veteran to make sound judgements or exercise self-control or on their mental health.” Further, if there has been a previous investigation and no compelling new evidence has emerged, the public interest is for finality to be achieved (clause 3); and,
- Permission to prosecute: Notwithstanding these considerations, a prosecution can only proceed if the Attorney General gives consent to prosecute (clause 5).
In combination, these three clauses are “the new factors” which a prosecutor must consider.
Schedule 1 excludes from the presumption against prosecution a series of important offences including all sexual offences, genocide, crimes against humanity and war crimes and conduct ancillary to these crimes under the International Criminal Court Act 2001. However, critically, the Bill will apply to all other alleged crimes including murder, manslaughter, and torture.
Reasons to resist the Bill
Contrary to international law
Although a presumption against prosecution is different from a statute of limitations, it is only partially less strict because the combined effect of the “new factors” that a prosecutor must consider make it very difficult for a prosecution to proceed. As such, the presumption against prosecution could be contrary to Article 29 of the Rome Statute. The Rome Statute cannot be derogated from and such a Bill, which tries to prevent or limit the investigation and prosecution of any individual alleged to have committed a war crime or a crime against humanity, which includes torture, would be incompatible with the Rome Statute. The International Criminal Court have warned, in the context of its ongoing preliminary examination of allegations related to the conduct of British military personnel in Iraq, that if proposals for a presumption against prosecution were introduced, it “would need to consider its potential impact on the ability of the UK authorities to investigate and/or prosecute crimes allegedly committed by members of the British armed forces in Iraq, against the standards of inactivity and genuineness set out in article 17 of the Statute.”
Further, while torture has been illegal in the UK for over 300 years, the Bill ends such proscription and would decriminalise torture in some circumstances. Torture is a gross violation of International Human Rights Law, a serious violation of International Humanitarian Law and a crime. As such, attempts to time-bar victims of torture from bringing civil and human rights claims and placing temporal barriers to prosecuting perpetrators is not consistent with international law (here and here). Further, murder can, under no circumstances, escape the threat of prosecution. Indeed, there are already numerous ways in which killing someone in battle and during an occupation attracts no legal consequence.
The European Court of Human Rights confirms that there is a positive duty to have effective criminal law provisions to deter the commission of conduct or treatment which would be contrary to Articles 2 and 3 ECHR. If there are credible allegations then an investigation must be initiated reasonably promptly and be capable of identifying culpable individuals and securing accountability, including through the criminal justice process with criminal proceedings being a potential remedy. The State’s article 2 ECHR positive obligation also requires an “effective independent judicial system to be set up so as to secure legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress to the victim.”
Protections from bringing unmeritorious claims
Foreign victims of killings or abuse by state actors on the victims’ own territory are likely to be delayed in bringing their claims before the English courts. Members of the armed forces are often immune from the legal processes of foreign territories and victims often do not know that they can or how to bring such claims before the courts of the invading or occupying country. Indeed, it may be “practically impossible” to bring a claim against the Ministry of Defence in the English courts. Victims therefore face numerous and significant barriers to justice. As such, any limits to accountability in the context of military operations overseas is unreasonable and contrary to the interests of justice.
Additionally, if the claimant is the cause for delay without acceptable explanation then it is already settled that the court should refuse to extend the time for making a claim, in tort and human rights law. While the case law on limitations across tort and human rights proceedings is varied, it generally illustrates a common reticence toward litigation on distant events in the past. For example, the tort claim for personal injury arising from the killing, torture and ill-treatment of the Mau Mau in Kenya was dismissed due to the passage of time.
The discretion of the court to decide when it is equitable to allow a claim to proceed must not be removed for the purpose of protecting the government from public scrutiny and legal accountability. There are already numerous limits built into the ECHR, domestic jurisprudence as well as the Limitation Act 1980 and s7(5)(b) Human Rights Act 1998. Although, there are some time limits within criminal law, is it appropriate to introduce limitations for some of the most egregious crimes?
Conclusion: Entrenching military impunity?
Presumptions against prosecution are typically introduced into legislation to encourage victims to come forward about greater criminal activity which they have unwillingly participated in and thus not fear recrimination. For example, in instances where those who commit crimes are victims of trafficking, such a law will instruct a prosecutor not to prosecute. There is no comparable situation where military personnel are under such victimisation that a presumption would be needed to encourage them to come forward about the nature of said-victimisation.
Establishing a rigid time limit of six years, given the complexity of bringing claims, will have the likely effect of entrenching a level of impunity for the military, senior commanders, and ministers. Often accountability is only achieved through the courts and truth often only comes out through the process of disclosure in judicial review proceedings or civil claims.
It would be inconceivable to introduce a presumption against prosecution for serious domestically committed crimes like GBH, murder or torture; creating a different law for military personnel serving abroad would create a special category of persons immune from criminal prosecution.
Bethany Shiner, Lecturer in Law, Middlesex University and PhD candidate, University of Oxford and Dr Tanzil Chowdhury, Queen Mary, University of London.
(Suggested citation: B. Shiner and T. Chowdhury, ‘The Overseas Operation (Service Personnel and Veterans) Bill and Impunity of the British State’, U.K. Const. L. Blog (22nd Sept. 2020) (available at https://ukconstitutionallaw.org/))