By guest contributor, Indrasish Majumder*
In 2019, the British government attempted to pass a bill that would prevent British soldiers from being prosecuted for crimes committed while serving abroad. The Overseas Operations (Service Personnel and Veterans) Bill (“Operations Bill”) was introduced in light of some UK operations in Iraq and Afghanistan which prompted an unprecedented number of criminal cases against British soldiers years after these operations. The UK government argued that the allegations raised were baseless and that it had proposed the Bill to shield its troops from false accusations. The Operations Bill seeks to safeguard British personnel by establishing a five-year statute of limitations on prosecution of suspected crimes committed by British troops while stationed outside British territory. It also sets time restrictions for such cases as well as claims brought under the Human Rights Act of 1998.
The Operations Bill has been criticised for being unconstitutional and misleading, and it has been claimed that it breaches obligations of the UK government under international human rights, humanitarian, and criminal law. Although it excludes offences involving sexual assault, it does provide immunity from some serious crimes expressly prohibited under the Geneva Conventions, such as torture and other crimes of war. The issue addressed in this article is whether the state’s argument of wanting to defend its troops from false accusations and debilitate the physiological trauma of war via this statute is sufficient justification for the enactment of such legislation. While the Operations Bill has been put on hold and is not yet law, it is critical to consider both the consequences of its implementation and the international legal commitments of the UK it would breach in the process.
OBLIGATIONS UNDER INTERNATIONAL HUMANITARIAN LAW AND A “GROSS INJUSTICE” TO THE VICTIMS OF WAR
A request for evidence on the Bill was issued by The Joint Committee on Human Rights on July 27th, citing alleged international law violations. The committee opined the proposed legislative bill “blatantly violates the principle of equal application of the law” by affording the military personnel with extra safeguards, as was also noted in 2019 at the consultation stage. The presumption of the bill against indictment has sparked a debate in the House of Commons as acts of sexual violence are the only “excluded offences” to which the bill is inapplicable while extending to explicit acts of genocide mentioned and criminalised under “Article 7(1)(g) of the Rome Statute” (namely, “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or any other form of sexual violence of comparable gravity”). The Bill would cover all non-sexual crimes against humanity conducted overseas in the course of a war. This means even though the UK is legally bound to carry out proper investigations and prosecute such crimes under their criminal code, the overseas military will be immune from prosecution and penalisation. Even for the most serious of crimes and human rights violations including wanton killing and physical torture “Article 8(2)(a) of the Rome Statute”. In addition to violating “Article 29 of the Rome Constitution”, which enumerates that “crimes within the jurisdiction of the International Criminal Court shall not be subject to any statute of limitations”, the bill also infringes “Articles 2 and 3” of the European Convention on Human Rights (ECHR) which safeguards “the right to life” and “freedom from torture”, respectively. Crucially, “the European Court of Human Rights” has placed a constructive obligation on the Member States to enforce “strong criminal-law regulations to prevent the commission of offences” that violate the ECHR’s Articles 2 and 3.
The prohibition of torture and other CIDTP, following the implementation of UN CAT (“United Nations Convention Against Torture” 1987) has been accepted as a jus cogens practise, as held by the Trial Chamber in Prosecutor v. Furundlija. It cannot be waived under any circumstance, nor can it be protected by a statute of limitations. Apart from the norm’s potential application as jus cogens, the United Kingdom is also one of the countries that have adopted the UNCAT, ICCPR, and ECHR. Notwithstanding this, the UK hopes to shield its soldiers from torture by establishing a statute of limitations on suing them under the Operations Bill. The duty of the government of the UK to investigate and prosecute allegations of torture, which closely aligns with the duty of the international tribunals to prosecute such crimes, becomes relevant here.
Furthermore, the obligation to investigate is drawn from a variety of foreign legislations and arises as soon as the States learn of allegations or have reason to suspect that war crimes have been committed. Regardless of how much time has passed, the duty to launch an investigation into the crimes committed persists. Indeed, the “European Court of Human Rights” has “firmly recognised” and prioritised the interests and welfare of the public in such a prosecution Brecknell v. The United Kingdom. Similarly, in the case of Husayn (Abu Zubaydah) v. Poland, wherein the claimant was kidnapped from his home in March 2003 the investigations started in 2008, and the report was not placed before the ECtHR until 2013, the passing of time, was not a bone of contention before the court. This is only one of the instances in which international courts have ignored the passing of time when investigating crimes against humanity, torture, and other heinous crimes of war.
INVESTIGATIVE SHORTCOMINGS IN UK: A TALE OF DEFICIENCIES AND NEGLECTFULNESS
The Operations Bill is incapable of accounting for the United Kingdom’s general investigative shortcomings in prosecuting war crimes, committed by its military personnel. The inquiries carried out by the government of the UK are “inadequate, insufficiently resourced, insufficiently impartial, and not conducted promptly to collect appropriate evidence,” according to the Joint Committee on Human Rights (“JCHR”). This observation was made in light of the Ministry of Defense’s sluggish response and failure to conduct a thorough investigation into the allegations of torture (some dating back to 2010) levelled against UK soldiers currently stationed in Iraq and Afghanistan. The allegations have been the subject of investigation since.
The Operations Bill makes the mistake of attempting to solve the issue of repeated inquiries by enabling the government to jeopardize its responsibility to conduct an unbiased and timely investigation. Furthermore, it uses mental wellbeing and the horrors of war as a garb to justify acts of heinous brutality rather than devising mechanisms to systematically track their soldiers’ mental health and enact measures to guarantee that they receive the assistance they need to come to terms with the physiological trauma of war. Mental well-being cannot be used as justification by the government to ignore its international obligations to deter, investigate, and prosecute and punish cases of torture and crimes against humanity and the Operations Bill is in breach of international law on both of these grounds.
CONCLUSION AND THE SUGGESTIONS
Rev. Nicholas Mercer, chief legal officer of the British Army during the Iraq War in 2003 claims that the Overseas Operations Bill does nothing to protect soldiers and is in reality detrimental to human rights, victims and the very soldiers its aims to protect, in addition to violating International law. The soldiers will face charges, irrespective of whether the bill approbates them with protection; the only distinction is that if the UK courts refused to prosecute them, the International Criminal Court (“ICC”) will step in. “A State cannot bring into oblivion and forgetfulness a crime, which other States are entitled to keep alive and remember,” the “African Commission on Human and Peoples’ Rights” conferred in Prosecutor v. Kallon Kamara. Under international law, war crimes and human rights violations, such as torture, are offences over which all states have common jurisdiction. As a result, if the UK was unwilling or unable to prosecute its accused employees, other states will still have jurisdiction over the case, and the ICC’s Prosecutor could launch an investigation into the allegations. It is also unfortunate that the UK has considered this safeguard against prosecution as part of the Operations Bill, despite being a signatory to the Rome Statute, which seeks to guarantee that serious offences are not left unpunished.
Impeding the prosecution of soldiers does not seem to be the best way for the UK government to defend its troops from frivolous allegations. This is a huge injustice to the victims and a licence to the soldiers stationed in foreign countries, where they will be protected no matter how vile or premeditated their atrocities are. Instead of attempting to address the issues at hand, the Operations Bill advocates an ineffective and unfair solution. The United Kingdom does have procedures in place to strike out and discourage trials based on frivolous complaints, already. As JCHR (“Joint Committee of Human rights”) points out, there is no evidence that these mechanisms have been completely ineffective in allowing prosecutions based on non-meritorious claims. Therefore, a more prudent way for the Operations Bill to fix this issue would be by incorporating provisions that improve investigation procedures, allowing it to become more timely and effective. Rather than refusing justice outright under the guise of defence and using psychiatric problems as an excuse to defend serious human rights abuses, the UK’s criminal justice system needs to be streamlined and the legal flaws addressed.
The Bill on Overseas Operations has caused heated debate in Parliament and elsewhere. Representing the seriousness of the issues at hand: fairness to those charged with defending the realm, accountability for wrongdoing victims, and preserving the rule of law. Unfortunately, but unsurprisingly, there has been a reasonable amount of vilification and populism throughout this discussion. Many of those who raise critical objections to the bill recognise the issue the government is attempting to solve, but criticise it for going about it in the wrong direction. The government and its ministers will do well to pay more attention to these perspectives before ratifying the bill.
*Majumder a third-year student pursuing B.A L.L. B (Hons) from National Law University Odisha, with a special interest in International law and Human Rights.
Photos:
“Wanted” by Taymaz Valley is licensed under CC BY 2.0
“British Army Soldier in Afghanistan Engaging the Enemy” by Defence Images is licensed under CC BY-NC 2.0.
“IRAQ AND AFGHANISTAN MEMORIAL UNVEILED IN LONDON” by Defence Images is licensed under CC BY-NC-ND 2.0