What just happened?
The Overseas Operations (Service Personnel and Veterans) Bill if introduced will restrict the ability to prosecute British soldiers serving abroad for war crimes.[1]
What does this mean?
The Overseas Operations Bill[2] will introduce:
A presumption against prosecution in respect of alleged offences committed on overseas military operations more than five years ago.
A requirement to obtain the consent of the Attorney General before a prosecution can proceed.
A maximum of six years' time limit for bringing civil claims for personal injury or death and for bringing HRA claims in connection with the overseas operations.
This bill has been championed by every Conservative prime minister since 2010.[3] The Conservative government claims that greater protection is needed for armed forces personal against “vexatious legal claims” that the party argues, “have recently undermined our armed forces”.[4] A ‘vexatious’ claim at law is one which is frivolous or made in bad faith without legal basis.[5] To date British soldiers have not faced such claims. There have been approximately 1,400 judicial review claims against the Ministry of Defence (MOD) seeking investigations and compensation for a variety of alleged human rights violations.[6] A number of these claims have been proven to be valid, with the UK’s MOD approval of £20 million to settle 331 cases of violations committed by UK service personnel against Iraqi nationals in Iraq.[7]
If this bill becomes law it will not benefit soldiers as it blocks civil claims against the MOD for abuses that happen on its watch .[8] This would protect ministers and officials, not soldiers.[9] British soldiers already have protections in the law against ‘vexatious legal claims’ [GU2] to ensure that prosecutions are only brought in the right circumstances.[10] This is highlighted by the fact that only one British soldier has served time for war crimes and his sentence was merely a year.[11]
This legislation would violate Article 3 of the Humans Rights Act (HRA) 1998 which states that no one shall be subjected to torture, inhuman or degrading treatment or punishment,[12] and the Geneva Convention covering humane behaviour in war.[13] Law society argued that this law would reducing murder to manslaughter as the legislation statesArmed Forces personnel has applied “more force than strictly necessary for the purposes of self-defence”.[14] To provide such a defence for murder violates the HRA, Geneva Convention and the MOD’s own doctrine on detainees, which recognises that there are “no circumstances in which torture, cruel, inhuman or degrading treatment can ever be justified”.[15]
The UK has a duty under domestic and international law to prevent, investigate and punish human rights violations and allow victims to redress for the harm suffered.[16] Clare Collier, Advocacy Director at Liberty stated, “a war crime does not stop being a war crime after five years.[17] British soldiers were in Afghanistan for 13 years [18] Therefore, at LawMiracle, we believe that 5 years is not enough time for victims to come forward. As recognised by The UNCAT – a treaty ratified by the UK – provides an obligation on the UK not to apply statutes of limitation to [19] This bill would clearly violate that.
At LawMiracle we believe, the actions of the Conservative government are truly dangerous[GU6] . Defence Secretary Ben Wallace condoned the use of “mock executions” to interrogate prisoners – an act absolutely prohibited by UK army doctrine and international law.[GU7] [20] In 2017 the then-Defence Secretary, Michael Fallon, shut down the unit investigating alleged UK army abuses in Iraq before it had completed its work.[21] This Bill is another example of the Conservative government justifying, avoiding and covering up crimes committed against and by British army personnel abroad and could[GU8] set a dangerous precedent other countries may follow.[22]
Written by Venus Amon
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References:
[1] Dan Sabbagh, ‘Labour calls for halt to bill shielding UK soldiers from prosecution’, (Guardian, 25th August 2020)
[2] Gov.uk, ‘Overseas Operations (service personal and Veterans) Bill’, (Gov.uk, 6th May,2020).
[3] ForcesWatch, ‘The Overseas Operation Bill: A Tale of Two Militarisms?’, (ForcesWatch, 28th August 2020)
[4] Dan Sabbagh, ‘Labour calls for halt to bill shielding UK soldiers from prosecution’, (Guardian, 25th August 2020)
[5] Ceasefire, ‘Seven myths about UK military abuses against civilians in Iraq’, (Ceasefire Centre for civilian rights, 2019)
[6] Pathfinder, ‘Armed Forces Protected From ‘Vexatious Claims’ ‘, (Pathfinder International, March 18th 2020)
[7] Ceasefire, ‘Seven myths about UK military abuses against civilians in Iraq’, (Ceasefire Centre for civilian rights, 2019
[8] Alistair Carmichael, ‘A new bill will decriminalise torture rather than protect our soldiers. We can’t let it pass’,(Independent, 18th June 2020)
[9] Ibid
[10] Free From Torture, ‘Why torture survivors fear new government law’, (Free From Torture, 2020)
[11] Madaline Dunn, ‘New Overseas Operation Bill places the military above the law’, (The Legal Journal, 4th June 2020)
[12] ’Human Rights Act 1998’, (legislation.gov, 1998)
[13] Dan Sabbagh, ‘Labour calls for halt to bill shielding UK soldiers from prosecution’, (Guardian, 25th August 2020)
[14] Madaline Dunn, ‘New Overseas Operation Bill places the military above the law’, (The Legal Journal, 4th June 2020)
[15] Alistair Carmichael, ‘A new bill will decriminalise torture rather than protect our soldiers. We can’t let it pass’,(Independent, 18th June 2020)
[16] Chris Esdaile, ‘Overseas Operation Bill: True Freedom require the Rule of Law and Justice’, (Redress, 17th June 2020)
[17] Madaline Dunn, ‘New Overseas Operation Bill places the military above the law’, (The Legal Journal, 4th June 2020)
[18] James Knuckey, ‘Five Years On: What Are British Troops Doing in Afghanistan?’, (Forces Net, 27th October 2014)
[19] Chris Esdaile, ‘Overseas Operation Bill: True Freedom require the Rule of Law and Justice’, (Redress, 17th June 2020)
[20] Clive Baldwin, ‘Don’t Shield Suspect UK War Criminals from Justice’, (Human Right Watch, 19th November 2019)
[21] Ibid
[22] Free From Torture, ‘Why torture survivors fear new government law’, (Free From Torture, 2020)
Disclaimer: This article (and any information accessed through links in this article) is provided for information purposes only and does not constitute legal advice.