The Overseas Operations Bill: Counter Lawfare or Lawfare
The goal of “the Overseas Operations (Service Personnel and Veterans) Bill”, the second reading of which took place in the House of Lords in January 2021, is to “establish the supremacy of the law of armed conflict,” according to ministers of the UK parliament. The bill, according to the government, will put an end to the seemingly endless acts of “lawfare” against British personnel. Whereas, the proposed legislation, according to critics, will jeopardise the United Kingdom’s commitment to the rule of law.
The Overseas Operations Bill is part of the British government’s response to what it calls the “judicialization of war,” or the application of human rights norms to overseas combat operations and the emergence of a litigation industry that has resulted in a flood of “vexatious claims” against British forces. The bill is structured in three parts to solving the issue. For starters, it establishes a statutory presumption against prosecuting members of the British armed forces who were deployed on missions outside of the British Islands more than five years ago. Criminal proceedings connected to such situations are only permitted in “extraordinary” situations and necessitate the attorney general’s approval before commencing an investigation. Second, it limits the authority of courts to extend the time limits for initiating claims on personal injuries or deaths experienced while serving in the military. Finally, the secretary of state is required to review derogating from “the European Convention on Human Rights (ECHR)” in the case of “major” foreign deployments. 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 the British Islands. It also sets time restrictions for such cases as well as claims brought under the Human Rights Act of 1998.
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. Additionally, the conflicting viewpoints concerning the bill are examined in this article before moving on to the bill’s suggestion that the secretary of state is allowed to derogate from the United Kingdom’s human rights duties during specific overseas deployments. The article reflects the prevalent viewpoint in the UK Parliament, which perceives this dubious bill, as a trivial issue of modest importance, ignores both its legal bearing and the extent to which the bill’s drafters scored their own goal. 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.
Violation of UK’s obligations under International Humanitarian Law
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 Convention, such as torture and other crimes of war.
A request for evidence on the Bill was made by The Joint Committee on Human Rights on July 27th, citing the bill violates UK’s obligations under international law. 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 argued in 2019 at the consultation stage. The presumption of the bill against investigation and prosecution has sparked a debate in the house of commons. 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 and International Conventions to which it is a signatory, the overseas military will be immune from prosecution and penalisation even for the most serious of crimes and human rights violations including murder 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 “the 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” (“The use of torture or other cruel, inhuman or degrading treatment or punishment”), following the implementation of UNCAT(“United Nations Convention Against Torture” 1987) under Article 2 and Article 16, 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 the UK
The Operations Bill is essentially 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 punish, investigate, deter, and prosecute cases of torture and crimes against humanity and the Operations Bill is in breach of international law on both of these grounds.
The Overseas Bill: Safeguarding Veterans or Safeguarding the Ministry of Defence
While the Operations Bill can restrict only prosecutions, such restrictions, in addition to the components of discretionary prosecution, will undoubtedly create investigative challenges. A prosecutor can only proceed with a case for which the five-year limitation has expired if the circumstances are exceptional which, the prosecutor will determine after considering certain factors, following which legal procedures maybe be undertaken with the Attorney General’s approval.
The criteria are: first, the detrimental effect of the circumstances surrounding the personnel at the time of the alleged crime, and the potential effect of such circumstances on their mental wellbeing, which may have harmed their capacity to make informed decisions; and second, whether there is “compelling new evidence” in case scenarios where prior investigation has been conducted. The prosecution is responsible for determining the magnitude of the effect of the surroundings on cognitive abilities as well as the threshold for additional evidence that can be considered compelling. The discretion of the prosecution as mentioned above coupled with the lack of checks and balances in place will only make it more difficult for prosecutions to take place. The possibility of investigations being needlessly prolonged to extend them beyond the five-year timeframe arises dramatically in this scenario. In its commentary on Grave Breaches of International Humanitarian Law, the International Committee of Red Cross states that if there appears to be adequate evidence to pursue legal action, national standards of prosecutorial discretion cannot be relied on to prevent it from being pursued. The Operations Bill, on the other hand, would accomplish exactly that. Furthermore, the Inter-American Court of Human Rights ruled in Barrios Altos v. Peru that laws and government measures aimed at eradicating accountability by impeding inquiry and prosecution of individuals responsible for significant human rights crimes are unconstitutional. The five-year deadline partially absolves people accused of wrongdoing, resulting in a de facto amnesty in the process, which is also in violation of generally accepted international law as deliberated on above.
A piece of Legislation must be easily understandable for the parliamentarians such that they know what they are voting for. The necessity for transparency in legislation is stated as the first premise in Bingham’s definition of the Rule of Law, and the Venice Commission Checklist on the Rule of Law requires intelligibility in law. One of the justifications for parliamentary democracy is this. However, questions regarding the constitutionality of the Operations bill has been raised from the very section of people it claims to protect. 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 universal jurisdiction. As a result, if the UK was￼ unwilling or unable to prosecute its accused employees, other states will still have universal jurisdiction over the case, and the ICC’s Prosecutor could launch an investigation into the allegations if it satisfies the criteria enumerated under Article 5 of the ICC Statute. 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.
The Bill on Overseas Operations has stirred 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. 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.
About the author
Indrasish Majumder is a third law year student pursuing B.A L.L. B (Hons.) from National Law University Odisha, Cuttack with a special interest in International law, International Human Rights Law, Women and the Law. Outside of law, in his free time, Indrasish is a hodophile and bibliophile, through and through. [/learn_more]