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.