The 'Overseas Operations (Service Personnel and Veterans) Bill' aims to provide greater legal protection for British troops and veterans serving overseas, in response to what the government argues are "vexatious claims" against the forces. However, many argue that it provides soldiers with de-facto immunity against prosecution for war crimes including torture. According to an article by Human Rights Watch (HRW): "with this bill the government shows contempt for the rule of law, violates the UK’s international commitments to prosecute the worst crimes, and risks creating impunity for grave abuse."
Various other rights groups and opponents to the bill have also echoed sentiments along these lines, including some members of the government's own Conservative Party. The same HRW article adds: “Britain has a long and shameful history of failing to prosecute its nationals responsible for major crimes overseas – such as Reginald Dyer, the general who ordered the Amritsar massacre that killed hundreds of Indians."
The bill passed the second reading in the House of Commons, being voted on by a majority of mostly Conservative MPs on the 23rd of September 2020.
KEY FEATURES OF THE OVERSEAS OPERATIONS BILL
Some key provisions of the Overseas Operations Bill are outlined below.
1. The bill proposes the creation of a "triple lock" to give "greater certainty" to armed forces and veterans that the pressures put on them during overseas operations will be taken into account during prosecutorial decisions. This lock includes:
i. A "presumption against prosecution."
The bill sets a presumption that once five years have passed since the occurrence of an incident involving human rights abuse overseas, only in "exceptional" circumstances will a British service person or veteran be prosecuted. Rape and sexual violence are excluded from this time limitation.
ii. A requirement that prosecutors give "particular weight to certain matters" when arriving at a decision in such cases.
iii. A requirement for consent to be obtained from the Attorney General (in the case of England and Wales) or Advocate General (in the case of Northern Ireland).
2. The bill introduces time limits for bringing civil claims that occur in relation to overseas military operations. Civil claims by British personnel and army veterans themselves must be brought within six years, beginning from the date when the condition was first known.
3. The bill also includes the imposition of a duty on the government to consider derogating from the European Convention on Human Rights (ECHR) regarding overseas operations.
ARGUMENTS AGAINST THE BILL
Labour MP Nadia Whittome described the bill as "anti-veteran and anti-human rights." She also said, "It strikes me that if a piece of legislation has had concerns raised by the Equality and Human Rights Commission, the British Legion, Amnesty International and other organisations on the front line of supporting veterans and defending human rights we need to stop and ask ourselves why." Opponents of the bill, including rights groups, have made numerous arguments against the bill.
THE FIVE-YEAR STATUTE OF LIMITATIONS
The proposal for a five-year statute of limitations has proven to be one controversial aspect of the bill. Kolbassia Haoussou - a torture survivor who works for 'Freedom from Torture', a campaign group says: “there is so much stigma and shame attached to torture that it can destroy your mental attitude and identity…Five years is absolutely nothing. It takes time for people even to understand what is going on in their mind." In an op-ed for The Guardian - a former Shadow Attorney General for England and Wales - Lady Shami Chakrabarti, referring to the limitation writes: "the counter-argument will be that those involved in overseas operations should not be left in limbo for years after controversial missions. I completely agree. The answer to that is surely more public transparency and political accountability for military intervention. It is also more resources for any criminal investigations – not political interference with possible prosecutions."
THE "TWO-TIER" JUSTICE SYSTEM
General Sir Nick Parker, a former British army officer who served as Commander of Land Forces, was concerned that this bill would create a "two-tier" justice system - placing troops on a different footing to civilians. He said: “We shouldn’t be treating our people as if they have special protection from prosecution.” Rights groups also raise similar concerns. Amnesty's UK Director, Kate Allen, in a press release raised the point that “placing soldiers above the law helps no one and will have a devastating impact on the reputation of the UK armed forces."
THE DECRIMINALISATION OF TORTURE
Opponents to the bill as well as several rights groups have argued that the bill would effectively decriminalise torture. Torture is prohibited under international law ankd enshrined by legal instruments the UK is a signatory to. Some of these include the United Nation's Convention Against Torture and the Geneva Conventions of 1949.
Nicholas Mercer, a former military legal adviser serving in the Iraq war of 2003, wrote in a different op-ed for The Guardian: "as we now know from various public inquiries, the British army used unlawful interrogation techniques in Iraq and Afghanistan, which breached the UN convention on torture. If this bill passes into law, the government will have effectively legislated to protect itself from those allegations."
CONCERNS RELATING TO THE SOLDIERS THEMSELVES
Despite the bill's purpose being to protect armed personnel, it also has the effect of potentially harming them. A House of Commons research briefing mentions how there have been concern that the six-year time limit for allowing personnel and veterans to bring claims "will breach the Armed Forces Covenant."
In a letter to the UK's defence secretary, Ben Wallace, Judge Jeffrey Blackett - Britain's most senior military judge - expressed concern that the bill could actually increase the likelihood of British soldiers and veterans being prosecuted for war crimes at the ICC.
THE GOVERNMENT'S ARGUMENT
The bill was promised as part of the Conservative party's 2019 manifesto, which pledged to address "vexatious legal claims" which “have recently undermined our armed forces” according to the party. The bill arose partly in response to the actions of human rights solicitor Phil Shiner who had brought multiple false claims against British Iraq war veterans. He was struck off in 2017 for professional misconduct.
The Minister for Defence People and Veterans, Johnny Mercer, argued that "this legislation is not about providing an amnesty or putting troops above the law but protecting them from lawyers intent on rewriting history to line their own pockets." During the debate on the 23rd of September 2020, Mr. Wallace said: "The Bill is not an amnesty, a statute of limitation, or the decriminalisation of erroneous acts. We will continue to protect the independence of our prosecutors and our service police, and we will investigate and, if necessary, prosecute service personnel who break the law. But what we will not accept is the vexatious hounding of veterans and our armed forces by ambulance-chasing lawyers motivated not by the search for justice, but by their own crude financial enrichment."
CALLS TO REJECT THE BILL
This August 2020, it emerged that the Ministry of Defence had withheld evidence suggesting that Special Air Service (SAS) soldiers may have executed 33 Afghan civilians in early 2011. Mr. Wallace is required by this autumn to explain why the evidence was not previously disclosed. In addition to this evidence, previous public inquiries have raised concerns about the possibility that British soldiers committed war crimes in Afghanistan and Iraq.
Some opponents to the bill fear that it will make it near impossible to prosecute British soldiers for war crimes and would weaken Britain's international authority as a 'champion' of human rights. Calls to reject the bill also point out that the British government recently admitted that its Internal Market Bill would break international law. If the Overseas Operations Bill becomes legislation, it could have far reaching consequences for Britain's footing on the international front and limit access to justice for veterans at home.
Ayesha is a LLB student at the University of Leeds. As an aspiring barrister, she enjoys advocacy and has spoken at platforms including Tedx and GESF. She has a key interest in both Public and International law. She is also founder of a student-led initiative 'COSMOS' that organises projects to promote the UN Sustainable Development Goals.