The UK government is seeking to pass a new law, the Overseas Operations Bill, that would limit the prospects of prosecuting service personnel and veterans for committing war crimes whilst overseas. 

The Bill was introduced to Parliament on 18 March 2020 and went through its Second Reading at the House of Commons on 23 September 2020, which allows Members of Parliament (MP) to engage in debate over the Bill. At the end of the debate, the MPs voted in favour of progressing the Bill to the Committee Stage, which would see the bill being examined in detail and any necessary amendments made. 

WAR CRIMES

Article 8(2) of the Rome Statute of the International Criminal Court (Rome Statute), of which the UK is a signatory, lists the following acts as war crimes: 

1)     Wilful killing;

2)     Torture or inhuman treatment, including biological experiments;

3)     Wilfully causing great suffering, or serious injury to body or health; 

4)     Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; 

5)     Compelling a prisoner of war or other protected person to serve in forces of a hostile Power; 

6)     Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; 

7)     Unlawful deportation or transfer or unlawful confinement;

8)     Taking of hostages. 

The above is a non-exhaustive list, meaning that additional acts in other international treaties may also be considered war crimes. Under the Rome Statute, there is no limitation for when a person can be charged and prosecuted for committing a war crime (article 29).

LIMITING THE PROSPECTS OF PROSECUTION

The sole purpose of the Bill is to protect service personnel and veterans from possible prosecution for acts committing during tours of service. This is achieved through the creation of a “triple lock” approach to indictment that places additional considerations on the prosecution, including:

●      A presumption against prosecution in respect of alleged offences committed on overseas military operations more than five years ago, pursuant to which decisions to bring proceedings in such cases will be exceptional;

●      A requirement for prosecutors to give particular weight to certain matters in reaching decisions in such cases; and

●      A requirement to obtain consent from the Attorney General or, in the case of Northern Ireland, the Advocate General, before a prosecution can proceed. 

Most notably, under the new Bill, prosecution proceedings cannot be pursued by the victim after a lapse of five years following the incident in question, or 12 months after the date of knowledge of the incident taking place (section 7A). The enactment of a limitation period is inconsistent with the international law which governs acts of this calibre, which deem such measures unnecessary. These measures could obstruct the route to justice for those that do not come forward within these time limits, and by extension see the perpetrators let “off the hook”.

Historically, Britain has a reputation for failing to prosecute the perpetrators of war crimes committed overseas. A poignant example would be the Amritsar Massacre, which occurred on   13 April 1919. Reginald Dyer authorised soldiers to open fire on a crowd in India that were peacefully protesting against the enactment of new colonial-era laws that enabled authorities to order detention without trial, subsequently killing hundreds of innocent people, including children.  Nobody was ever brought to justice for this.

If the Overseas Operations Bill is passed and becomes law, it will “send a clear message that the [UK] government’s aim is to prevent justice for the most serious crimes committed by British nationals against foreigners.”

After having completed the Bar Professional Training Course (2018), Safia currently working as a Costs Advisor in a law firm. Her life goal is to make a positive change in the society we live in, no matter how small that change might be.

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