Legislating by Soundbite: The Overseas Operations (Service Personnel and Veterans) Bill

The Overseas Operations (Service Personnel and Veterans) Bill 2019-2021, if passed, would provide a ‘triple lock’ to render ‘exceptional’ prosecutions for criminal offences allegedly committed by the armed forces overseas (outside the UK) more than five years ago; shorten the limitation periods for actions in tort and under the Human Rights Act; and impose a duty on future Secretaries of State for Defence to consider derogating from the European Convention on Human Rights (ECHR) before future overseas deployments.

The Explanatory Notes to the Bill mention the government’s assumption ‘that international humanitarian law had primacy’ over international human rights law in the ‘uniquely complex environment of armed conflict overseas’. This phrasing suggests that the government prefers IHL to oust the application of the ECHR in armed conflict; an outdated approach to lex specialis, which fails to acknowledge the substantial convergence between international human rights law, international humanitarian law, and international criminal law in the past 25 years.

The Bill intends to reduce the extraterritorial ‘expansion’ of the ECHR, while reasserting international humanitarian law’s ‘primacy’, yet these soundbites are not made out. The Overseas Operations Bill does nothing to reduce the extraterritorial scope of the ECHR, and it undermines the enforcement of international humanitarian law.

As Carla Ferstman, Thomas Obel Hansen, and Noelle Quenivet have already explained, the Bill’s ‘triple-lock’ comprises a presumption against prosecution (clause 2), matters to be given particular weight by the prosecutor (clause 3); and the requirement that the Attorney-General (or Advocate-General for Northern Ireland) give permission before a prosecution take place (clause 5). This ‘triple lock’ is neither a blanket amnesty nor a complete statute of limitations, but it will undermine the enforcement of international law.

In this post, I focus on Schedule 1 to the Bill, which sets out a list of offences to which the triple lock will not apply; and I explain how this sits in tension with Schedule 2 of the Armed Forces Act 2006, which gives courts-martial jurisdiction to prosecute serious criminal offences under domestic and international law. I draw on my published research on reforms to the British Army’s training in international humanitarian law; and on the closure of investigations by the Iraq Historic Allegations Team (IHAT) and the Service Police Legacy Investigations (SPLI) on the grounds that alleged ill-treatment was at a ‘lower’ or ‘middle’ range of severity: terms unknown to international law.

As drafted, the Overseas Operations Bill could dent soldiers’ respect for international law, by undermining the part of their training which reminds them that investigations and accountability will follow for violations of international law in armed conflict. The Bill might entrench flawed investigatory practices, and creating incentives either to close investigations without a prosecution, or to leave investigations incomplete for five or more years.

Schedule 1

Schedule 1 includes a list of offences which are excluded from the triple lock. Therefore, if any of the offences listed were alleged to have been committed by a member of the armed forces deployed outside the UK five or more years ago, they would not be subject to the presumption against prosecution, matters to which the prosecutor should give particular weight, and the requirement of permission prior to prosecution. All the offences specifically listed in Schedule 1 are sexual offences, including those which derive from the International Criminal Court Act 2001. Schedule 1 excludes from the triple lock the crimes against humanity of ‘[r]ape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity’ under Article 7(1)(g) of the Rome Statute of the International Criminal Court, and comparable war crimes in international and non-international armed conflict. Command responsibility for these crimes appears in Schedule 1, as do offences based on attempts to commit the crimes.

Schedule 1 shows a clear policy priority to ensure there is no impunity for historic sexual crimes in domestic or international criminal law. Yet the crime of torture, criminalised in domestic law by s. 134 of the Criminal Justice Act 1988, in armed conflict by the Geneva Conventions Act 1957 (as amended) and by the International Criminal Court Act 2001 would be subject to the presumption against prosecution and other measures intended to make historic prosecutions ‘exceptional’. All other non-sexual war crimes and crimes against humanity are omitted from Schedule 1, and therefore within the purview of the Overseas Operations Bill, regardless of their inclusion within court-martial jurisdiction by Schedule 2 of the Armed Forces Act 2006.

Schedule 1’s selectivity undermines the enforcement of international humanitarian law. In keeping only one category of war crimes outside the Bill’s scope, the drafters fail to acknowledge that international humanitarian law foresees no time limit on the obligation to prosecute or extradite those suspected of grave breaches of the Four Geneva Conventions 1949 and Additional Protocol I.

Parliamentarians need to scrutinise Schedule 1’s omissions as closely as they read its text. Schedule 1 might be amended to include all international law crimes which have been specifically incorporated into domestic criminal law. As currently phrased, a victim of torture and rape in UK military custody might see defendants tried after five years for the rape, but any historic prosecution for the non-sexual torture that victim experienced would be ‘exceptional’ if the Overseas Operations Bill were passed.

By clause 6 paragraph 6, ‘The Secretary of State may by regulations made by statutory instrument amend Schedule 1.’ This is concerning for Parliamentary sovereignty and scrutiny, as it suggests that whatever the Parliamentary debate on amendments to Schedule 1, the executive can add and remove offences from the list at will. A further amendment is called for to remove this paragraph from the Bill.

The Bill Might Undermine Recent Reforms to Military Training

My research on the British Army’s reforms to training in international humanitarian law revealed ‘breadth and detail on IHL, with elements of international human rights law’. Soldiers learn about the prohibitions on torture and other ill-treatment, and about the use of force in armed conflict and in law enforcement or peacekeeping missions. From 2016, soldiers in initial and annual continuation training also learn about the investigations and potential prosecutions that would follow if they were to breach the international law applicable to armed conflict. Communication and practical training in international law prohibitions was to have been bolstered by awareness of the consequences that might follow if soldiers were to breach international law on operations.

The Overseas Operations Bill is in tension with this quite comprehensive approach to military training in international humanitarian law. If soldiers receive their training alongside a discourse about ‘Lawfare’ and the need to protect their fellow service personnel from investigations and/or prosecutions, the recent reforms to training might be significantly less effective than they might have been with a consistent approach to enforcement where crimes are alleged to have been committed.

The Bill Could Entrench Flawed Investigatory Practices

The Overseas Operations Bill does not address past flaws in investigatory practices, and it risks entrenching them. Investigations might be closed based on distorted terminology (e.g. closing investigations into allegations of ‘lower-level’ ill-treatment); incomplete because of the difficulties in collecting forensic evidence during armed conflict; or they might be stymied by non-cooperation: what the Judge Advocate in the Donald Payne court-martial called ‘the more or less obvious closing of ranks’.  These three factors are good reasons to re-examine past investigations, with a view to possible prosecution. The Overseas Operations Bill would fetter prosecutorial discretion so that re-opening such investigations five or more years after the alleged offence would become exceptionally unlikely.

Clause 4 paragraph 1 provides that the presumption against prosecution would apply to investigations which have ‘ceased to be active’ regardless of whether decisions had been made about charging an individual with a crime. This creates a perverse incentive simply to leave incomplete past investigations. Owing to the time limits on tort and Human Rights Act claims foreseen in clauses 8-11 of the Bill, it would be difficult to challenge any of these decisions in relation to past alleged crimes; and public scrutiny of investigatory practices would be firmly limited.

 The Overseas Operations Bill is an attempt at legislation by soundbite. If passed, it will not reassert the primacy of international humanitarian law over international human rights law. Instead, the Bill does nothing to change jurisprudence on the extraterritorial effect of the ECHR; and undermines international humanitarian law’s enforcement. In addition, the Bill could weaken reformed military training in international law, and entrench flaws in past investigatory practice.