The Overseas Operations (Service Personnel and Veterans) Bill 2019-2021: A Pragmatic Response to Over-Zealous Claims Against the Military or a Vehicle for Impunity? Introduction to the Symposium on the Overseas Operations (Service Personnel and Veterans) Bill

The United Kingdom (UK) Government has introduced the Overseas Operations (Service Personnel and Veterans) Bill to regulate legal proceedings stemming from operations of the UK armed forces outside of the British Islands. The Bill received its first reading in March 2020 and it is anticipated that the second reading will take place in September or October this year. At the time of writing, the Bill was also subject to scrutiny by the Parliamentary Joint Committee on Human Rights.

The background to the Bill is the large number of allegations regarding torture, murder and related abuses that have been levied against British soldiers serving in Iraq and Afghanistan. The impetus for the Bill is the perception among some in the Government that legal proceedings against the UK armed forces have been brought with too much ease, that they are unfounded, or indeed ‘vexatious’, and once allegations are lodged, they are not put to rest despite individual soldiers having been exonerated. The Bill stems from a concern about the handling of claims by the Iraq Historical Allegations Team and its later incarnations and the need to protect veterans from the spectre of an unending cycle of re-investigations, a problem which the Defence Committee has warned ‘risks undermining not only morale within the Armed Forces, and the potential for future recruitment, but also trust in the rule of law.’ The commitment to ‘introduce new legislation to tackle the vexatious legal claims that undermine our Armed Forces’ is set out in the 2019 Conservative and Unionist Party manifesto, and continues to be a priority of the current Government.

Most prominently featuring among the various measures set out in the Bill is a statute of limitations-like proposal, now referred to as a ‘presumption against prosecution’, which would substantially change how the competent UK authorities go about investigating and prosecuting crimes committed by UK military when serving abroad. Also, the Bill includes a duty for the Secretary of State to consider derogation from the European Convention on Human Rights (ECHR) for overseas operations; amendments to the UK’s legislation domesticating the ECHR – the Human Rights Act (HRA), and a so-called ‘civil litigation longstop’, which if implemented is likely to severely limit civil litigation arising from the actions of the UK military when operating abroad. The focus of the proposed legislation is on overseas operations such as Iraq and Afghanistan. It does not extend to allegations concerning operations in Northern Ireland, though similar approaches are being contemplated to address historic and as yet unresolved allegations stemming from that conflict.

Leaving aside the question of whether the proposed measures are merited, it is clear they are controversial, to varying degrees, from a human rights and international law perspective.

This Bill – and the processes surrounding it – are the focus of this symposium. We see a number of crucial questions emerging here, including (but not limited to):

• Does a presumption against prosecution under certain conditions, read together with the need for Attorney General consent, amount to a de facto amnesty, and if so, what are the consequences of that?
• At present, the proposed legislation does not distinguish between alleged war crimes, including grave breaches of the Geneva Conventions, serious violations of human rights which allow for no derogation, and lessor alleged military infractions. Only certain sexual offences and offences against children are exempted. If a more robust system of distinction was introduced, where should the boundaries lie?

In setting out a presumption against prosecution, the Bill makes clear that it is to be exceptional for a relevant prosecutor to take a decision that proceedings should be brought against a person for crimes covered by the legislation. The Bill lists as factors to be taken into account and to be given particular weight, any adverse effect (or likely adverse effect) on the person of the conditions the person was exposed to during deployment, on their capacity to make sound judgments or exercise self control, or any other adverse effect on their mental health; or in a case where there has been a relevant previous investigation and no compelling new evidence has become available, the public interest in finality (as regards how the person is to be dealt with) being achieved without undue delay. How do these factors align with UK domestic and international criminal law in respect to allowable justifications or excuses?

• Should, and if so how should, the ‘public interest’ in finality be balanced against the public’s right to know and the victims’ right to truth?
• Does the introduction of limitations on the court’s power to override time limits for actions in respect of personal injuries or death which relate to overseas operations of the armed forces, and/or to specify factors to which a court must have regard in exercising that power to override time limits unduly restrict the Government’s obligations to afford victims with access to a remedy and reparation?
• How does the introduction of a duty to consider derogation under Article 15(1) of the ECHR, align with the UK’s human rights obligations?

This symposium features experts from academia and civil society who give their perspectives on these and related questions relating to the Bill and it’s context, including Noelle Quenivet (UWE Bristol); Aurel Sari (University of Exeter); Elizabeth Stubbins Bates (University of Oxford; and Daniel Holder (Committee on the Administration of Justice).

As organisers of the symposium we attempt to approach these issues objectively; yet we do not come into this debate without our own perspectives.

For one, we believe context is important for understanding the Bill and its likely consequences: The Bill and its potential application, as we see it, must be analysed in light of the government’s approach to the rule of law and accountability for alleged military abuses, including on-going domestic investigations of crimes committed in conflicts abroad which are heavily opposed by many in the conservative/ pro-military establishment (in the words of one, ‘irksome, irritating and upsetting for the Armed Forces’) but have so far led to only very limited accountability, and the approach various government figures have taken towards the lawyers and others involved in bringing the legal claims from these conflict zones. It must also be considered in light of the International Criminal Court’s (ICC) preliminary examination of the situation in Iraq involving allegations of war crimes by UK forces.

The camps are widely split; indeed they could hardly stand further apart.

On the one side, some government actors, the Defence Committee and others including in academia who support the type of measures introduced in the Bill argue that these restrictions are necessary because human rights law is not the appropriate legal framework governing armed conflict especially in light of the ‘ever expanding reach of the ECHR’; because we have been witnessing what the Defence Committee refers to as ‘cycles of investigation and re-investigation of current and former Service personnel’, which former Secretary of State for Defence Mordaunt labels ‘lawfare’. They say those in charge of the justice processes are ‘deaf to the concerns of the Armed Forces, blind to their needs’. In sum, they see a need for providing stronger legal protections against prosecution for current and former service personnel and more broadly legal claims relating to past conflicts involving the UK.

The other camp, in contrast, views the various efforts to restrict the application of particular legal frameworks and limit legal inquires and accountability as amounting to a ‘war-on-law’. They argue that the proposed measures, or at least the most radical of them, amount to a self-amnesty in the style of Latin American dictatorships; that domestic justice processes deliberately focus on low-key perpetrators; and they see a coordinated attack on the lawyers and NGOs that have worked to bring these cases, as they are being referred to as ‘activist left wing human rights lawyers’ by government ministers. Some are worried too what this may mean for the UK’s reputation internationally. In sum, they see a need for providing stronger legal protections for victims and expanding accountability for the armed forces.

At the heart of the debate is therefore not only the question of whether there is merit in the hundreds of cases arising out of the conflicts in Iraq, Afghanistan and elsewhere but also a more principled debate about what legal frameworks should govern alleged abuses occurring during armed conflict; what measures of justice are relevant to violations committed in these situations: who should deliver that justice and who should be held responsible for violations. But, to say that these are simply positions of principle is itself not accurate. The ECHR has determined in a series of rulings that human rights law can apply to the battlefield; it is simply a question of when and to what extent. But, as we have argued in research we conducted on the conduct of investigations into allegations of abuse perpetrated by UK armed forces in Iraq, the elephant in the room which we see as the real problem, which unfortunately is not addressed by the Bill, is the weakness of the initial in-theatre investigations, which have typically failed to uncover the truth of what happened, and in many respects, are the reason why so many investigations have had to have been re-opened and re-investigated, typically on the order of UK courts.

Beyond shedding light on the nature of the proposals entailed in the Bill, we hope this symposium will contribute to a better understanding of these broader issues and help inform a debate that has too often been driven by sentiments and politics.