UK getting dangerously close to providing impunity for war crimes
21 Oct 2020|

When is a war crime not a war crime? When it is committed by a British soldier more than five years ago—or at least that will be the case if the UK parliament passes the Overseas Operations (Service Personnel and Veterans) Bill. The bill has been voted through to the next stage in the House of Commons by a worrying 331 votes to 77.

The government has framed the bill as protecting British heroes in the armed forces against activist lawyers and suggested that criticising it amounts to denigrating the armed forces. That approach has been largely successful in silencing opposition to the bill.

But in recent months, ex-armed forces chiefs and senior legal figures (including the judge advocate general) have spoken out against the proposed legislation, saying that it damages Britain’s reputation as a defender of the international rule of law, papers over the inadequacies of the current system of war crime prosecution, and undermines morale and discipline in the armed forces.

If passed, the bill will create a presumption against prosecuting members of the UK’s armed forces accused of committing war crimes—including inhumane treatment, torture and murder—outside of a narrow, and arbitrary, five-year window. The attorney general will need to grant consent before any prosecution can proceed.

These measures combine to provide a ‘triple lock’ shielding alleged perpetrators from accountability under the UK’s legal system. According to the United Nations Special Rapporteur on Torture, Nils Melzer, this will ‘consolidate the impression of a deliberate policy of impunity’ and further erode ‘the UK’s traditional commitment to fundamental norms of international humanitarian law and human rights law’.

The bill imposes a limitation period on war crimes, which, in itself, is contrary to customary international law. The effect of this provision is that actions that fall under the umbrella term of ‘war crimes’ (only sexual assault is excluded) will be decriminalised in the UK.

Of most concern is the crime of torture, against which an absolute prohibition is firmly enshrined in international law. Not only is this a serious breach of the UN Convention Against Torture and the Geneva Conventions and their additional protocols, but it is also inconsistent with the UK’s own laws regarding the prosecution of serious crimes.

The UK, much like other common-law countries such as Australia and Canada, doesn’t impose a statute of limitations on indictable offences such as murder, torture and serious assault. Imposing one standard on the actions of British soldiers overseas and another for the rest of the population is contrary to one of the most fundamental principles of the rule of law: equality before the law.

The UK’s involvement in the wars in Iraq and Afghanistan ended in 2009 and 2014, respectively, meaning that this bill will grant impunity for anyone accused of war crimes in these conflicts. One commentator has drawn a connection between the reversal of the UK government’s decision to exclude torture (originally drafted as an exception to the proposed law alongside sexual assault) and the continued allegations that the British army used illegal interrogation techniques in Iraq and Afghanistan.

Proponents of the bill say it will stop ‘vexatious’ legal claims being made against British soldiers. While false or unsubstantiated accusations certainly must be addressed in any legal institution, creating a blanket limitation that also blocks prosecutions into legitimate and serious allegations is not the solution.

Vexatious claims happen, yet until now they have been dealt with in the UK’s legal system. If the UK government was sincere in its desire to address these problems, it would recognise that it already has the tools to do so. Instead, the government’s introduction of this bill fits a broader pattern of impunity for and denial of legitimate allegations.

In taking this path, the government has failed to acknowledge that if British soldiers accused of committing war crimes are effectively granted impunity in the UK, they will be more vulnerable to being prosecuted through the International Criminal Court.

The principle of complementarity grants the ICC jurisdiction only where a state proves to be ‘unwilling or unable’ to genuinely investigate and prosecute offences alleged to have been committed by its citizens. This is not a far-fetched prospect; ‘hardly any’ British soldiers, and no senior military or political figures, have been convicted, or even prosecuted, despite compelling evidence of crimes being committed in Afghanistan and Iraq.

In the UK, several investigations and inquiries have been closed at the preliminary stages because the allegations were deemed to be of low to medium severity. However, alternative legal analysis argues that the assessments of severity were inconsistent with international standards in that they considered only the level of physical harm rather than taking a holistic view of the actions to determine if they constituted inhumane treatment.

The UK’s Overseas Operations Bill, as well as the Trump administration’s sanctions against the ICC, are serious blows to the international fight against impunity.

In Australia, New South Wales Supreme Court judge Paul Brereton has spent four years investigating claims that Australian special forces breached the laws of armed conflict while on operations in Afghanistan between 2005 and 2016.

Defence Minister Linda Reynolds said recently that the investigation is nearing its conclusion and warned that Australians would be dismayed by its findings.

When the report is released, the world will be watching how Australia responds.