The overseas impunity bill

When UK armed forces take part in military operations overseas, they are subject to criminal law, human rights law and international humanitarian law. This is only right—we expect and support our armed forces to uphold and respect the rule of law, and this does not change just because they are on overseas operations.

The law protects aid workers, civilians and foreign military personnel. Sadly, we know from public inquiries and court cases that, while far from commonplace, human rights abuses and serious criminal acts can and do take place during overseas operations. For example, the Baha Mousa Inquiry in 2011 found that Mousa, an Iraqi hotel clerk who died in 2003 while in the custody of British soldiers, was the victim of an “appalling episode of gratuitous violence.” In 2017, the case of Alseran revealed the use of prohibited interrogation techniques, physical assaults and sexually humiliating treatment of detainees by British soldiers.

The law exists to prevent such abuses—but it also protects our own service personnel. In 2013, the Supreme Court found that members of the UK armed forces, or their bereaved relatives in the cases of those who had died, were protected by the European Convention on Human Rights in relation to claims that their equipment was inadequate and had contributed to their injuries or deaths.

There has, however, been a longstanding problem of inadequacy with regard to Ministry of Defence (MoD) investigations into alleged wrongdoing during overseas operations, including investigations that were not fit for purpose and needed to be repeated. This has served neither the interests of justice nor any of those involved.

In its Overseas Operations Bill, the government is seeking to limit what it calls “vexatious litigation.” The bill has three main elements. It introduces a statutory presumption against prosecution after five years for crimes committed by members of the armed forces while on overseas operations; creates shorter and less flexible periods for claims by members of the armed forces and civilians against the MoD for human rights violations, personal injury and death; and introduces a duty to consider derogating from the European Convention on Human Rights in respect of future overseas military operations.

Those who represent veterans, senior members of the armed forces, NGOs and legal representatives have expressed serious concerns about the bill. The Joint Committee on Human Rights, which I chair, has backed up those concerns. In an October report, we said that the bill significantly diminishes the rights of members of the armed forces and civilians. It is indefensible, ineffective and will prevent justice from being done. The JCHR concluded that “the bill breaches the UK’s international legal obligations under international humanitarian law, human rights law and international criminal law.” And it does nothing to redress the injustice caused by inadequate investigations.

The bill creates barriers to the Service Prosecuting Authority’s ability to pursue members of the armed forces who commit crimes. It disregards the time it takes and the many complexities and difficulties involved in bringing such claims to light. It is wrong that the government should seek a presumption against prosecution even for the most serious human rights violations, such as crimes against humanity, war crimes, murder, torture or genocide.

Introducing the bill in parliament, the Secretary of State for Defence Ben Wallace said: “The system as it stands provides an all-too-easy route for lawyers to spark repeat investigations and multiple claims, too many chances to earn fees and too many chances to drag yet another soldier through a witness box or an interview.” Yet investigations into incidents arising from the UK’s involvement in conflicts have exposed extremely serious wrongdoing, while our committee heard evidence that repeat investigations are largely a result of poor initial investigations that lack sufficient independence. It is therefore vital that future action to investigate and prosecute such crimes can continue unimpeded— to this end the MoD should establish an independent, skilled and properly funded service for investigations.

Ministers’ repeated allegations of “vexatious” lawfare claims, when applied to claims against the MoD that were neither, show a failure to respect the role of the independent legal profession in upholding the rule of law, the role the courts already play in striking out vexatious claims, and the independence of the Service Prosecution Authority. We asked the MoD minister to tell us of any cases where he believed the courts failed or refused to use their powers to strike out unmeritorious claims. He was not able to provide one. We asked the MoD minister to inform us of any prosecution brought by the SPA that he considered to be vexatious. He was again unable to do so.

Our overseas personnel are not above the rule of law. Without amendment, the bill as it stands will allow those in our armed forces who perpetrate serious crimes to escape justice, and prevent victims with justified claims from bringing wrongdoing before the courts. It is bad for the rule of law, bad for the victims of crime and bad for our soldiers. The government must understand and reflect on how this bill may damage our international standing and the reputation of our armed forces.

This article features in Prospect's new legal report in partnership with the Bingham Centre for the Rule of Law, Jones Day and the City of London Corporation