The British government is considering unprecedented and comprehensive measures designed to shield both individual members of the Armed Forces and the Ministry of Defense (MoD) from legal scrutiny for historic alleged wrongdoing. The protections would apply in a manner likely inconsistent with the U.K.’s obligations under both international and domestic law.
The U.K. government is due to release its response shortly to its public consultation that concluded in October on the package of measures, entitled “Legal Protections for Armed Forces Personnel and Veterans Serving in Operations Outside the United Kingdom.” The proposals were framed as tackling “lawfare” or the “judicialization” of war – in other words, addressing ostensibly (though not in reality) excessive civil or criminal prosecution of alleged violations by British forces, especially, though not only, in foreign wars.
If taken forward, these proposals risk fostering a culture of impunity among U.K. forces that inevitably would reverberate on partners in military coalitions, as the absence of avenues to gain justice for abuses creates blowback in the form of threats and attacks on troops in the field.
What’s more, the proposals must now be set against the backdrop of evidence reported by BBC Panorama and The Sunday Times in November of a potential cover-up by the U.K. government and MoD of war crimes committed in Iraq and Afghanistan. The stories prompted the International Criminal Court (ICC) to say it would independently assess the reports and consider launching a full investigation.
While the government has yet to publish its response to the consultation, the landslide victory of the Conservative Party in the recent general election on a manifesto that included a commitment to end historic claims against the Armed Forces indicates the proposals are even more likely to advance in the form of legislation and increases the chances of them gaining parliamentary approval.
In recent years, a growing chorus of voices – primarily parliamentarians with a military background, military commanders and former members of the Armed Forces – have criticized investigations aimed at holding accountable Armed Forces personnel for alleged misconduct in Northern Ireland, Iraq and Afghanistan. Detractors argue that current and former members of the Armed Forces have been subject to “vexatious” or unjustifiably repeated legal actions that are damaging morale, and that the legal actions undermine U.K. security.
Such pressure against proper investigations completely overlooks the U.K.’s troubled history of failing to properly investigate allegations of wrongdoing by both the MoD itself and members of the Armed Forces during these conflicts. Both those who support and those who oppose legal protections broadly agree the MoD’s investigatory processes have been deeply unsatisfactory.
In the context of Northern Ireland, there has been no overarching mechanism to deal with the legacy of the conflict. Instead, several criminal justice processes examine unresolved conflict-related deaths. Such procedures were formed not by the U.K. itself, but as the result of a series of Article 2 (‘right to life’) judgments from the European Court of Human Rights (ECtHR). While the Director of Public Prosecutions for Northern Ireland has taken prosecutorial decisions in 26 legacy cases relating to “the Troubles” since 2011, only six are against former military personnel.
Just last year, the U.K. Supreme Court ruled that investigations into the 1989 murder of Belfast lawyer Pat Finucane failed to comply with Article 2 of the European Convention on Human Rights (ECHR). In 2012, former U.K. Prime Minister David Cameron apologized for “shocking state collusion” in Finucane’s death. The Historical Investigations Unit – one of four legacy institutions set out in the 2014 Stormont House Agreement to handle investigations into deaths during the Troubles – has yet to be established.
The U.K. Armed Forces’ response to allegations of wrongdoing in Iraq has been similarly replete with failings. Despite significant evidence of serious abuses and wrongful deaths – including through multiple civil judgments finding the MoD liable for harm caused to Iraqis, along with out-of-court settlements – a large proportion of criminal investigations have been shut down. As a result, there has been a lack of criminal accountability for extremely serious acts that might otherwise result in conviction and punishment. Domestic proceedings have only led to a handful of prosecutions against lower-level soldiers, and there has been no accountability whatsoever for senior officials. And as the new Panorama-Sunday Times revelations suggest, the U.K. government and MoD may in fact have actively sought to cover up the killing of civilians by British personnel in Iraq and Afghanistan.
The consultation puts forward three substantive proposals, targeting both criminal and non-criminal cases related to alleged violations outside the U.K, — in other words, the proposed legislation would not provide the same protections in cases related to the Troubles in Northern Ireland:
- To introduce a statutory presumption against prosecution of current or former Armed Forces personnel for alleged offences committed in the course of duty outside the U.K. more than 10 years ago. The presumption would not apply, though, to offences alleged to have been committed by members of the Armed Forces against fellow personnel, or against other Crown Servants, essentially establishing a two-tier system in which the death of or injury to British personnel is of greater legal consequence than non-British personnel or civilians.
- To create a new partial defense to murder, which would be available to current and former Armed Forces personnel who caused death in the course of duty outside the U.K. through the use of greater force than strictly necessary for the purposes of self-defense in the “heat of the moment,” providing the initial decision to use force was justified.
- To restrict the discretion of the courts to extend the normal time limit for bringing compensation claims for personal injury and/or death in relation to historical events outside the U.K.
Each of the three proposals is not only unprecedented as a matter of domestic law, but also has serious implications for the U.K.’s international obligations. This author’s civil liberties and human rights organization, Liberty, set out its full concerns in a response to the MoD consultation. The focus of the remainder of this piece is the proposal to introduce a statutory presumption against prosecution of current or former Armed Forces personnel. If introduced, the measure might well pique the interest of the ICC in its investigation into the U.K.
Presumption Against Prosecution
Criminal offenses have no statute of limitations in the U.K., apart from some minor summary and regulatory offenses. The MoD’s proposal – to introduce a one-sided statutory presumption against “prosecution of current or former Armed Forces personnel for alleged offences committed in the course of duty outside the U.K. more than ten years ago,” except in certain extraordinary circumstances – is completely unheard of as a matter of U.K. law.
There is a considerable lack of clarity on the nature of offences to which this would apply. On the one hand, the consultation document refers to the U.K.’s obligation to investigate “allegations of serious offences, including of grave breaches of the Geneva conventions” and the intent to “honor our obligations under the Rome Statute” (p. 8). Yet on the other hand, the document goes on to propose that the presumption would apply to “all alleged offences” (p. 10), of “any type” (p. 10), despite the possibility of “particular considerations relating to certain types of offence (e.g. sexual offences or torture), which may mean the presumption should not apply” (p. 11).
Article 29 of the Rome Statute clearly states that crimes within the jurisdiction of the ICC cannot be subject to statutes of limitation domestically. The International Committee of the Red Cross identifies this as a principle of customary international law (Rule 160), adding that state practice establishes this as a norm that applies to “war crimes committed in both national and non-international armed conflicts.” Similarly, the application of amnesties to war crimes is precluded as incompatible with obligations on states to investigate crimes under international law and violations of non-derogable human rights, meaning rights which can never be suspended even during war or other emergency (Rule 159).
Domestic laws that limit domestic legal proceedings are considered by the Office of the Prosecutor of the ICC when it assesses the admissibility of any complaint under Article 17 of the Rome Statute. The introduction of a presumption against prosecution of potential war crimes would likely contravene the U.K.’s obligations under international law by, in certain circumstances, making it impossible to investigate or prosecute international crimes.
This would further increase the likelihood of the ICC opening a full investigation against the U.K. related to the situation in Iraq (and potentially elsewhere), because it would send a strong signal that the U.K. is not committed to the principles of accountability. Indeed, the U.K.’s MoD itself has previously acknowledged the “substantial risk” of the U.K. being deemed “unable” to carry out effective investigations or prosecutions. These proposals put the country on the path to more investigations and prosecutions at an international level, rather than fewer.
What Comes Next?
The government has faced sustained pressure to legislate on this issue quickly, particularly from parliamentarians who previously served in the Armed Forces. Following the Conservative Party’s victory in the recent U.K. general election, it is now clear that historic legal claims against members of the Armed Forces will be high on the agenda.
In fact, as part of the Conservatives’ election campaign, the party pledged to push forward several other drastic measures, including:
- Amending the Human Rights Act (HRA) 1998 – the legislation that incorporates the European Convention on Human Rights (ECHR) into domestic law – so that it can never apply retrospectively. The act came into force in October 2000, so the proposal would exclude any cases before that date. Already the HRA only applies retrospectively in exceptional situations – under Article 2 (right to life) where the government may have been complicit in a death and where a significant proportion of procedural steps took place after the convention had come into force. Serious concerns have been raised about this proposal in the context of legacy issues in Northern Ireland, because Article 2 would no longer apply to Troubles-related deaths.
- Introducing legislation to ensure that IHL has primacy and that “peacetime laws are not applied to service personnel on military operations.” No further details on what this would mean in practice have been made public, nor is it clear whether it relates to limiting jurisdiction of the ECHR as it applies to the U.K. vis-à-vis the HRA.
Since securing a majority government, the Conservatives have committed to making good on the party’s election pledges: The December Queen’s Speech includes reference to bringing forward legislation to address historical allegations and measures to “tackle” the “inappropriate” application of the HRA to issues arising before October 2000. While little more by way of official statements regarding next steps has been made public, Veterans’ Affairs Minister Johnny Mercer recently tweeted his 2020 priorities, including bringing an end to historical prosecutions.
Throughout the consultation document and in every public statement on this issue, the U.K. government is at pains to stress it does not consider members of the Armed Forces to be above the law. However, that is exactly where these proposals would put them. The answer to the legitimate concerns of those who have faced repeated investigations is not to elevate an entire class of individuals above the reach of the criminal law in all but the most exceptional circumstances. The answer is to get investigations right the first time.
As with any credible allegation of abuse made against anyone, effective, prompt, independent investigation is what the law requires and what victims of wrongdoing deserve. When this fails – as it has in every recent conflict the U.K. has taken part in – justice is denied to everyone involved.
The coming months will prove to be a pivotal moment in the story of truth and accountability for the MoD and members of the U.K.’s Armed Forces. It is not yet clear how much impact the November revelations will have on the government’s approach to legislating on this issue, though a recent dismissive statement from the government in Parliament suggests not much. What is becoming increasingly clear is that a major fight is on the horizon over the future of the U.K.’s commitment to — and implementation of — human rights standards. That discussion will involve major questions over who is bound by human rights law, when and where.