Some of us can be excused for missing a recent, depressing milestone in the spate of shortsighted decisions that have been undermining international justice in the last few years. This is because it happened on Nov. 3, 2020, and it did not happen in the United States. On that day, the United Kingdom’s (UK) House of Commons, under Boris Johnson’s government, held the third and final reading (debate) of the Overseas Operations (Service Personnel and Veterans) Bill. This is effectively the de facto legislative decision point in a Westminster style parliamentary system.
The Overseas Operations Bill, inter alia, creates a presumption against prosecution in certain circumstances for UK armed forces members accused of crimes (including torture), when committed overseas. After five years from the date of the alleged criminal activity, a prosecutor has to use an appeal of “exceptional circumstances” to the Attorney-General in order to advance any prosecution, making this Bill akin to a quasi-statute of limitations. It also prevents human rights and civil litigation from being brought after six years from the date of the conduct at issue, and permits derogation by the UK from the European Convention on Human Rights ahead of military operations abroad.
In its assumption that most claims are fake and victims merely opportunistic, the Bill’s impact is to make accountability for core international crimes more difficult and to limit access to justice for the victims of those crimes. It also risks the UK breaching its treaty obligations, such as those under the United Nations Convention against Torture (UNCAT), which the Committee against Torture has interpreted as precluding statutes of limitations.
A wide range of organizations, from those concerned with human rights and international justice, like REDRESS and JUSTICE, but also others, such as the UK Law Society and the British Legion, have condemned this Bill. They varyingly point out that it is ill-considered; inconsistent with criminal, civil, and human rights law; prevents even UK military personnel and their families from holding their government to account if their human rights are violated; is contradictory to how one of the UK’s international treaty obligations is interpreted by the body most closely associated with that treaty; and stands to undermine the reputation of the UK armed forces, with the possibility of putting them at greater risk.
For all those in the international community concerned with international justice, not noticing the passage of this Bill on the day of the 2020 US presidential elections is one thing. But there can be no excuse for not knowing, understanding, or caring about its negative implications when the same Boris Johnson government had a national competing for perhaps the most important and visible international criminal justice position in the world: Prosecutor of the International Criminal Court (ICC). UK Barrister Karim Khan has now been elected. The result is that the states parties to the ICC have rewarded a country that is undermining international justice. And some of the other players in the international community let it happen, without raising their voices.
The negative impact of this Bill goes beyond how it undermines international justice within the UK, because it comes from one of the most influential architects of our current system of international criminal justice. If a country like the UK can casually “play fast and loose” with the international justice rules and standards that it painstakingly helped to forge, then it becomes much more difficult for anyone to complain when others flaunt the rules. Just answer this: Will maintaining a rules-based system and ensuring international security be easier, or more difficult, when the voice of the UK (a permanent member of the UN Security Council) lacks credibility in the face of acts like torture, elsewhere?
Unfortunately, this Bill is not a single, isolated lapse by just one member of the international community. Nor is the mess that the ICC Assembly of State Parties (ASP) made of the ICC Prosecutor’s selection process an aberration in how senior international public servants are elected. This process already tends to be less about merits and qualifications and more a “beauty-contest” between states, where the value of each vote is traded like cryptocurrency within the political context of other international elections and issues. The months of confusing, opaque series of processes certainly did not make it easier for an important piece of information, like the UK’s Overseas Operations Bill, to be properly taken into consideration.
The last few years have seen a worrying number of such situations: the international community has seemingly forgotten why rules matter, and instead has treated international justice mostly with budget-focused lip-service. There is a negative contrast between the energy, enthusiasm, and principled work of the early 1990s and the first years of the 21st century. Cementing the notion of individual criminal responsibility for core international crimes, such as genocide, war crimes, and crimes against humanity, gave the international community an enhanced set of tools to break recurring cycles of violence through deterrence and accountability. But the political will that created the ad-hoc tribunals for Rwanda and the former Yugoslavia, the Special Court for Sierra Leone and several others, and the permanent international criminal tribunal in the form of the ICC, is now little in evidence.
Any system, especially a system of laws, is quickly diminished if it is not supported and applied consistently. Electing an ICC Prosecutor from a country that is passing legislation that undermines international justice is just the most recent example. Other examples of neglect unfortunately abound. Expressing only half-hearted outrage that followed the Trump Administration’s personalized attacks on employees of the ICC and anyone who renders “services” or “material assistance” to the international court is not supporting international justice. Neither is meekly accepting the mandate and “terms of reference” for an investigative body set up by the UN, that clashed with the longstanding international practice of ensuring that an investigation is about what happened and who may be responsible, within defined geographic and temporal parameters. This occurred with UNITAD, the “Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL” in Iraq. Investigating just one party to the conflict – even if that party is ISIL/Daesh — and turning over information to another party, the government of Iraq – even if they are again our allies – a party where trials have not met international standards of fairness, and that employs the death penalty, undermines the consistency of application that is necessary for a system of laws to be accepted as credible.
Undermining international justice leaves us in a world with many conflicts but fewer solutions. A world that is less safe and less prosperous. A world that has already demonstrated its limited ability to cooperate and coordinate even in the response to a global pandemic. This is why it is puzzling that so many states, and even the United Nations, for example in the context of UNITAD, seem to be so unmindful of the long-term consequences of their neglect.
It is relatively easy to look like a competent decision-maker or influencer in optimistic, cooperative times. In times when making a compromise, or when “looking the other way” so that some deal can be announced, does not result in undermining our basic structures. As we are witnessing, however, competence is a more difficult standard to achieve in today’s uncertain times. It seems to have been forgotten that it is precisely by maintaining principles, doing due diligence, and observing the rules that optimism and cooperation is created.
Something else vital that our decision-makers and influencers seem to have missed is that the biggest winners of a weakened international justice system are the many authoritarian and dictatorial leaders in the world. When governments and international institutions ignore that agreed laws need to be upheld, they create a permissive environment in which both real and would-be dictators feel freer to act with impunity. At a time when even democratic governments are imposing restrictions on human rights, populist nationalists are taking advantage of a climate of neglect to grab more power and longer rule.
Undermining the rules-based system emboldens heretofore inconceivable acts, such as the campaign of lies and hectoring that incited domestic terrorists to storm the US Capitol. If this is allowed to continue, the biggest losers will be those of us who are committed to living in democratic societies under the rule of law. Yet to benefit from the predictability, equality, and safety of a rules-based system, our laws cannot be ignored when inconvenient, and must be defended when they come under attack. Neglect this, and ours is a future where the rights we now take for granted may not even be taught in history books.