Analysing the UK’s Overseas Operations Bill and its Loopholes for Abuse

The United Kingdom (“UK”) Government in 2019 sought to pass a legislation that would obstruct prosecutions against British troops for crimes committed whilst serving abroad. The Overseas Operations (Service Personnel and Veterans) Bill (“Operations Bill”) was introduced after some operations of the UK in Iraq and Afghanistan gave rise to an unprecedented number of legal claims against British personnel, years after the incident had taken place. The UK claimed that these allegations were false, and it introduced this Bill to protect their troops from such accusations. The Operations Bill aims to protect British personnel by creating a statutory limitation of five years against the prosecution of alleged offenses committed by its troops when deployed outside the British Islands. It also introduces time limits on some civil claims and claims made under the Human Rights Act, 1998

This Bill has faced much criticism for being wrongful and dishonest, and it has been argued that the Operations Bill violates UK’s obligations under international humanitarian law, human rights law and international criminal law. While crimes concerning sexual violence have been exempted from its ambit, it includes several heinous crimes under the Geneva Convention such as torture and other war crimes. In this vein, the question that this article addresses is whether the State’s duty to protect its troops from baseless allegations is a valid justification for such a bill. While the Operations Bill has been halted and is not yet law, it is important to understand both, the implications of its enactment, as well as the international legal obligations it would violate if it were to become law.

Violation Of The UK’s Absolute Duty to Prosecute Torture 

The use of torture or other cruel, inhuman or degrading treatment or punishment (“CIDTP”) is absolutely prohibited under Article 2 and Article 16 of UN Convention against Torture (“UNCAT”), Article 7 of the International Covenant on Civil and Political Rights (“ICCPR”) and Article 3 of the European Convention on Human Rights (“ECHR”). Protection against torture is a non-derogable right that may never be suspended, even when national security is threatened, during times of war, or during other public emergencies. This prohibition of torture and other CIDTP, after the enforcement of UNCAT, has been recognized as a jus cogens norm, as also held by the Trial Chamber in Prosecutor v. Furundlija. It cannot be derogated from in any situation or be covered by statute of limitations. Apart from the applicability of this norm as jus cogens, the UK is one of the countries which has ratified the UNCAT, ICCPR as well as the ECHR. Despite this, through the Operations Bill, the UK aims to provide protection to its troops against torture by putting forth a statute of limitation on prosecuting them. It is here that the UK’s duty to investigate and prosecute torture gains relevance. 

The duty to investigate torture has been held to go hand in hand with the duty to prosecute by international tribunals. Further, the duty to investigate has bearing and is derived from several sources of international law. The duty arises as soon as the States become aware of allegations or find grounds to believe that war crimes might have been committed. The obligation to conduct such an investigation against war crimes and crimes against humanity is one that exists irrespective of the time that has lapsed. Indeed, the public interest in such a prosecution has been “firmly recognized” by the European Court of Human Rights (“ECtHR”) (Brecknell v. The United Kingdom). Similarly, in Husayn (Abu Zubaydah) v. Poland, where the applicant was abducted from his home in March 2003, and investigations began in 2008, the case was not brought before the ECtHR until 2013. However, the passage of time was not even a point of contention in front of the court. This is just one of the many cases where international courts have not concerned themselves with the question of passage of time when prosecuting crimes against humanity, torture, and other heinous war crimes. 

While it may seem that the Operations Bill places a limitation only on prosecutions, such bars along with the elements of discretionary prosecution will certainly give rise to investigative hurdles. Most especially, a prosecutor can only proceed with prosecution after the five years limit if it is exceptional. Certain matters will be given weight by the prosecutor to arrive at this determination, after which the proceedings may continue with the assent of the Attorney General. The matters being – first, the adverse effects of the conditions the personnel were in at the time of the alleged crime, and the possible impact of such conditions on their mental health which may have cost them their ability to make sound judgements; second, if there is “compelling new evidence” in cases where there has been a previous investigation. 

The determination of the magnitude of impact on mental facilities as well as the standard for new evidence that would count as compelling is left up to the prosecutor’s discretion. This discretion without checks and balances will only make it difficult for prosecutions to actually take place. The potential and likelihood of investigations being unnecessarily delayed to extend them beyond the five year period also increases significantly. The International Committee of Red Cross has stated in its commentary on Grave Breaches of International Humanitarian Law that if there seems to be enough evidence to bring a charge, national rules of prosecutorial discretion cannot be relied on to not put it forth. However, this is exactly what the Operations Bill would result in. 

Furthermore, in Barrios Altos v. Peru the Inter-American Court of Human Rights held that provisions and state measures which aim to eliminate responsibility by preventing investigation and prosecution of those responsible for serious human rights violations are inadmissible. The five-year limitation does partially eliminate responsibility of those allegedly responsible, hence creating a de facto amnesty in the process which is also against the generally accepted rules of international law.

The UK’s Investigative Deficiencies

The Operations Bill also fails to account for the general investigative deficiencies demonstrated by the UK with regard to investigating war crimes conducted by its military personnel. The Joint Committee of Human Rights (“JCHR”), commented that the UK’s investigations have been found to be “inadequate, insufficiently resourced, insufficiently independent and not done in a timely manner to gather adequate evidence” (¶34) The Committee concluded in such a manner due to the repeated investigations that had to be done to remedy the flaws and oversights of the previous investigation on the same claims. 

This observation was made especially on basis of the Ministry of Defense’s lackluster response and their inability to investigate itself properly with regard to the allegations made against the UK’s soldiers currently deployed in Iraq and Afghanistan. The claims bring to light torture allegations (some as recent as 2010), with investigations continuing for several years. The Operations Bill incorrectly attempts to deal with the problem of repeated investigations by enabling the State to evade its duty to ensure an impartial and timely investigation. Furthermore, it uses the grounds of mental health and the traumatic impact of war to excuse acts of gross cruelty instead of finding methods to regularly monitor the mental health of their soldiers and introduce ways to ensure that they are given the help needed to cope with the horrors of war. These cannot be grounds for the UK to completely negate its obligations under international law to prosecute, investigate, prevent and try instances of torture and crimes against humanity. Thus, on all these counts, the Operations Bill is in violation of international law.

Considering the Larger Implications of the Operations Bill

The Operations Bill has been said to be detrimental to human rights, victims, and the soldiers it aims to protect. The soldiers will still be open to prosecution, the only difference being if the UK courts do not welcome such prosecution, the International Criminal Court (“ICC”) may potentially step in. As held by African Commission on Human and Peoples’ Rights in Prosecutor v. Kallon Kamara, “a State cannot bring into oblivion and forgetfulness a crime, which other States are entitled to keep alive and remember” (¶67). War crimes and crimes against humanity, such as torture, are crimes which grant all states universal jurisdiction under international law. Thus, if the UK is “unwilling or unable” to try its accused personnel, other states would still hold jurisdiction on the matter and investigation against these accusations can be initiated by ICC’s Prosecutor. It is also regrettable that the UK has considered this presumption against prosecution through the Operations Bill, despite the fact that it is a party to the Rome Statute, which aims to ensure that serious crimes do not go unpunished. 

Barring prosecution or making it difficult altogether hardly seems to be the ideal way for the UK government to protect its soldiers from vexatious claims. Doing so is a disservice to the victims and a license to the soldiers deployed in foreign states where no matter how heinous their actions, some sort of protection will be afforded to them. The reason investigations are reopened and dragged on, is because they are not done properly the first time. The Operations Bill does not attempt to fix these investigative problems but instead promotes an inadequate and unjust response to a real problem. The UK does have mechanisms in place which aim at striking out and preventing trial on basis of vexatious claims. As emphasized by JCHR, there is no evidence to prove that these mechanisms have been wholly inadequate and are allowing prosecution on the basis of non-meritorious claims. Hence, a more prudent way for the Operations Bill to address this issue would be to include measures that strengthen the investigative procedures so that the process becomes prompt and efficient. Furthermore, measures such as strengthened hold and supervision by the military hierarchy can be introduced along with ensuring that the mental health of soldiers is accounted for and necessary aid is provided to reduce likelihood of soldiers resorting to such actions. Instead of denying justice altogether under the garb of protection and using deteriorating mental health as an excuse to pardon gross human rights violations, what is required is addressing legal lacunas and streamlining the UK’s criminal justice administration.

Anshita Sethi and Ishika Mittal are third year law students at Jindal Global Law School.

Image: Matthew Horwood/Getty/The Atlantic.

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