Artillery Row

Protect veterans from vindictive prosecutions

The Overseas Operations Bill may prove Britain’s breaking point with the ECHR

The Overseas Operations (Service Personnel and Veterans) Bill is aimed at protecting servicemen from stale prosecutions arising from activities abroad a long time ago. It has not had a good press. It has been laid into by academics and human rights activists; last week a newly awakened Labour front bench, not to mention the Equality and Human Rights Commission, joined in the assault. 

The attacks are misguided, as we will see; but the Bill is more significant than that. For one thing, it raises issues of principle about the criminal law. For another, it bids fair to put the government on a collision course with the human rights establishment.

Once you take a machete to the jungle of verbiage, the Bill comes to this: it bars prosecution of servicemen for acts committed on postings abroad more than five years after the event unless there are exceptional circumstances, and even then, requires the Attorney-General’s consent. It adds that, in deciding whether circumstances are exceptional, particular regard has to be paid to the stress of active service and to whether there has already been a contemporary investigation. War crimes under international law in the Nuremberg sense, together with sex offences, are excluded from its effect.

Viewed objectively, this seems neither drastic nor objectionable. Until five years have passed it leaves matters exactly where they are at the moment: save for the laws of war, UK servicemen abroad are subject to exactly the same laws as the rest of us. And even after the cut-off it is difficult to see much wrong. Five years is a long time in the military; in most cases it is also ample to investigate crimes, and where it is not there is the “exceptional circumstances” get-out.

From the serviceman’s point of view, there is a great deal in favour of the proposal. He acts under large stress a lot of the time anyway; it is only fair to assure him that, short of egregious matters such as war crimes which remain untouched by the legislation, events more than five years ago can be regarded as a closed book. This argument, moreover, applies in spades where he has left the army and is making his way in Civvy Street or even in retirement. To hale him before a court-martial or civilian court in respect of what he did many years ago in another existence is likely to put him at a very considerable disadvantage. 

Wild allegations that the Bill would put the Armed Forces above the law are preposterous

There is also a further point: as the UK knows to its cost from the Iraq war debacle and other similar events, deployments abroad are the subject of much political controversy. A five-year cut-off has two immense benefits in this connection. First, it gives an element of protection where an administration has changed since the operation concerned and might otherwise be tempted to encourage a politically motivated search for offences committed during it. Secondly, other mischief-making for political ends cannot be ruled out, either by anti-war activists or by those wishing to make a politico-historical point. It is all too easy for those of this kind to trawl for allegations of crimes committed a considerable time ago, with a view to demanding their investigation and prosecution, and if this is refused seeking to cause difficulty by seeking a judicial review of the refusal. There is much to be said for protecting servicemen from being used as pawns in a game of political chess played by third parties with which they have no connection.

What, then, is the objection? Wild allegations that the Bill would put the Armed Forces above the law, or hand soldiers carte blanche to combine atrocity with impunity, are preposterous and can be put aside straight away. It has also been said that time-limits on prosecutions are in breach of the Geneva Conventions, or of other conventions such as the UN Convention against Torture: but a reading of these documents leaves one highly doubtful. Slightly more convincing, but not much, is the suggestion that this deprives torture victims of access to justice. But you need to remember that the five-year limit applies only to criminal prosecutions: civil claims are regulated, but they get a longer period of six years, and in certain cases more than that. 

Everybody should be given the chance to go straight and unmolested after a number of years

It has also been pointed out that the Bill privileges the military over the rest of us. Technically this is true: unlike many European countries and US states, we do not have any statute of limitations whatever for non-military crimes. But there are two answers to this. One is that the environment in which servicemen work, where barring truly exceptional circumstances obedience to orders has to be second nature and decisions often have to be taken under pressure, is surely a relevant difference. There is also another, which we cannot do grace to here and is worth an article in itself; namely, that if indeed soldiers ought to be treated like everyone else what is wrong is not the presence of a time-bar for military prosecutions but its absence elsewhere. To many people it is just as unattractive to see civilians being prosecuted for events taking place twenty or thirty years ago, as in the case of campaigns over historic abuse, as it is to see soldiers being prosecuted for long-forgotten events. Everybody, not just soldiers, should be given the chance to go straight and unmolested after a number of years.

Put shortly, it seems difficult to raise much in the way of convincing moral argument against the Bill. But we have deliberately left one thing until last: it could be make or break time for the UK’s relation to the European Convention on Human Rights.

You might have thought that the Convention had no relevance to acts committed in operations outside Europe, and certainly not to the question whether servicemen should be prosecuted in England for them. This would certainly be a sensible position. True, the Convention has a good deal to say about torture and inhuman or degrading treatment; but Art.1 specifically restricts Convention rights to those within the jurisdiction of a member state. Furthermore, it seems passing strange that if UK troops are operating jointly with, say, Australians in some country at the ends of the earth, the human rights of third parties should differ according to whether the man they encounter happens to come from South Wales or New South Wales. 

Unfortunately, you would be wrong. In a series of cases after 2011, the European Court of Human Rights provocatively – and highly controversially – extended the reach of the Convention on which it adjudicates, holding that it covered not only home affairs but also what UK troops did in Iraq, even though this was outside both the UK and indeed Europe. It also has a settled view that when it comes to torture or inhuman or degrading treatment (the latter concept being pretty widely defined), there is a duty on states not only to refrain from doing it but to investigate and if necessary, prosecute the individuals who did it. Indeed, it has gone on to suggest, though not yet to decide, that any time limit whatever on prosecutions is itself a breach of the victim’s human rights.

The government has every reason to reconsider its relationship with the Convention

This puts the UK government in a bind. If this interpretation of the Convention is right – and if push comes to shove an activist court would almost certainly uphold it – it seems to follow that refusal to follow up and prosecute allegations of (say) degrading treatment of a prisoner after five years were up, even for very good reasons concerned with fairness to the accused, would put the UK in breach of the Convention. Furthermore, while the UK does have the right to set aside its Convention obligations in the event of military operations, and indeed intends in future to do just that, this does not let it off the hook. The right to derogate from the Convention, while it exists, explicitly excludes a number of matters, including the duty to pursue, apparently for the lifetime of the accused, all allegations of inhuman or degrading treatment.

How this will play out in the next few months is anyone’s guess. The government could cave into the pressure from the human rights lobby and scrap the more contentious parts of the Bill, which would be a pity. But it is perfectly possible that it will take this as an opportunity to face down that lobby and continue with it. It would certainly have a moral justification to do so. When it signed the Convention in 1950, no-one had any idea that it would end up tying a government’s hands as regards the prosecution of crimes arising out of overseas operations by its armed forces. In 2020 the government, which incidentally is furious about this exercise in human rights mission creep, can quite plausibly say that faced with such a blatant power-grab it has every reason to reconsider its relationship with the Convention. Put bluntly, if it comes to an argument between being fair to British soldiers and accepting the abstract and expansive rulemaking of earnest human rights lawyers, it would be entirely justified in saying it prefers the former and if necessary will ignore the latter. If that means an almighty explosion from a Human Rights Convention that since 1950 has puffed itself up so as to resemble an inflated Aesop’s frog, so be it.

Addendum – 21 October 2020

It has been pointed out that there is a minor inaccuracy in this article, which does not appreciably affect the flow of the argument. In fact only some, and not all, war crimes are ipso facto excluded from the effect of the Bill. I am grateful to Sonia Sceats for drawing this to my attention – AT

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