The aim of the Overseas Operations (Service Personnel and Veterans) Bill to end ‘the cycle of reinvestigation of historic events’ is understandable. This is a problem which needs addressing.
But the Bill’s proposed solution of introducing a ‘presumption against prosecution’ of crimes by British service men and women after five years - unless a case is deemed ‘exceptional’ – is not the way to fix it. The effect of this presumption could put the UK in breach of its existing obligations to bring to justice any persons alleged to have committed serious international crimes.
The Geneva Conventions require the UK to bring before the courts all cases where there is sufficient evidence of the most serious war crimes - such as willful killing and torture - not just exceptional cases. And the UN Convention Against Torture requires prosecution of any torture allegations ‘in the same manner’ as for other serious offences.
In addition, if the proposed presumption impeded the prosecution of such crimes before our own courts, British servicemen and women could be left vulnerable to prosecution before the International Criminal Court (ICC) instead.
Under the ICC Statute, this can only happen if a state party is unwilling or unable to prosecute the crime itself. When the UK adopted its own legislation to implement the ICC Statute and became a party to it, the intention was this would never happen.
The UK foreign secretary at the time was able to state in the House of Commons that: ‘British service personnel will never be prosecuted by the International Criminal Court because any bona fides allegation will be pursued by the British authorities’. But if this Bill becomes law, the prospect of ICC prosecutions of British service personnel becomes more likely.
Victims at risk of injustice
There are other problems with the presumption against prosecution in the Bill. Sexual offences are excluded from the presumption and thus may be prosecuted whenever they took place. But while the exclusion of any offence is to be welcomed, it could mean that if, for example, a course of actions comprised both sexual offences and murder or torture, the presumption could bar prosecution on a charge of murder or torture, but allow prosecution of the preceding sexual offences.
Victims of torture could be treated less favourably in terms of achieving justice than victims of sexual crimes. The explanation given for excluding sexual offences from the presumption is that such offences should never be a part of warfare. But this is also the case for torture, war crimes and genocide.
There is also the difficulty that the Bill requires a prosecutor to treat alleged offenders who are British service personnel more favourably than those who are allied or enemy personnel. The Bill is giving different treatment to ‘them’ and ‘ours’ and encouraging the notion that crimes committed against our own soldiers must be treated more seriously than those committed by them.
This is at odds with provisions of the Geneva Conventions designed to uphold the equal application of the law and avoid the creation of a feeling of ‘victor’s justice’. It would also lead to victims being discriminated against in their ability to see justice done, depending on the nationality of the perpetrator.
In the ministerial foreword to the 2019 Voluntary Report by the UK on the Implementation of International Humanitarian Law at Domestic Level, Lord Ahmed wrote: ‘This Government is committed to promoting and upholding the rules-based international system, and we believe that the proper implementation of, and compliance with, [International Humanitarian Law] is an important part of that system. We are proud of our strong record of IHL implementation and compliance.’
It is doubtful whether such a statement can still be made if there is to be UK legislation that hinders prosecution of war crimes allegedly committed by UK servicemen and women and that discriminates in its justice system between UK personnel and personnel of other countries, thereby not only failing to meet the obligations of the Geneva Conventions but encouraging other countries to do the same.
Remove the presumption and focus instead on the quality of investigations
The Bill is now moving through the UK parliament. If the presumption against prosecution is to remain in it, amendments are needed. To achieve compliance with our international obligations, it would be necessary to exclude all acts which could constitute grave breaches or torture, whatever the precise charge that is laid.
And, to avoid the ICC taking on cases, it would be necessary to exclude all acts which could constitute the international crimes of war crimes, crimes against humanity, and genocide, as those crimes are defined in the International Criminal Court Act 2001.
But the best way forward is to remove the presumption against prosecution from the Bill and to attack the real problem in the right way instead. If investigations of incidents had been effective, if records had been properly kept, and properly made available, the problem would not have arisen.
To remedy this situation is where the focus should lie. And to meet the concern regarding purely historical allegations, the length of time since an alleged crime was committed should be one of the factors to be considered by investigators and prosecuting authorities in taking their decisions.
Elizabeth Wilmshurst, Distinguished Fellow, International Law Programme. She was a legal adviser in the United Kingdom diplomatic service between 1974 and 2003. Between 1994 and 1997 she was the Legal Adviser to the UK mission to the United Nations in New York.