Does the Overseas Operations Bill open the door to war crimes?

Tomos Owen

On 23 September 2020, Parliament voted in favour of the Overseas Operations Bill after its second reading. The Bill is part of the government’s plans to prevent ‘vexatious’ claims against military personnel, but Human Rights Watch have suggested that the Bill could prevent individuals being prosecuted for legitimate war crimes. If passed in its current form, the Bill would create a presumption against prosecution for crimes committed by military personnel whilst on overseas operations if the incident in question took place more than five years ago. Whilst preventing vexatious claims is important, this goes far further than necessary and would make it an exceptional case that any individual was prosecuted for crimes committed if the five year time frame has elapsed. 

The Government believes the Bill is justified as to date there have been a limited number of criminal prosecutions against military personnel. If we take Iraq as an example, this is true. However, this fails to take account of the 2017 revelation that the UK paid nearly £22 million in compensation to Iraqi nationals who had brought civil claims against the British military between 2003 and 2017. This figure is a stark demonstration that there were serious failings by the British military in Iraq and that whilst some subsequent claims may have been vexatious, a large number were entirely legitimate. The International Criminal Court (ICC) found as much in 2017 when they concluded that there was a reasonable basis to believe that the UK committed war crimes in Iraq between 2003 and 2009, including murder, torture and sexual violence. Even so, the government has pushed ahead with this Bill in another worrying sign that fulfilling their nationalist agenda is more important than their international obligations. 

There are several troubling aspects of the Bill in its current form, none more so than Article 1(4) which sets out the presumption against prosecution for events which took place more than five years ago. Whilst prosecution is possible after these five years, the reality is that it will likely only occur in very rare circumstances. This creates the unconscionable position of the government legislating to protect individuals who may be guilty of crimes as extreme as murder and torture. This is a position that contrasts standards that are well established in both domestic and international law that cover these crimes. Quite rightly, there is no domestic statute of limitations for the crime of murder in the UK. This is essential to ensure public safety by preventing individuals guilty of this crime having any means of avoiding justice, simply because it happened after a set time has elapsed. Equally, Articles 8(2)(ii) and 8(2)(vii) of the Rome Statute, to which the UK is a party, cover the war crimes of torture and unlawful confinement respectively. The Rome Statute established the International Criminal Court which has the ability to investigate and prosecute the UK if they have not looked into these crimes adequately. This Statute explicitly states that any crime within their jurisdiction is not subject to any statute of limitations.  

Nevertheless, if passed, this Bill could harbour an atmosphere of suppression and cover-ups in order to reach the point where the presumption against prosecution will apply in the UK. This would not be without precedent and both the UK government and the Ministry of Defence are no stranger to being accused of such actions, having been accused of covering up war crimes in Iraq and Afghanistan. In 2019, BBC Panorama and the Sunday Times reported that 11 British detectives had found credible evidence of war crimes in both of the conflicts. This was based on evidence that emerged through the Iraq Historic Allegations Team (IHAT), investigating British war crimes in Iraq, and Operation Northmoor, investigating British war crimes in Afghanistan. One such incident concerned an Iraqi policeman who was shot by a British soldier while leaving his home in Basra. Within 24 hours the commanding officer investigating the incident had concluded that the British soldier was acting in self-defence, citing another British soldier who had seen the Iraqi policeman shoot first. Although, when interviewed by IHAT, the British soldier who was apparently ‘witness’ to the incident stated that the report was inaccurate and rather than being an eyewitness he had just heard one shot, clearly indicating potential wrongdoing on the part of the British soldier. This is just one of a number of reports that contains inconsistencies and have failed to be investigated adequately. The Overseas Operations Bill would only provide further justification for failing to investigate an incident, or even worse, not investigating it at all.

Unfortunately, the UK government was provided with what they believe is justification for their actions, and that they believe necessitated both the Bill and the premature closure of IHAT and Operation Northmoor. The name Paul Shiner was quick from the lips of government ministers doing the media rounds in rebuke to any journalist who questioned the ethics behind the Bill. Paul Shiner is a former human rights solicitor who worked for the now defunct firm Public Interest Lawyers (PIL). The firm passed on around 65% of all cases to IHAT and did initially have some success, notably, the case of Baha Mousa in 2006, in which the Iraqi national was tortured and died in the custody of the British military. One soldier was convicted in this case and the Defence Secretary at the time admitted significant breaches of the European Convention on Human Rights. Despite this early success, it was later found that Shiner paid a middleman in Iraq to find claimants, a practice which was in breach of industry standards. It was also found that the vast majority of the claims brought forward by Shiner contained dishonest allegations or were completely false. These claims cost the British public £30 million and quite rightly led to Shiner being struck off as a solicitor in 2017. 

To the detriment of justice and due process, the actions of Paul Shiner have overshadowed the legitimate cases that had merit and required further investigation. As already noted, his example was used as justification for closing both IHAT and Operation Northmoor. The latter was closed without even completing interviews with Afghan witnesses, an essential part of any case. The legacy of Shiner will also now live on in the form of the Overseas Operations Bill, which will undoubtedly pass through into law. The Bill continues to be sold as a patriotic flag in the sand and a show of support for the British military from the Conservative party. I think it is worth noting that this article is in no way meant to represent anti-military sentiment and in fact I have always been a proponent for the military. However, I believe support for the military and criticism of the Overseas Operations Bill do not have to be mutually exclusive. One simply has to question how patriotic it is to provide war criminals with a chance of escaping justice. 

On the topic of patriotism, I would be remiss if I did not mention two further points, one on the Bill itself, and another on the politics surrounding it. The first draws into question the government’s claim that they are bringing the Bill forward solely to protect members of the British military. In reality, whilst they have been proudly boasting about the protection the Bill would provide, they have been less vocal about the aspect which seeks to limit the ability of military personnel to sue the Government where they have sustained an injury while on operational tour. Whereas the courts currently have the ability to decide whether a claim is out of time, the Overseas Operations Bill would stipulate that if the incident occurred overseas, personal injury claims would need to be brought within six years of the incident, or within 12 months of an individual’s knowledge of the injury, whichever of those two is later. This is likely to have wide ranging implications, particularly as many of the common injuries sustained by military personnel take a long time to surface or incline individuals to avoid support, such as noise-induced hearing loss and post-traumatic stress disorder. It appears that the government has callously included this part into the Bill in the hope that they can limit their liability from claims by military personnel and, unfortunately, this appears to have worked.

The other point worth mentioning is the reaction to the Bill from the opposition benches, particularly the Labour party. In many respects, this article has echoed many of the criticisms that the Labour party expressed. The Shadow Defence Secretary, John Healey, stated that the bill, ‘creates the risk that the very gravest crimes including torture and other war crimes go unpunished’. He specifically labelled the Bill as unconscionably and called for government Ministers to rethink it, yet when it came to voting, the Labour party were whipped to abstain rather than oppose it. This led to the sacking of three junior ministers who had voted against it, along with 15 other Labour rebels. This move appears to be a calculated one that aims to win back the favour of voters lost to the Conservative party in the 2019 General Election. It does appear to align with Keir Starmer’s recent comments on supporting the military, or at least does not directly oppose it. However, as already mentioned, criticism of, or even opposition to, the Overseas Operations Bill and support for the military don’t have to be mutually exclusive. It is simply a situation whereby you clearly need to state the reasons for not supporting the Bill. They certainly made the case for it, only to fall at the last hurdle. Time will tell if this was a miscalculation, but one would hope that a Labour party led by a former human rights lawyer would have known better.

With the Bill now at Committee stage, we can only wait on any potential amendments with anticipation, although the likelihood remains that any amendments will not be enough to substantially change the flawed Bill. The Law Society have expressed deep concerns that the Bill prevents access to justice, but unfortunately that appears to be the exact aim of this government. It increasingly looks like the International Criminal Court will now be the only means of justice for the subjects of British war crimes. 

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