The Socialist Campaign Group broke Labour’s whip on the 2nd reading of the Overseas Operations (Service Personnel and Veterans) Bill; the instruction was to abstain. The highlight reason for voting against the bill is that it decriminalises or more accurately makes it more difficult for prosecutions for criminal events undertaken by members of the armed forces while on active service overseas including allegations of torture, although not sexual assaults. Notoriously, three members of Labour’s front bench were dismissed from these positions for voting against it. It would seem pretty black and white, but the decision is complicated by the 2nd Reading/3rd Reading issue, although with a Tory majority of 80, hoping for amendments in Committee is a long shot, but perhaps not in the Lords. This is further complicated by disagreements over the impact of text of the Bill and the intersection of International Humanitarian Law and International Human Rights Law; the former is about the conduct of war, the latter about protecting citizens and non-citizens from over mighty states.

The Bill proposes a so-called triple lock, establishing a presumption to not prosecute such crimes if over five years old, that the prosecutors take into account operational pressures when making the decision to prosecute or not, and that the Attorney General (or the Northern Irish equivalent) have final agreement to any prosecution. The bill proposes a deadline for civil suits may impact soldiers suing the MoD, which some consider a breach of the armed services covenant. The Bill furthermore mandates the Govt. to consider a derogation on the ECHR on the commencement of any overseas operation.

Labour’s case for abstention was made by John Healey, whose speech is on parliamentlive.tv; the case is more complex than one might think, made more so by the time limit on civil claims, and the armed services covenant and by the fact that even if the UK refuses to investigate or prosecute, claims can be taken to the International Criminal Court, something that becomes more likely under this law. Another point made by Healey is that because the triple lock only relates to prosecutions and the future it fails to deal with investigations, vexatious claims and double jeopardy; the fact is that intimidation and fear for the future is caused as much by the investigations as by the fact of prosecution. It maybe that since double jeopardy only applies to courts, that it is difficult to record decisions not to prosecute and the UK has a duty to investigate allegations of war crimes and torture.

Elements of the complexity is created by the fact that there are two bodies of Law, with two supra-national court structures; Humanitarian Law, is enforced by the International Criminal Court and International Human Rights Law, which in the case of the UK, is enforced by the European Court of Human Rights and the Human Rights Act. A major part of international humanitarian law is contained in the four Geneva Conventions of 1949. Nearly every State in the world has agreed to be bound by them. International Human Right Law is intended for use during peacetime and it’s application to armed conflict is controversial. Rather than attempting to balance the necessity of military action with the principles of humanity during an armed conflict, Human Rights Law is intended to protect the individual from oppressive state power in domestic circumstances during times of peace. When applied to recent conflicts, often involving state actors and insurgent forces this may complicate and frustrate military operations by applying higher standards to state actors. Of course, there is further complexity in that operations can transform from military action to support of a civil power when the arguments to apply human rights law is stronger. Both bodies of law regulate force and detention, and both bodies of law prohibit torture. They address some common concepts, but have different approaches which are not always complementary. international humanitarian law is meant to be given priority over International Human Rights Law in armed conflict, even by human rights bodies hearing cases brought under International Human Rights Law.

This all means that even if the UK passes the Bill as it stands, military personnel may still be investigated multiple times and even if cleared by the investigators may still be prosecuted under the International Criminal Court.

Strangely, it was the re-introduction of politicians into the decision to prosecute i.e. the Attorney General, that started me on reading up and writing this blog. The segregation of duties within the decision to investigate and prosecute is an important human rights defence against a potentially oppressive police and political interference; the coalition government changed the law to exclude the then Home Secretary from extradition decisions as a result of the McKinnon case, a precedent which will apply to Assange when the courts decide that he has a criminal case to answer in the USA. Is the AG sufficiently independent and beholden to the law? I have written elsewhere about the need to separate legal advice from the compliance function but usually applied this to company or public sector entities. Removing the Home Secretary and yet inserting the AG seems to be an attempt to swing both decisions, they are either best taken by independent advisors/officials or not.


Footnotes

The House of Commons Library produced a paper, hosted on a page called Overseas Operations (Service Personnel and Veterans) Bill, with a briefing and link to the text, outlining a series of investigations including a portfolio of cases that led to the barring of the solicitor handling the cases. It would seem that vexatious litigation is a problem. As a result of the Al-Sweady enquiry, which reported in public, Lawyers were struck of the list and otherwise sanctioned.

Some comrades, are circulating this paper and motion for consideration by CLPs, the motion calls for the rectification of the financial compensation made to service personnel killed or injured and their family survivors, supports the derogation from the ECHR for overseas combat operations, and opposes the presumption against prosecution, it argues that should the Bill not be clarified to ensure that torture and war crimes, like sexual assault, be excluded from the triple lock it should be opposed. The issue of war pensions/compensation its intersection with the commitments of the armed forces covenant deserve a separate article.

I looked at this , “The relationship between international humanitarian law and human rights law from the perspective of a human rights treaty body” by Francoise J. Hampson, published by the Red Cross, who argues that international humanitarian law is the lex specialis. I also looked at the HoC Briefing, International Humanitarian Law: a primer and an ex Northern Ireland AG comments here, who argues that the text of the Bill does not legalise torture or other war crimes; his quotes are supplemented by quotes from David Davis MP & Shami Chakrabarthi who take a different line. It shouldn’t be a surprise that blog focused on Northern Ireland has a long commentary on a Bill of this nature despite the fact that this Bill excludes allegations of crime in Northern Ireland.

The UK & War Crimes
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