The Government presented the Overseas Operations (Service Personnel and Veterans) Bill (Bill 117) on 18 March 2020. Second Reading has been scheduled for 23 September 2020.
The main purpose of the Bill is to provide greater legal protections to Armed Forces personnel and veterans serving on military operations overseas.
Framework of law governing armed conflicts
There is a myriad of law that oversees the conduct of military personnel on operations overseas. Personnel must act in accordance with UK law, both Service and civilian, international humanitarian law (also known as the Laws of Armed Conflict) and international human rights law.
As such Armed Forces personnel are not immune from prosecution for offences committed whilst serving on operations overseas.
Over the last two decades there has been an increasing tension between the body of international humanitarian law that has traditionally governed armed conflicts, and human rights law. The latter has been increasingly applied in armed conflict situations as a result of a number of key rulings which extended the territorial application of the European Convention on Human Rights (ECHR). The ECHR has direct effect in the UK as a result of the Human Rights Act 1998.
The Government has stated on many occasions its assumption that international humanitarian law takes precedence where the two bodies of law overlap; a position which is now being challenged.
Investigation of alleged offences by British Service personnel in Iraq and Afghanistan
Al-Sweady Inquiry
The Al-Sweady Inquiry was launched by the Labour Government in 2009 following a judicial review brought by the uncle of Hamid Al-Sweady, claiming that his nephew had been unlawfully killed while in the custody of British troops. Other linked claims related to detention and mistreatment by British troops.
The Report of the inquiry was published in December 2014. It concluded that certain aspects of the way in which the detainees were treated amounted to actual or possible ill-treatment. However, the vast majority of the allegations were found to be wholly without merit or justification, and were the result of deliberate and calculated lies, or inappropriate and reckless speculation.
A solicitor who was involved in bringing a large proportion of the claims, Phil Shiner of Public Interest Lawyers, was subsequently struck off in 2017 for professional misconduct.
Iraq Historic Allegations Team (IHAT)
Numerous legal claims also arose in relation to actions of British service personnel in Iraq between 2003-2009 more broadly.
In 2010 the Government announced the establishment of the Iraq Historic Allegations Team (IHAT) to sift through and investigate allegations and refer them for prosecution, where appropriate. A subsequent decision by the European Court of Human Rights (ECtHR) in 2011 (Al Skeini) determined that the UK had a duty under the Convention to investigate allegations of death and ill treatment, and IHAT therefore was intended to fulfil this function.
Around 3,400 allegations of unlawful killings and ill treatment were received by IHAT. In approximately 70% of cases it was determined that there was not a case to answer or it was considered not proportionate to conduct a full investigation.
The decision in 2017 to strike off Phil Shiner allowed IHAT to dismiss many of the false allegations he submitted. The Government took the subsequent decision to close IHAT by the summer of 2017.
Service Police Legacy Investigations (SPLI)
Although IHAT was closed down, the legal obligation on the Government to investigate allegations of wrongdoing remained.
In July 2017 the remaining Iraq legacy investigations were therefore taken over by the Service Police. As of 30 June 2020, the SPLI had closed, or was in the process of closing, 1,213 allegations, either on the grounds of proportionality or because of a lack of evidence.
Iraq Fatalities Investigations (IFI)
In 2013 the High Court determined that a publicly accountable investigation into the circumstances of certain deaths, with participation from the families of the deceased, was required by Article 2 of the ECHR. The High Court indicated that the requirement could be met by holding inquisitorial inquiries modelled on coronial inquests.
Iraq Fatalities Investigations was subsequently established. The IFI does not determine civil or criminal liability. Cases are referred to it after it has been decided that there is no realistic prospect of a conviction. The investigations serve a purpose similar to a coronial inquest by providing the families of the deceased and the wider public with as much information as possible about the circumstances of the death.
The IFI has concluded seven cases to date. It has one ongoing case: an investigation into the death of Saeed Radhi Shabram Wawi Al-Bazooni in May 2003.
Operation Northmoor
In 2014 an independent Royal Military Police led investigation (Operation Northmoor) was launched into allegations relating to UK detention operations in Afghanistan between 2005 and 2013.
In total 675 allegations were received by the RMP from 159 individuals. By July 2017 investigations into more than 90% of those allegations had been discontinued because there “was no evidence of criminal or disciplinary offence”.
In July 2019 remaining investigations conducted under Operation Northmoor were brought to an end. No case investigated as part of Operation Northmoor was referred for prosecution by the independent Service Prosecuting Authority.
Government commitment to address ‘lawfare’
In response to the legal rulings extending the application of the ECHR, the outcome of the Al Sweady inquiry and the closing down of IHAT, successive Conservative Governments have indicated their intention to address the increasing influence of ‘lawfare’.
Proposals under consideration have included replacing the Human Rights Act and derogating from the ECHR in future conflicts. In July 2019 the Government published a consultation paper which set out a number of proposals including a statutory presumption against prosecution for alleged offences committed on overseas operations more than 10 years ago and a time limit on civil litigation claims for personal injury/death. The consultation paper did not examine derogation from the ECHR which the Government had already committed to.
Upon re-election in December 2019, Boris Johnson’s Conservative party promised to introduce legislation “to tackle vexatious legal claims that undermine our Armed Forces” within 100 days.
Informed by the submissions to the earlier consultation paper, and the 2016 commitment to the presumption to derogate from the ECHR, the Government subsequently published legislation on 18 March 2020.
Main provisions of the Overseas Operations Bill
The main purpose of the Bill is to provide greater legal protections to Armed Forces personnel and veterans serving on military operations overseas. It would not provide blanket immunity from prosecution for offences committed during overseas operations but seeks to raise the threshold for the prosecution of alleged offences.
There are three main facets to the Bill:
- It would create what has been termed a “triple lock”, to give personnel and veterans greater certainty that the pressures placed upon them during overseas operations would be taken into account when prosecution decisions for alleged historical offences are made. That lock would consist of: a presumption against prosecution for alleged offences committed more than five years ago; a requirement for prosecutors to give weight to certain matters when reaching decisions in such cases; a requirement to obtain the consent of the Attorney General, or the Advocate General in Northern Ireland, before any prosecution can proceed.
- It would introduce time limits on bringing civil claims in connection with overseas operations.
- It would place a duty on the Government to consider derogating from the European Convention on Human Rights in relation to significant overseas military operations.
The Bill would not apply to operations in the United Kingdom, including events that occurred in Northern Ireland during The Troubles. The Government has made clear its intention to introduce separate legislation to address legacy issues in Northern Ireland.
The provisions on presumption against prosecution and the limitations on bringing civil claims could not be applied retrospectively to legal proceedings that are already underway.
The Government has stated its belief that the Bill’s provisions are consistent with the UK’s obligations under domestic and international law and that “The measures in the Bill are a proportionate solution to the problem, and strike an appropriate balance between victims’ rights and access to justice on the one hand, and fairness to those who defend this country on the other”.
Reactions
Support for the Bill has been mixed. Longstanding campaigners for greater legal protection for veterans have largely welcomed its proposals. Others, however, have expressed concern that it will place Armed Forces personnel seemingly above the law and contravene the UK’s international legal obligations. Specifically, the applicability of the Bill to war crimes and crimes against humanity has provoked widespread concern that the legislation, as it stands, could leave Armed Forces personnel open to prosecution by the International Criminal Court.
There has been concern that the introduction of a 6-year time limit for bringing civil claims, which would apply to service personnel and veterans, will breach the Armed Forces Covenant.
The exclusion of operations relating to Northern Ireland from the Bill’s provisions has also drawn criticism.