The Overseas Operations Bill: A Slippery Slope to Injustice

The House of Lords is currently considering the Overseas Operations (Service Personnel and Veterans) Bill. If passed, it will create stricter statutory time limitations on the prosecution of members of the armed forces. Whilst the government states that the bill will be compatible with the European Convention on Human Rights (ECHR), military figures, charities and MPs are concerned that it could undermine international conventions and the armed forces covenant.

The bill concerns unlawful conduct during overseas deployment. Sexual offences are exempt from the five-year limitation, but torture and other human rights abuses are not. By no means are the government looking to decriminalise torture; the foremost aim is to address ‘lawfare’ and unreasonable reinvestigation of armed conflict.

Deployment of UK soldiers to Iraq (2003-2009) and Afghanistan (2002-2017) led to an increase of legal claims concerning non-compliance with ECHR. At first glance, this suggests there are grounds for over-litigation arguments; every Iraq war crimes case (bar one) has been dismissed. However, a report from UN Rapporteurs and independent experts expressed concerns about adopting a presumption against prosecution:

“A 2018 parliamentary report found evidence that British Defence personnel had been involved in enforced disappearances, torture and ill-treatment of suspects as part of the U.S. detention and rendition programme. It also said the military had been intentionally negligent in investigating complaints of torture and ill-treatment during overseas deployments.”

The bill creates three main hurdles. First, after five years have passed since the alleged unlawful conduct, prosecutions should only take place in exceptional circumstances. There will also be an additional weight attached to defences (e.g. mental health problems), in excess of the normal requirements of criminal trials. Finally, the Attorney General will have the ability to veto a prosecution, and the Secretary of State will have a duty to derogate from the ECHR where deemed necessary.

The latter point has generated a legal problem of international proportions. Currently, it is unclear whether the ECHR should be strictly applied to extra-territorial conflict. The Overseas Operations Bill creates a duty to derogate from human rights obligations when critically incompatible with armed conflict. This could be construed to implicitly accept extra-territorial adherence to ECHR, unless extreme circumstances apply.

As a result, future claimants could demand full adherence with ECHR guidelines in cases concerning deployment overseas. At the same time, derogation could make it harder for the UK to secure convention rights in extra-territorial disputes. Although the provisions afford greater flexibility, they cause patent uncertainty in both domestic and international law.

The Ministry of Defence (MoD) has so far framed the bill as evidence of their commitment to members of the armed forces:

“[We] believe the best way to honour our personnel is to legislate to help tackle vexatious claims and the cycle of reinvestigations against them.”

However, John Healey MP (Labour) has suggested that those suffering from hearing loss, PTSD and other conditions as a result of overseas deployment will be the ‘main losers’. There have been 25,000 civil cases against the MoD by injured service-men/women and their families in the last 16 years. Their legal rights are protected by the armed forces covenant. This is the promise of government ministers to treat serving members of the armed forces fairly and equally to their civilian counterparts.

Charles Byrne, Director General of the Royal British Legion shared his concerns about the Overseas Operations Bill during the Commons committee stages. He warned that ‘restricting the ability of armed forces personnel to bring a civil claim against their employer’ would be an explicit breach of the covenant. Mental health conditions and physical impairments can take years to adjust to, much less to litigate. Additionally, injured service-men/women may not be aware of the legal paths available to them.

The Limitation Act 1980 s.33 enables claims to proceed in exceptional circumstances, outside of the varying time limits attached to civil claims. The Overseas Operations Bill will erode this discretion in claims against the MoD; as such, military personnel will not be treated equally to civilian counterparts. Furthermore, the Attorney General will be handed greater powers to prosecute or implement a ministerial veto. The UN report, referenced above, described these provisions as “an alarming regression from the independence of the judiciary and the longstanding democratic principle of separation of powers”.

The government’s emphasis on ‘lawfare’ is problematic. It favours a time-limit based presumption against prosecution, over the armed forces covenant and the condemnation of human rights abuses. Military personnel could plausibly face trial in the Hague if our justice system cannot prosecute their alleged war crimes. Furthermore, it may expose the UK to greater scrutiny under international law. By enacting statutory limitations and undermining judicial independence, the UK government could be conceived to be sanctioning its own form of ‘lawfare’.

In historical colonial conflicts, the UK failed to prosecute war crimes and human rights violations. A lack of accountability persists. In the 21st century, the government has “directly interfered to prevent UK nationals being prosecuted, shutting down investigations into alleged crimes committed by forces in Iraq and Afghanistan”.

The Overseas Operations Bill, if passed, will clash with international conventions and will weaken the law’s condemnation of torture. At the same time, the ability of servicemen and women to take legal action against their employer will be unfairly restricted. Nadia O’Mara from Liberty, the UK’s largest civil liberties organisation, encapsulated opposition to the bill as a fight for fundamental rights:

“No one is above the law – especially not those who hold the reins of power, whether that’s the Government or the Armed Forces”.