Britannic Impunity: The UK Overseas Operations Bill

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It was praised by Michael Clarke, former Director-General of the Royal United Services Institute, as “clear and entire laudable” – at least up to a point.  The UK Overseas Operations (Service Personnel and Veterans) Bill would “give [British] troops serving overseas much-needed extra protection against fraudulent or frivolous claims against them of criminal behaviour.”  It was also part of a commitment made by the Conservatives that British personnel would be padded with more legal protection against the nasty designs of future litigants.

Veterans minister Johnny Mercer had his lines in order, and they were not particularly convincing.  “This legislation is not about providing an amnesty or putting troops above the law but protecting them from lawyers intent on rewriting history to line their own pockets.”  For Mercer, Britannia is exceptional, a cut above the rest, suggesting, in the lingering wisdom of British imperialism, that they are just a bit more exceptional in hypocrisy than others. 

The Ministry of Defence has been feathering grounds for such changes arguing that unnecessary claims have been made against its personnel.  They include compensation claims for unlawful detention regarding operations in Afghanistan and Iraq.  To this can be added 1,400 judicial review claims for investigations and compensations on the basis that human rights have been violated. Of these, 70 percent assessed by the Iraq Historic Allegations Team were dismissed as having no case to answer.

Instances such as those of solicitor Phil Shiner are cited, that ever zealous creature who was found guilty on five counts of dishonesty by the Solicitor’s Disciplinary Tribunal in February 2017 for tampering with evidence submitted to the Al-Sweady inquiry into allegations of atrocities in Iraq.  Shiner was accused of showing a “clear disregard for the rules” in terms of his actions, having circulated “deliberate and calculated lies” regarding alleged atrocities by British soldiers after the commencement of the Iraq War.

The Bill has a particularly odious provision that serves to impose a five-year time limit on prosecuting crimes that span offences committed by UK personnel while serving in overseas theatres, including a whole range of reprehensible offences, potentially including genocide, crimes against humanity and war crimes.  Operations “dealing with terrorism” and peacekeeping endeavours will also be covered. 

What is being proposed is, in effect, a statute of limitations on grave criminality, a presumption against prosecution. Out with such solemn declarations that genocide is so reprehensible a crime as to defy time itself.  In with more practical, paperwork limitations shielding abuses from legal review.

This would be part of what is described as a “triple lock” against unwanted suits against UK military personnel, the two other features involving a range of considerations prosecutors would have to give “particular weight to” against pursuing a case, and a requirement to obtain the consent of the Attorney General, or Advocate General in Northern Ireland, before commencing any prosecution.  The Bill would also impose a duty on the government to consider derogating from the European Convention on Human Rights regarding significant overseas military operations.

To round it all off, Part II of the Bill also adds a time bar on civil claims against the Ministry of Defence by both survivors of torture and UK soldiers themselves who might have a grievance with their employer.  Claimants will also be barred by the time limit despite being unlawfully detained or impeded in bringing forth their actions.

Should it become law, the Bill will jar with obligations arising under the Geneva Conventions.  The Additional Protocol 1 of 1977 is a stand out on that score.  A range of other international legal instruments also risks being breached, including the Convention Against Torture.  As the legal action charity Reprieve argues in its submission to parliament on the Bill, “This risks effectively decriminalising torture when committed by UK forces overseas more than five years ago.”  The organisation even notes that the proposed law would run counter to a 300-year-old tradition stretching back to the Long Parliament’s Abolition of the Star Chamber in 1640.

The legal establishment is also concerned.  In the sober words of the Law Society, “the proposal to introduce a presumption against prosecution amounts to a quasi-statute of limitations.  Introducing a time limit risks creating impunity for serious crimes and the proposal would be an exception to the normal law for a category of criminal matters that does not exist anywhere else.”

Another submission on the Bill, written by Samuel Beswick of the University of British Columbia, points to a potential violation of the Equality Principle found deep in the immemorial foundations of UK constitutional law, spectral as it is: “that everyone is equally subjected to the ordinary law of the land: that the Crown and government officers do not benefit from more favourable rules than apply to the British people generally.”

Such concerns have not been the preserve of legal bleeding hearts and anti-torture charities.  The Judge Advocate General Jeff Blankett has also expressed deep reservations.  In the middle of the year, he wrote to the Secretary of State for Defence noting “significant misgivings” about a bill “ill-conceived” and dangerous in potentially bringing “the UK armed forces into disrepute”.

As for David Greene, vice president of the Law Society, something more flame-on-the-hill was at stake, and he had little desire for snuffing it out.  “Our armed forces are rightly known across the world for their courage and discipline.  Proposals to prevent the prosecution of alleged serious offences – including murder and torture – by service personnel outside the UK would undermine this well-deserved reputation and could break international law.”

The Bill is a classic, long overdue unmasking of the impunity that is British military power.  More than a Freudian slip, it is an elucidating admission.  In praising the standards of British military professionalism, Greene ignores the country’s thin record in prosecuting its own nationals for crimes committed in foreign theatres.  Clive Baldwin, Senior Legal Adviser to Human Rights Watch, points to the butcher of Amritsar Brigadier-General Reginald Dyer as a case in point.  The killing of hundreds of unarmed men, women and children on April 13, 1919, at Jallianwala Bagh did little to even provoke an apology from the UK.  The most severe rebuke Dyer faced was enforced retirement.  “You might want to rewrite history, but you can’t,” sniffed the High Commissioner to India, Dominic Asquith, during commemoration proceedings held last year.

The deployment of torture in Kenya through the 1950s in response to the Mau Mau revolt against British rule barely stirred the prosecutor’s brief.  In 2013, UK Foreign Secretary William Hague recognised in the Commons “that Kenyans were subject to torture and other forms of ill-treatment at the hands of the colonial administration.”   Sincere regrets were offered, including £19.9m in compensation.  But defiant to the last, Hague insisted that the UK had no legal responsibility for the actions of the colonial administration.  Britannic contempt is deathless.

In focusing on such exceptional instances of manipulation as Shiner, the Bill is a riposte to British responsibility for more recent abuses in such theatres as Iraq.  Despite public inquiries and court rulings finding British forces culpable for abusing detainees, in some cases killing them, few prosecutions have been filed.  The death of Iraqi citizen Baha Mousa in September 2003 in Basra, the result of 93 surface injuries, led to an inquiry and a smattering of Court Martial proceedings. It also saw the first open admission by a British soldier to committing a war crime, though Corporal Donald Payne denied manslaughter and perverting the course of justice.  Six other colleagues from the 1 Queen’s Lancashire Regiment were ultimately acquitted.  Payne was jailed for one year.  A meagre return.

With the passage of this Bill, Prime Minister Boris Johnson’s Global Britain will abandon any pretence to Queensberry rules, or rules of any sort. The jungle is there for the taking, and other powers in the jungle will finally be able to point this out.  Clarke, sounding sorrowful, uses the standard understatement: that this Bill “opens up some intriguing possibilities for our adversaries, who love to claim international legitimacy for their blatantly illegal behaviour.”  It might be a suitable epitaph for British power for long stretches it has been exercised: legitimacy claimed for blatant illegality.

Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge.  He lectures at RMIT University, Melbourne.  Email: bkampmark@gmail.com

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