By: Katherine Grzadkowska, JUNIOR RESEARCH ASSOCIATE, PILPG-NL
On April 29, 2020, the Overseas Operations (Service Personnel and Veterans) Bill (OOB, the Bill) received royal assent and will shortly be adopted into United Kingdom (U.K.) law. The Bill has been touted by the current Conservative government as being crucial in tackling “vexatious claims and [ending] the cycle of re-investigations against [the U.K.’s] Armed Forces.” Nevertheless, the OOB is highly controversial as it may modify the application of international law in the context of British overseas military operations. Although the House of Lords has recently made important amendments, this post will examine some of the remaining concerning aspects of the OOB in light of the U.K.’s international human rights obligations.
Background
The OOB’s was drafted in response to the thousands of “spurious legal claims” against soldiers and the Ministry of Defence (MoD) after the U.K.’s missions in Iraq and Afghanistan in the early 2000s. Many of these cases were “lodged using legal aid with the Iraq Historic Allegations Team (IHAT), which was set up to examine serious accusations” arising from the Iraq missions. While some had merit, the vast majority of these cases were unfounded, frivolous and/or vexatious, and their investigations resulted in a significant drain of the British judiciary and military’s resources.
Although the OOB seeks to limit such claims from arising in the future, the Bill has a number of contentious provisions. The OOB contains a “presumption against prosecution” if litigation is commenced five years after the date on which the criminal conduct is alleged to have occurred. After five years, U.K. prosecutors will only permit criminal proceedings in “exceptional” circumstances. In fact, prosecutions will only be allowed if the applicant receives the Attorney General’s express consent. Furthermore, British prosecutors will have to give special consideration to a number of mitigating circumstances, such as the mental stress endured by service personnel in the context of military duties.
The OOB also amends the Human Rights Act 1998 that allows the U.K. Secretary of State to derogate from the European Convention on Human Rights (ECHR) whenever the U.K. engages in future “significant overseas operations.”
Recent Amendments by the House of Lords
Originally, the OOB applied to nearly all types of claims arising in overseas operations, with the exception of crimes against humanity of a sexual nature, as contemplated under Article 7(1)(g) of the Rome Statute of the International Criminal Court (ICC Statute). This meant that all other violations of international criminal law or war crimes would be subject to the presumption against prosecution after the passage of five years - contrary to the U.K. 's obligations to investigate grave offences under the ICC Statute, the Convention Against Torture, and customary international humanitarian law. The House of Lords recently amended this provision and made torture, war crimes, and other non-sexual crimes against humanity exempt from the application of the OOB making the Bill more inline with the afore mentioned sources of international law.
Remaining Concerns of the Proposed Legislation
While the House of Lords’ amendments were a step in the right direction, the OOB still has a number of concerning aspects in terms of U.K. 's human rights obligations. As a party to the ECHR, the U.K. is bound by rulings of the European Court of Human Rights (ECtHR), which has held that in certain circumstances, the ECHR may apply extraterritorially to overseas military operations. Where the ECHR applies, states parties are obliged to properly investigate human rights violations committed by soldiers stationed overseas and ensure that victims “have an effective remedy before a national authority.” As the OOB currently stands, certain human rights violations and crimes not meeting the severity of those addressed by the House of Lords amendment will be subject to the presumption against prosecution. These aspects of the OOB could incentivize the Ministry of Defence to conduct less stringent or flawed investigations and to even “leave investigations incomplete” in order to take advantage of the presumption against prosecution.
In fact, the drafters of the OOB have included the ability for the U.K. to derogate from the Convention entirely. While Article 15 of the ECHR allows for derogation from its human rights provisions during times “of war or other public emergency threatening the life of the nation,” the OOB’s derogation provision would apply more broadly to any “significant overseas operations” including “peacekeeping […and] operations for dealing with terrorism, civil unrest or serious public disorder.” Although state parties have evoked Article 15 in times of domestic disorder, terrorist threats, and emergencies, no such derogations to the ECHR have been made for modern instances of extraterritorial armed conflict or other kinds of military operations contemplated in the OOB. The fact that the OOB could allow for derogation in nearly any event where U.K. soldiers are deployed overseas may go beyond the narrow derogation as contemplated in the ECHR.
Conclusion
The complex balance between international criminal law, humanitarian law, and human rights law is certainly blurred during times of extraterritorial military activity. Yet, the OOB may have gone too far in favor of “lawfare” at the cost of the U.K.’s international obligations. While the House of Lords has made significant amendments, when it comes into force, the OOB will limit the possibility of holding U.K. troops accountable for their wrongful conduct abroad. As a result, avenues for redress for foreign victims will be greatly restricted.