Pardons versus failure to prosecute
One of the many outrages perpetrated by Donald Trump in the waning of his Presidency was granting a pardon to four private military contractors for their role in the Nisour Square massacre. Those military contractors had opened fire indiscriminately, killing 14 Iraqi civilians, including two children.
As with many of Trump’s assaults on the Rule of Law, the thought was that this kind of abuse could not happen in the UK. But certainty over our moral high ground will be short-lived if Parliament passes the Overseas Operations (Service Personnel and Veterans) Bill – a Bill whose precise aim is to make it much harder to prosecute British military personnel for abuses (including murder) carried out overseas. The Bill reaches Second Reading this week in the House of Lords.
Hurdles to prosecution under the Bill
The Bill introduces three substantial hurdles to the prosecution of British soldiers if the incident took place overseas more than five years ago. The first is that prosecutions must only be “exceptional circumstances”. The second is that the consent of the Attorney General is required. The third is that, in contemplating prosecutions, prosecutors must place particular weight on a list of exculpatory factors, but with the absence of a list of factors tending in favour of prosecution.
These hurdles are all expressly designed to make it much harder to prosecute soldiers for crimes committed overseas more than 5 years ago. At least in the Nisour Square case there was (eventually) a prosecution. If this Bill passes, then the chances of justice for historic military abuses in Iraq or Afghanistan will be virtually nil. If it is wrong to pardon US military contractors for murder, then what makes it right to shield UK military personnel from prosecution for murder?
The argument put forward by Government is that these protections are necessary to protect soldiers from legal jeopardy long after the event, and to end the cycle of reinvestigations of those events. There is a strong argument in terms of legal certainty, which means that if a crime has been committed, it should be promptly investigated and where there is sufficient evidence, the perpetrator be prosecuted. There is a clear problem here, but the solution is proper investigations, not impunity for the perpetrators. As the Joint Committee on Human Rights found in its consideration of the Bill
there is little to no evidence that people are being prosecuted when they should not or that cases with no case to answer are being allowed to progress. Instead, we found that the real problem is that investigations into incidents have been inadequate, insufficiently resourced, insufficiently independent and not done in a timely manner.
Recent investigations into war crimes: UK and Australia
The factual basis of the Government’s argument of soldiers being unfairly persecuted for crimes has been rather undermined by two recent reports.
November 2020 saw the release of the Brereton Report in Australia. This Report set out in great (albeit redacted) detail war crimes committed by Australian soldiers in Afghanistan between 2005 and 2016. The Report found there were 39 separate unlawful killings by these soldiers and separate cases of cruel treatment. According to the summary by the Inspector-General of the Australian Defence Force “None of these crimes were committed in the heat of battle. The alleged victims were non-combatants or no longer combatants”. The report shows sickening war crimes, carried out not by Taliban fighters, but by Australian soldiers. No soldiers have been prosecuted for these offences.
December 2020 saw the conclusion of an investigation by Fatou Bensouda, prosecutor at the International Criminal Court, into the conduct of British troops in Iraq between 2003 and 2009. She ultimately decided not to prosecute UK troops on the basis that they could be prosecuted in the UK. However, her findings were damming.
The preliminary examination has found that there is a reasonable basis to believe that various forms of abuse were committed by members of UK armed forces against Iraqi civilians in detention. In particular, as set out below, there is a reasonable basis to believe that … members of UK armed forces in Iraq committed the war crime of wilful killing/murder … the war crime of torture and inhuman/cruel treatment … and the war crime of outrages upon personal dignity … war crime of rape and/or other forms of sexual violence
It is hard to argue that UK troops are so different from Australian troops that their atrocities couldn’t be committed by our troops. That argument becomes impossible when faced with the ICC evidence, the inquiry into the death in military custody in Iraq of Baha Mousa and the conviction for manslaughter in Afghanistan of Marine A.
Although it may be rare, there is clear evidence of abuse by British soldiers. This Bill seeks to deny the reality of that abuse and make it nearly impossible to prosecute where the events occurred more than five years ago.
The Rule of Law
The Rule of Law includes the principle of legality – that we are all subject to the law. Dicey stated that “here every man, whatever be his rank or condition, is subject to the ordinary law of the realm”. This Bill makes the actual rank of a person a ground for exempting them from the law.
The Rule of Law requires access to justice. In this context it requires that victims ought to be able to vindicate their rights in court, or as Magna Carta put it “We will sell to no man, we will not deny or defer to any man either Justice or Right”. This Bill does not deny outright access to justice for victims, but it does make it substantially harder for them to access it.
There are two exceptions to the protections this Bill offers to military personnel. The first is if the crime is a sexual offence. Although it is to be welcomed that there is no additional protection to those accused of rape, it is hard to see why there is additional protection to those accused of murder and torture. The second exception is if the victims are themselves British military personnel. Again, it is to be welcomed that soldiers won’t be denied access to justice if they are victims, but it is hard to see why foreign or non-military victims are to be denied their rights.
The Rule of Law principle of equality before the law has a particular manifestation in military law. Halsbury’s Laws describes this as follows:
It is one of the cardinal features of the law of England that a person does not, by enlisting in . . . the armed forces, thereby cease to be a citizen, so as to deprive him of his rights or exempt him from his liabilities under the ordinary law of the land.
As it is sometimes more prosaically put, British soldiers are “citizens in uniform”. This Bill deviates from this fundamental principle and provides that there would be two different laws, one for ordinary citizens and one for soldiers.
No nation likes to admit that, sometimes, its citizens and troops do not live up to the high standards expected of them. But we do not protect British troops and British values by hiding from the truth or acting with impunity. The Trumpian approach should not be our approach, and the Overseas Operations Bill should not become law.
A more detailed report on this Bill has been prepared by the Bingham Centre for the Rule of Law as part of its Monitoring of Legislation project, and is available here.
Dr Ronan Cormacain is Senior Research Fellow at the Bingham Centre for the Rule of Law
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