Overseas Operations (Service Personnel and Veterans) Bill

Written evidence submitted by David Lloyd Roberts, MBE, LLM and Charlotte Harford, PhD (OOB01)

Executive Summary

· The presumption against prosecution for alleged violations of the laws of armed conflict contained in this Bill risks putting the United Kingdom in breach of the Geneva Conventions.

· The Bill would do nothing to remove the risk of a member of the British armed forces accused of war crimes being prosecuted many years after the alleged events by the International Criminal Court (ICC), or, in the case of an allegation of torture, by any state party to the UN Convention Against Torture.

· The Bill could increase the likelihood of proceedings being launched against British service personnel and/or the British government by the ICC Prosecutor in relation to allegations of war crimes.

· The stated main purpose of the Bill (to provide greater legal protections to Armed Forces personnel and veterans serving on military operations overseas [1] ) would be better served by:

o prompt and effective investigation of war crimes allegations by national authorities;

o regular, comprehensive and efficient training of members of the armed forces on compliance with the laws of armed conflict;

o the timely provision of competent legal representation to members of the armed forces accused of war crimes before any tribunal.

Introduction

David Lloyd Roberts MBE, LLM is a retired Lt Colonel of the British Army. He holds a Masters degree in International Human Rights Law from Essex University. On retirement from the Army he served for 16 years with the International Committee of the Red Cross as their Security Delegate and Instructor to Armed Forces in the Law of Armed Conflict.

Charlotte Harford is a former British diplomat and former delegate with the International Committee of the Red Cross, with a PhD in the international law of armed conflict from the London School of Economics.

Both writers are submitting this paper in a personal capacity.

Obligations under the Geneva Conventions to search for and prosecute those accused of war crimes

1. The United Kingdom is obliged under international law to prosecute those accused of grave breaches of the Geneva Conventions of 12 August 1949, such as wilful killing or torture. Before specifying what is meant by a ‘grave breach’ of the separate conventions, each of the four Geneva Conventions contains a common provision obliging states parties to:

…search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. [2]

There is nothing in the Geneva Conventions to suggest that such action need not be taken after the passage of a certain number of years. Nor is there anything in the Conventions to suggest that prosecution may not be appropriate if it can be shown that the person alleged to have committed a grave breach had been suffering from the stresses of combat or of command responsibility. Clauses 1, 2 and 3 of Part 1 of the Bill would therefore seem to be in stark conflict with the spirit of the Geneva Conventions. Furthermore, if reliance on these clauses were to result in a failure by the United Kingdom to search for and prosecute a member of its armed forces credibly accused of a grave breach of one of the Geneva Conventions, this could be considered by another High Contracting Party as a breach by the United Kingdom of its obligations under the Geneva Conventions. Any such finding could be highly damaging to this country’s international reputation.

Jurisdiction of the International Criminal Court over British service personnel

2. The main aim of the Overseas Operations Bill has been stated as being:

to provide greater legal protections to Armed Forces personnel and veterans serving on military operations overseas. [3]

If enacted, the Bill might indeed make it less likely that Armed Forces personnel and veterans would be brought before a British court in relation to conduct during overseas operations. It would, however, do nothing to decrease the likelihood of their being prosecuted by the International Criminal Court (ICC). Under the statute of the ICC, to which the United Kingdom is party, not only may another state party to the ICC statute "refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes" [4] but the Prosecutor "may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court." [5] Similarly, the Bill would not be able to prevent a member of the British Armed Forces from being prosecuted for torture many years after an alleged event if such a person were found on the territory of another state party to the United Nations Convention Against Torture. [6]

Primacy of national courts under the ICC statute

3. So long as it is clear that a state is able and willing genuinely to investigate and prosecute members of its own armed forces faced with evidence of war crimes, the ICC will not seek to get involved. Under article 17 of the ICC statute, proceedings by the Court are to be considered inadmissible if

(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;

(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute

National courts thus have ‘primacy’ and can forestall action by the ICC. Only if the ICC takes the view that the state which normally would have jurisdiction is unwilling or unable to conduct a genuine investigation or prosecution will it initiate proceedings. The Bill renders this issue moot. In its 2019 report, the Office of the ICC Prosecutor indicated that were legislation to be introduced in the United Kingdom containing a statutory presumption against the prosecution of British service personnel for alleged offences committed overseas more than ten years previously, it would be necessary to consider:

the potential impact on the ability of the UK authorities to investigate and/or prosecute crimes allegedly committed by members of the British armed forces in Iraq, against the standards of inactivity and genuineness set out in article 17 of the Statute. [7]

The Office of the Prosecutor further indicated that it would, in 2020, "seek to ascertain whether the allegations of a lack of genuineness can be substantiated in order to enable it to come to a final determination with respect to the preliminary examination as early as practically possible."

4. Crimes within the jurisdiction of the ICC are not subject to any statute of limitations. [8] Furthermore, the Court is empowered to require the arrest and surrender of persons on the territory of any of the states party to the statute. [9] So, paradoxically, the effect of the Bill, if enacted, may be to make it more, not less, likely that British service personnel thought to have been involved in war crimes will face legal proceedings long after the events in question – but in a foreign court.

Support for British service personnel in a complex legal environment

5. The implicit aim behind this Bill (of sparing British service personnel from the undeserved stress of vexatious claims and repeated investigations) is clearly worthy. But it is not clear that the Bill will in fact be able to achieve this aim. We are not a legal island, and legislation by the British Parliament will not make international law go away. Equally, while it is clear that there are a number of British veterans who have felt abandoned and unsupported as soon as they have become involved with the courts, this Bill will do little if anything to improve the situation. On the contrary, it risks exposing serving military personnel and veterans to being arrested when travelling abroad, and to having to defend themselves in proceedings before an international tribunal capable of drawing on a mass of jurisprudence relating to modern war crimes. Some of this jurisprudence suggests that in determining culpability in international proceedings, limited account may be taken of the stresses a defendant in a war crimes trial may have faced. [10]

6. There could be three ways the underlying aims of the draft legislation could be better served than by this Bill: more rigorous investigations of war crimes allegations; regular, practical training on compliance with the law of armed conflict for all members of the armed forces; and the provision to members of the armed forces facing legal proceedings of timely and appropriate legal assistance and pastoral support.

The need for allegations of war crimes to be investigated promptly and effectively

7. Prompt and rigorous investigation of allegations of war crimes committed by British servicemen will reduce the risk of investigations being continually reopened and will allow allegations which are clearly without foundation or legal merit to be nipped in the bud. Investigations which are properly conducted by the national authorities first time round, with the full co-operation and support of commanders and witnesses (and the Attorney General as necessary), will increase the likelihood of well-founded decisions being made either to prosecute, or to dismiss allegations, without undue delay, and with minimal risk of a case being re-opened.

The need for regular and effective training on the Law of Armed Conflict

8. Regular and effective training for the armed forces on compliance with the law of armed conflict can reduce the risk of situations arising in which allegations of war crimes are levelled at British service personnel serving overseas. There is no need for military personnel to be given a comprehensive legal education. However, if knowledge of and consistent respect for the following ten principles, at least, can be instilled in all members of the armed forces, they should have little reason to fear prosecution:

1. Torture is prohibited in all circumstances. [11]

2. Summary executions are prohibited. [12]

3. Those hors de combat may not be attacked [13] .

4. Only military objectives may be deliberately attacked. [14]

5. Civilians may not be deliberately attacked unless they are taking a direct part in hostilities. [15]

6. Buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law may not be deliberately attacked. [16]

7. Combatant adversaries may not be treacherously killed or wounded. [17]

8. The wounded and sick must be collected and cared for. [18]

9. Prisoners of war should be evacuated from the combat zone as soon as possible. [19]

10. The dead may not be despoiled or mutilated. [20]

Effective training on the law of armed conflict is likely to take the form not of the testing of theoretical knowledge, but of presenting members of the armed forces on a regular basis with hypothetical (but realistic) scenarios in which to practise thinking how military operations in a particular context might be conducted effectively in compliance with the above principles.

Legal advice and pastoral support for service personnel and veterans

9. A serving or former member of the Armed Forces who has tried in good faith to comply with the basic principles of the international law of armed conflict should have little to fear from an investigation. But it is clearly important that any member of the armed forces involved in legal proceedings as a consequence of their military service should be provided with adequate legal advice and pastoral support at the earliest possible stage, at public expense if needs be.

Recommendations

10. This paper recommends:

a. That allegations of war crimes, and in particular allegations of grave breaches of the Geneva Conventions by British service personnel should be promptly and effectively investigated with the full support and co-operation of commanders, the Ministry of Defence and the Attorney General as appropriate with a view to prosecutions being brought in the event of the allegations appearing to be well founded.

b. That the Ministry of Defence should ensure that all members of the armed forces receive regular and appropriate training on compliance with the international law of armed conflict.

c. That the Ministry of Defence should ensure that the services of appropriately qualified and experienced defence lawyers and appropriate pastoral support are made available at an early stage to any member of the British armed forces accused of war crimes.

d. That consideration be given to putting the Overseas Operations Bill on hold.

October 2020


[1] Overseas Operations (Service Personnel and Veterans) Bill 2019-21, House of Commons Briefing Paper Number 8983

[2] Geneva Convention I, article 49, Geneva Convention II, article 50, Geneva Convention III, article 129, Geneva Convention IV, article 147 https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/vwTreaties1949.xsp

[3] Overseas Operations (Service Personnel and Veterans) Bill 2019-21, House of Commons Briefing Paper Number 8983

[4] Rome Statute of the International Criminal Court, article 14 https://www.icc-cpi.int/resource-library

[4]

[5] Rome Statute of the International Criminal Court, article 15

[6] See UN Convention Against Torture provisions on universal jurisdiction (articles 5, 6 and 7) https://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx

[7] International Criminal Court, Report on Preliminary Examination Activities 2019

[7] https://www.icc-cpi.int/Pages/item.aspx?name=191205-rep-otp-PE

[8] Rome Statute of the International Criminal Court, article 29.

[9] Rome Statute of the International Criminal Court, article 89

[10] See for example Prosecutor v Drazen Erdemovic (IT-96-22) in which a Croat soldier who participated in an execution squad was convicted of murder, despite the court having accepted his claim that he believed he would have been killed had he refused to do so. This was considered relevant to the mitigation of the defendant’s sentence, but not to the verdict.

[11] See Rome Statute on the International Criminal Court, article 8.2 (a) (ii) and 8.2 (c) (i). See also Article 3 common to the four Geneva Conventions of 12 August 1949.

[12] See Rome Statute on the International Criminal Court, article 8.2 (a) (i) and 8.2 (c) (iv). See also Article 3 common to the four Geneva Conventions of 12 August 1949.

[13] See Rome Statute on the International Criminal Court, article 8.2 (b) (vii)

[14] See Rome Statute on the International Criminal Court, article 8.2 (b) (ii)

[15] See Rome Statute on the International Criminal Court, article 8.2 (b) (i)

[16] See Rome Statute on the International Criminal Court, article 8.2 (e) (ii)

[17] See Rome Statute on the International Criminal Court, article 8.2 (e) (ix)

[18] See Article 3 common to the four Geneva Conventions of 12 August 1949

[19] See Geneva Convention III, article 19

[20] See Geneva Convention I, article 15, Rome Statute on the International Criminal Court, article 8.2 (c) (ii)

[20]

 

Prepared 6th October 2020