Overseas Operations (Service Personnel and Veterans) Bill

Written evidence submitted by t he International Committee of the Red Cross (ICRC) (OOB04)

About the ICRC

The ICRC is an impartial, neutral and independent organis ation whose exclusively humanitarian mission is to protect the lives and dignity of victims of armed conflict and other situations of violence and to provide them with assistance. The ICRC also endeavours to prevent suffering by promoting and strengthening humanitarian law and universal humanitarian principles.

Established in 1863, the ICRC is at the origin of the Geneva Conventions and the International Red Cross and Red Crescent Movement, which also includes the International Federation of the Red Cross and Red Crescent Societies ( IFRC ) and national societies, including the British Red Cross. It directs and coordinates the international activities conducted by the Movement in armed conflicts and other situations of violence.

Operational in over 90 different countries around the world, the ICRC is well placed to understand the context in which the draft Overseas Operations (Service Personnel and Veterans) Bill operates.

The considerations provided below would be applicable to legislation whether in the UK or elsewhere that concern international humanitarian law (IHL), also known as the law of armed conflict, and are provided as guidance to legislators when considering pieces of law. The ICRC neither supports nor opposes the draft Overseas Operations (Service Personnel and Veterans) Bill.

Observations

1. The repression of serious violations of IHL (war crimes), whatever the nationality of the offender and wherever they are committed, is crucial in ensuring respect for IHL, ending impunity for serious violations of IHL and to the interests of justice.

2. The 1949 Geneva Conventions and the 1977 First Additional Protocol, which govern international armed conflicts, define certain grave breaches (such as wilful killing and torture), which are a specific type of war crime. Each State party must search for persons alleged to have committed, or to have ordered to commit, grave breaches, and bring them before its own courts. It may also extradite such persons. The Conventions specify that the obligation applies regardless of the alleged perpetrators’ nationality. In addition, international law recognises other serious violations of IHL, in both international and non-international armed conflicts (including those taking place overseas). For these, repression obligations of States are similar to those under the grave breaches regime and can be found in customary IHL.

3. The existence of such obligations is highlighted in the preamble of the 1998 Rome Statute of the International Criminal Court (ICC), which "[r]ecall[s] that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes". Among the international crimes in the ICC Statute are the war crimes defined in its Article 8(2), including the grave breaches of the 1949 Geneva Conventions, "[o]ther serious violations of the laws and customs applicable in international armed conflict", "serious violations of article 3 common to the four Geneva Conventions of 12 August 1949" in the case of an armed conflict not of an international character, and "[o]ther serious violations of the laws and customs applicable in armed conflicts not of an international character".

4. The ICRC understands that there are occasions where prosecutorial discretion has developed to address cases where prosecutions are not taken forward. At the international level, Article 53 of the ICC Statute sets out a procedure to follow if, "upon investigation, the Prosecutor concludes that there is not a sufficient basis for a prosecution because … [a] prosecution is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime".

For example, as noted by the ICC Office of the Prosecutor (OTP) in a 2007 policy paper on the interests of justice, "international justice may not be served by the prosecution of a terminally ill defendant or a suspect who has been the subject of abuse amounting to serious human rights violations". However, as also noted by the OTP, "only in exceptional circumstances will the Prosecutor of the ICC conclude that an investigation or a prosecution may not serve the interests of justice". Under the heading "The presumption in favour of investigation or prosecution", the OPT notes that "[m]any developments in the last ten or fifteen years point to a consistent trend imposing a duty on States to prosecute crimes of international concern committed within their jurisdiction".

5. In the view of the ICRC i t is important for accountability for serious violations of IHL across the world that the "interests of justice" or similar standards of prosecutorial discretion at the domestic level are considered narrow ly and are not perceived as a standard that counsels against prosecution. A ll the circumstances , including the interests of victims , should be taken into account in understanding the interests of justice, not only factors related to the alleged perpetrators.

6. P ro tracted conflicts are very much a reality of our world, and any piece of legislation concerning the application of IHL needs to take this into account. We would point to the conflict in Syria which has entered its ninth year. The ICRC has been working in Afghanistan for 32 years, in Somalia for 36 years and in Gaza since 1948. In South Sudan, the ICRC has been permanently active for 40 years. We also have a long history in Lebanon – from the early days of the Palestinian refugee crisis in 1948, through the protracted civil war from 1975–1990 and in various conflicts that have affected the country over many years all the way to recent tragedy in Beirut. The wars of today are not like ones of the past that could be measured in just a few years. Some are based on a single conflict. Others are a series of multiple conflicts. The parties to long-term conflicts typically fragment and mutate over time. Conflict often ebbs and flows unevenly across a country, with varying moments of intensity. A conflict may also be reframed with different goals over time and be internationalised in a variety of ways.

7. As mentioned above, accountability can take time. It can take time due to the difficulties in the collection of evidence and witnesses’ statements – especially overseas – and the work that goes into building a case will often take years to come to fruition, especially if a conflict continues to rage. It is also well-known that victims of war crimes often take many years before they can come forward to bear witness. Victims of international crimes are entitled to justice, even when claims are made against members of the armed forces. Their need for accountability and to see justice done is vital not only to stop continuing cycles of violence, but also go a small way to helping them move on and this cannot have an expiry date.

8. In this respect, and in order to ensure that States are able to answer to future allegations that may take time to come about, the ICRC recommends that where appropriate investigative processes should be done fairly, transparently and effectively at the earliest possible time. This includes the collection of evidence, alongside rigorous documentation of military operations prior to their taking place. The importance of States being able to answer for their actions, to their public, to the victims and importantly to their own service personnel is vital.

9. Investigations demonstrate that a State is adhering to its international obligations – either by clarifying that IHL was not violated or by demonstrating that the State is addressing an alleged violation of the law and taking appropriate corrective action. Showing a genuine effort to comply with the law and rejecting impunity for violations may also, for example, increase trust in the military’s actions. The fact that a State is striving to implement its international legal obligations also promotes the overall credibility of the law. Effective domestic investigations would also preclude, or at least limit, the need to resort to external engagement from international mechanisms, as well as repeated, potentially vexatious, investigations and enquiries.

10. The ICRC is cognisant of the stresses that armed conflict brings upon those involved and that conflict is by its very nature an affront to humanity and will damage the lives of all those it touches. However, these stresses do not excuse serious violations of IHL, and this should be reflected in any law passed. IHL was developed by States with full knowledge of the realities of war, including the conditions and threats experienced during it. IHL accepts harsh realities, which would be unthinkable in peacetime. Where a range of lawful conduct is possible, IHL takes that into account by requiring what is feasible. At the same time, States drew a clear line as to what is never acceptable in armed conflict, no matter the stress, and have developed the repression obligations described above.

11. International criminal law contains well-established provisions that allow for taking into account the circumstances in which an accused acted, setting out specific grounds for excluding criminal responsibility and acknowledging the possibility of mistakes. It is worthy of note that courts are also able to take into account the individual circumstances of a convicted person in their sentencing considerations.

12. This is not to underestimate the stresses that conflict places on the individuals involved. Indeed, the ICRC encourages States to take all necessary measures to provide appropriate mental health support to those affected both during and after conflict.

ICRC Regional Delegation for the UK & Ireland

October 2020