Overseas Operations (Military Personnel and Veterans) Bill

Written evidence submitted by the Reverend Nicholas Mercer, Rector of Bolton Abbey, The Priory Church of St Mary and St Cuthbert, Bolton Abbey, and former Military Lawyer and the Command Legal Adviser for the Iraq War 2003 (OOB05)

Proposed amendments to the Overseas Operations Bill (OOB)

Dear Sirs,

I was a former Military Lawyer and the Command Legal Adviser for the Iraq War 2003 serving with HQ 1st (UK) Armoured Division on Telic 1.

As a result of my first-hand experience of International Humanitarian Law and its application to the battlefield (overseas operations) I made submissions to the JCHR on the OOB on the 28th September 2020. I have been requested by them to submit my proposed amendments to the OOB.

Proposed amendments

1. The OOB risks violating the 1998 Rome Statue thereby causing the transfer of the investigation and trial process of British soldiers to the International Criminal Court (ICC). This can be easily remedied by incorporating Articles 6, 7 and 8 of the 1998 Rome Statute in Schedule 1.

2. The OOB violates the UN Convention against Torture (UNCAT). The Convention does not permit a Statute of Limitations nor the granting of impunity to torturers. Torture should be therefore also be excluded from the OOB and placed in Schedule 1.

3. There is no reason to single out sexual offences in Schedule 1 (excluded offences). It is only mentioned to prevent embarrassment to the PSVIC initiative by Lord Hague and Angelina Jolie

4. Five years Statute of limitations. This should be amended (at least) to five years after the end of the conflict. Both the war in Iraq and Afghanistan went on beyond 5 years. In the case of Baha Mousa, Sir William Gage referred to a "wall of silence" and a short time limit encourages individuals to run down the clock. The Mau Mau took 50 years to come to light.

5. Prevent retrospective application of OOB - there has been mention of applying the OOB retrospectively to cover Iraq and Afghanistan. This would allow the MOD to escape prosecution/civil action for rendition/shoot to kill etc which has not yet been satisfactorily resolved. The OOB should not be retrospective.

I have the following further suggestions for the OOB

Investigations

As far as the investigative process is concerned, I do not feel enough time was given to this issue. It is fine to criticise the investigative process but it can be immensely difficult in a war zone. If there is a death (for example), then the crime scene should, ideally, be secured but this is far from straight forward on an overseas operation. If there is a body for instance, you not only need to preserve the site but also need a SOCO team, morgue and a pathologist at the very least. Imagine for a moment that there are multiple investigations at once (as there were in Iraq)? The issue generally is not competence but manpower. The civilian police (led by the Chief Constable of Hampshire) were asked to assist in Iraq but declined after conducting a risk assessment. There was a critical shortage of manpower.

Recommendation

Formation of TA MP Battalion (to include civilian police and legal advisers) to enhance investigations on overseas operations.

Detention and Interrogation

Provision in the OOB for a UK Judge to oversee detention and interrogation in future overseas operations. 80% of criminal cases submitted to the ICC related to detention and interrogation. The provision of a Judge alone could prevent the vast majority of future cases. The oversight by a civilian Judge was used by the AUS Army on the INTERFET deployment and resulted in a commendation from the UN!

Recommendations:

Appointment of a UK Judge to oversee detention and interrogation on overseas operations

Separate and properly resourced legal/police team for overseas operations to deal with quasi-judicial aspects of detention (Article 5 Tribunals/legal reviews)

Policy

Policy statement in the OOB on UK commitment to International Humanitarian Law (IHL) and Human Rights on overseas operations to include policy to apply the higher standards under IHL including where disputes arise.

Conclusion

I should just add that, in my view, the Bill is fundamentally flawed. It undermines the Rule of Law (including the UN Convention against Torture and the Geneva Conventions) and therefore diminishes the country and our Armed Forces. It undermines battlefield discipline. It will encourage rogue States to follow suit. The OOB will create more rather than less litigation as well as risking the prosecution of British soldiers before the International Criminal Court. It is a deeply retrograde step and not the way to deal with the issues which have arisen.

Nicholas

October 2020