Legislative Scrutiny: The Overseas Operations (Service Personnel and Veterans) Bill Contents

2The adequacy of Ministry of Defence investigations

The investigations, litigation and inquiries

22.There have been a number of investigations and inquiries into incidents arising from the UK’s involvement in the conflicts in Iraq and Afghanistan, including some allegations of offences committed by British serving personnel. Some of these cases have exposed wrongdoing such as mistreatment of detainees, unlawful detention and breaches of the prohibition on torture and inhuman or degrading treatment or punishment (Article 3 ECHR). Other cases have exposed poor practices, procedures and equipment on the part of the MoD that have led to the unnecessary deaths of and injuries to members of the Armed Forces. Other cases have not exposed such wrongdoing. Despite these investigations and inquiries there have been few prosecutions even where there has been hard evidence, for example recordings of mistreatment and abuse of detainees, that allow soldiers to be identified.26

23.Some of the key inquiries, litigation and investigations concerning Iraq and Afghanistan are as follows:

a)Baha Mousa Inquiry, 2011: this public inquiry examined the death of Baha Mousa and nine others who were detained in Basra in 2003, beaten, subject to unlawful “conditioning techniques”, and found dead. In 2011, the inquiry found that Baha Mousa died after an “appalling episode of gratuitous violence” and noted the MoD’s “corporate failure” for the use of banned interrogation techniques.27

b)Al-Skeini, 2011:28 concerned a number of individuals who were allegedly killed by British troops on patrol in UK occupied Basra. The European Court of Human Rights (ECtHR) determined that in certain very limited circumstances the ECHR will apply outside the territories of its member states. It was applicable to actions taken by British troops in Basra where the UK assumed the exercise of some public powers normally exercised by a sovereign government. The Court went on to find that there had been a failure to conduct an independent and effective investigation into the deaths of the relatives of five of the six applicants, in violation of Article 2 ECHR. In the related case of Al-Jedda, the Court found a violation of Article 5 ECHR (right to liberty and security) in relation to the detention of the applicant by UK Armed Forces in Iraq.

c)Al-Sweady Inquiry, 2014: this public inquiry arose from a case brought by Hamid Al-Sweady, who claimed that his nephew had been unlawfully killed while in the custody of UK Armed Forces. The inquiry also looked into other related claims of detention and mistreatment by British troops. In December 2014, the inquiry reported that certain aspects of the way detainees were treated amounted to actual or possible ill-treatment. However, a significant percentage of the claims were found to be unmeritorious. Following action taken by the Solicitors Regulation Authority (SRA), the lawyer responsible, Phil Shiner, was struck off in 2017 for professional misconduct (i.e. dishonesty over false claims).29

d)Iraq Historic Allegations Team, 2010–2017: in 2010, the Government established the Iraq Historic Allegations Team (IHAT). IHAT received 3,400 allegations of unlawful killings and ill-treatment.30 IHAT determined that for around 70% of those there was no case to answer or it was disproportionate to conduct a full investigation. The Government closed IHAT in 2017. The remaining 1,260 allegations were taken over by the Service Police Legacy Investigations (SPLI) branch of the Service Police.31 As at 30 June 2020, they had closed 1,213 of the cases.32 Some cases require further inquiry by the MoD after completion of an investigation by IHAT or SPLI, in accordance with obligations under Articles 2 and 3 ECHR. The MoD periodically publishes summaries of decisions and reasons for them. Claimants can request the full decision in their case.33

e)Smith and Others v MoD [2013] the Supreme Court held that members of the Armed Forces, or their bereaved relatives in the case of those who had died, were protected by the ECHR in relation to claims that their equipment was inadequate and had led to their injuries/deaths—this related to claims about the inadequacy of Snatch Land Rovers as well as claims about the lack of adequate protection against “friendly fire”.34

f)Iraqi Fatalities Investigations, from 2014: this was established after the courts determined in 2013 that Article 2 ECHR required a publicly accountable investigation with the participation of the families of the deceased.35 These investigations only take place after a decision not to prosecute and they do not establish civil or criminal liability—they are akin to coronial inquests.36

g)Hassan v UK [2014]37 The ECtHR held that in situations of armed conflict, the provisions of the ECHR should be interpreted against the background of the provisions of international humanitarian law. Specifically, the grounds of permitted deprivation of liberty under Article 5 ECHR should be accommodated, as far as possible, with the taking of prisoners of war and the detention of civilians who posed a risk to security under the Third and Fourth Geneva Conventions. Deprivation of liberty had to comply with international humanitarian law in order to be lawful, and also had to be in keeping with the fundamental purpose of Article 5(1), which is to protect the individual from arbitrariness. The Court concluded that there had been no breach of Article 5 in this case, because the capture and detention of the claimant’s brother in Iraq had fulfilled these requirements.

h)Operation Northmoor: this was an investigation in 2014 by the Royal Military Police into allegations relating to UK detention operations in Afghanistan between 2005 and 2013. In total, 675 allegations were referred from 159 individuals. No case was referred for prosecution by the Service Prosecuting Authority.38

i)R (Al Saadoon) v Secretary of State for Defence [2016]:39 The appellants sought orders requiring the Secretary of State to investigate allegations of unlawful killings of Iraqi civilians by British soldiers. The Court of Appeal held that the ‘public powers’ basis for extra-territorial jurisdiction of the Convention established in Al-Skeini could also apply during a post-occupation period. It would apply in situations where state agents exercised a degree of power and control over a person which went beyond the use of potentially lethal force, and included an element of control prior to the use of force. The Court then considered various test cases to determine whether Iraqi civilians who had been killed were under the effective control of UK Armed Forces and therefore came within the jurisdiction of the Convention.40

j)In 2017, the case of Alseran before the High Court revealed the use of prohibited interrogation techniques, physical assaults and sexually humiliating treatment of detainees by British soldiers.41

k)Mohammed v Secretary of State for Defence [2017]:42 The Supreme Court considered whether the detention of enemy combatants for long periods in Iraq and Afghanistan breached Article 5 ECHR. It held that British forces had legal power to detain individuals for periods longer than 96 hours. Authority to detain was implicitly conferred by the UN Security Council Resolutions where it was required for imperative reasons of security. Article 5(1) should be read so as to accommodate as permissible detention pursuant to that power in the context of non-international armed conflict. This followed the reasoning of the ECtHR in Hassan, that Article 5(1) should be treated as non-exhaustive so as to accommodate the existence of a power of detention in international law.

24.More recently, the MoD has been criticised for failing to properly investigate alleged offences:

a)In November 2019, BBC Panorama and The Sunday Times conducted an investigation following which they alleged that the MoD had covered up evidence relating to war crimes in Afghanistan and Iraq.43 The Foreign Secretary responded to say that all the allegations and evidence had been looked at.

b)In August 2020, The Times reported allegations of a cover up in relation to an alleged SAS execution force in Afghanistan, following the discovery of documents during a case before the High Court.44 These allegations were denied by the Parliamentary Under Secretary of State for Defence, People and Veterans, Johnny Mercer MP in the House in January 2020.45

25.It is clear that some of the investigations, inquiries and litigation into incidents arising from the UK’s involvement in the conflicts in Iraq and Afghanistan have exposed wrongdoing, such as mistreatment of detainees, unlawful detention and breaches of the prohibition on torture and inhuman or degrading treatment or punishment (Article 3 ECHR). Cases have also exposed poor practices, procedures and equipment on the part of the MoD that have led to the unnecessary deaths of, and injuries to, members of the Armed Forces. Such investigations, inquiries and litigation must continue to be allowed to uncover any such poor practices, so that lessons are learned in order to prevent people—whether members of the Armed Forces or civilians—being harmed or killed unnecessarily.

Inadequacy of Ministry of Defence investigations

26.According to the evidence submitted to this inquiry (as well as the findings of the APPG on Drones and APPG on Human Rights),46 due to the inadequacy of the MoD’s system for investigating allegations, many investigations have been protracted and repeated. This has had unfortunate consequences for all involved and has not served the interests of justice.

27.Indeed in May 2019, Johnny Mercer MP said, “one of the biggest problems with this was the military’s inability to investigate itself properly and the standard of those investigations”.47 Further, in evidence to the Committee, he acknowledged the significant issues with MoD investigations and said that measures would be brought forward to address this issue but not in legislation.48

28.Critics of the Bill have argued that it fails to address the real root cause of the problem, which they say is the inadequacy of MoD investigative processes and systems rather than the criminal or civil courts.49 Elizabeth Wilmshurst told us:

No, [the presumption against prosecution] is not justified. There has been a problem, in that service personnel seem to have been the subject of inquiries and investigations, sometimes more than one in relation to the same incident. But the presumption is not the way to fix any problem that there may be. The presumption puts at risk the UK’s reputation as an upholder of international law and puts UK service personnel at risk of being prosecuted not before our own courts but before the International Criminal Court.50

29.We heard from those with direct experience of investigations in the British Army who explained how the investigations were not sufficiently resourced, independent, timely or expert.51 For example, Mark Goodwin-Hudson, former British Army Officer and NATO Civilian Casualty Investigation and Mitigation Team lead in Afghanistan, told us:

[…] what we need instead of the presumption against prosecution […] is the ability to conduct accurate and timely investigations in theatre as the best means to stop this spiralling of reinvestigation and to understand and address the allegations against our soldiers.52

30.This failure in independent, timely and expert investigations has meant that investigations were flawed and needed to be repeated—creating a cycle of investigations that was stressful for both victims and those accused.

31.We also heard of some of the cultural barriers to investigations. Reverend Nicholas Mercer, former Command Legal Advisor, UK 1st Armoured Division, Iraq War, told us:

“Another factor is that soldiers, even to this day, have put up what has been termed a wall of silence. We heard in the Saville inquiry about soldiers not breaking ranks, and we heard about it in Baha Mousa. If you put a statute of limitations on it, there is a temptation to run down the clock. The law is fine as it stands. Any attempt to put a time limit on it raises problems of its own and is unnecessary.”53

32.We heard how there were problems with accountability from senior figures and the instructions they were giving. Mark Goodwin-Hudson told us:

“When I was in Iraq, for example, my general would run around saying, “Don’t use two rounds if you can use 200 rounds. Don’t fire twice if you think you can fire 200 times”. That is a very provocative and deliberate attempt to increase the violence, yet the soldier is often the fall guy for mistakes and innocent people getting killed in those situations. I am a former officer. We should be held to account just as much as the person who pulls the trigger.”54

33.We also heard how there were concerns that operational legal advice to comply with the UK’s torture obligations was overridden by the MoD and Attorney General in London. Reverend Nicholas Mercer told us:

“Being the commander legal in the Iraq war, I walked in on one of these interrogation sessions as early as March 2003 and saw 40 Iraqis being subjected to what are known as the five techniques, which, as Lord Trimble will know, came to the fore in Northern Ireland in the 1970s. I made a complaint; other senior officers made a complaint. We were overruled. When it came to the Baha Mousa inquiry in 2011, eight years later, Sir William Gage said there had been a corporate failure by the Ministry of Defence in relation to detention and interrogation. That means that six years of military activity, when it came to interrogation and detention, was in breach of international law.”55

34.The evidence indicates overwhelmingly that investigations into incidents have been inadequate, insufficiently resourced, insufficiently independent and not done in a timely manner to gather adequate evidence. This has resulted in repeated investigations to try to remedy the flaws of previous investigations. This creates stress and uncertainty for both those accused of wrong-doing and for victims. It also impedes justice as cases cannot be brought or resolved.

35.Investigations will still be required, despite this legislation. And the inadequacy of those investigations will not be addressed by the Bill. Furthermore, the Bill does nothing to address the issue of repeat investigations which causes distress to both alleged victims and alleged perpetrators. It is therefore difficult to reconcile the contents of the Bill with its stated objective.

36.The MoD must, as a priority, establish an independent, skilled and properly funded service for investigations. Investigations must be robust, take place promptly and be sufficiently independent and of high quality so that there is no longer any need for repeated or protracted investigations.

37.To this end we note with interest the very recent announcement of a review into the processes of the service police and the service prosecuting authority.56 In the Written Ministerial Statement that announced this review, Ben Wallace MP, the Defence Secretary said:

I am [ … ] commissioning a review so that we can be sure that, for those complex and serious allegations of wrongdoing against UK forces which occur overseas on operations, we have the most up to date and future-proof framework, skills and processes in place and can make improvements where necessary. The review will be judge-led and forward looking and, whilst drawing on insights from the handling of allegations from recent operations, will not seek to reconsider past investigative or prosecutorial decisions or reopen historical cases. It will consider processes in the service police and Service Prosecuting Authority as well as considering the extent to which such investigations are hampered by potential barriers in the Armed Forces, for example, cultural issues or operational processes. A key part of the review will be its recommendations for any necessary improvements.

38.We hope that this review and any ensuing actions taken address the core issues impeding timely, independent and adequate investigations. We also look forward to receiving updates on the review and how any recommendations will be taken forward.

26 See for example “Historical war crimes: an amnesty for British soldiers?” The Guardian, Today in Focus, May 2019

27 The Baha Mousa Public Inquiry Report, The Rt Hon Sir William Gage (Chairman), HC 1452–I, September 2011

28 Al-Skeini & Others v UK (App. No. 55721/07), 2011

29 Ministry of Defence, Report of the Al Sweady Inquiry, HC 818-I, December 2014, and “Professor Phil Shiner and the Solicitors Disciplinary Tribunal” Solicitors Regulation Authority, 2 February 2017

32 Overseas Operations (Service Personnel and Veterans) Bill 2019–21, Briefing Paper 8983, House of Commons Library, 22 September 2020

34 Smith and Others v MOD [2013] UKSC 41.

36 Overseas Operations (Service Personnel and Veterans) Bill 2019–21, Briefing Paper 8983, House of Commons Library, 22 September 2020

37 Hassan v United Kingdom (29750/09) [2014] 9 WLUK 388

38 Overseas Operations (Service Personnel and Veterans) Bill 2019–21, Briefing Paper 8983, House of Commons Library, 22 September 2020

39 R (Al-Saadoon) V SoS for Defence [2016] EWCA Civ 811

40 Paras 75–105

41 Alseran and Others v MOD [2017] EWHC 3289 (QB). See written submission from The Centre for Military Justice (OOB0017).

42 Mohammed v Secretary of State for Defence [2017] UKSC 2

43UK Government and military accused of war crimes cover-up” BBC News, 17 November 2019, https://www.bbc.co.uk/iplayer/episode/m000bh87/panorama-war-crimes-scandal-exposed

44Rogue SAS Afghanistan execution squad exposed by email trail”, The Times, 1 August 2020; “Rogue SAS Afghanistan execution squad exposed by email trail”, The Sunday Times, 2 August 2020. See also “Defence Secretary to review Afghanistan emails”, BBC News, 3 August 2020

45 HC Deb, 7 January 2020, cols 359–363

46 See written evidence, All-Party Parliamentary Group on Drones (OOB0026). See also Qq2–3 [Mark Goodwin-Hudson] “the ability to conduct accurate and timely investigations in theatre [is] the best means to stop this spiralling of reinvestigation and to understand and address the allegations against our soldiers.”

47Historical war crimes: an amnesty for British soldiers?” The Guardian, Today in Focus, May 2019

48 Q14 [Johnny Mercer MP] “Yes, there has been a serious generational problem with the standard of investigations that this department has carried out into allegations of lawfare. Over the years that has manifested itself in the fact that a lot of the investigations have not withstood rigour as regards ECHR compliance and things like that. That has been a major problem…. That is not in the Bill, because that is not a piece of legislation. That is an internal process that absolutely the MoD has to do...I hope people will see even before the end of the week the steps we are taking to address some of the problems that you mention.”

49 For example, see evidence from The Centre for Military Justice (OOB0017), Mark Goodwin-Hudson (OOB0022)), Emeritus Professor Francoise Hampson (OOB0011). See also Martyn Day, at Q2 “The main problem is the failure of the prosecuting authorities, the Royal Military Police, to do a thorough job at the start. It is even recognised by the Ministers that, if they had done their job at the start, there could have been a proper analysis of whether prosecutions could be brought on the evidence that they had. The fact that the Royal Military Police were so poorly resourced and so nonindependent meant that, first, the investigations were not carried out properly and, secondly, when they eventually came in front of the courts, the courts said, “This is not an independent body, and it needs to be an independent body to carry out these sorts of investigations”. It is the wrong way to approach the problem.”

50 Q2 [Elizabeth Wilmshurst]

52 Q2

53 Q2 [Reverend Nicholas Mercer]

54 Qq6–7 [Mark Goodwin-Hudson]

55 Q8 [Reverend Nicholas Mercer]

56 HC Deb, 13 October 2020, col 507WS and see letter from Rt Hon Ben Wallace MP, Secretary of State for Defence, regarding the Bill, dated 12 October 2020.

Published: 29 October 2020