39.The Bill introduces a “triple-lock” against prosecutions of members of the Armed Forces, which will apply to all relevant offences five years after the date of the alleged criminal conduct. The Government states that the intention is to “raise the bar for prosecutions in relation to historic incidents that occur in the context of overseas operations”. Taken together this “triple lock” does indeed begin to seem quite onerous. Five years is rather a short period of time given the context of conflict, and the presumption against prosecution could lead to impunity, violate the right to a remedy for genuine victims, and undermine the UK’s international obligations to prosecute international crimes.
40.The prosecutors who bring prosecutions against Armed Forces Personnel are the UK Service Prosecuting Authority (part of the MoD) following an investigation done internally (also by part of the MoD). A prosecution can only be brought where there is “sufficient evidence” that the accused committed the offence and where it is also “in the public interest” to bring a prosecution. There is therefore a high threshold before a prosecution can be brought. Moreover, there appear to have been relatively few prosecutions brought against service personnel for offences committed during overseas operations.
41.In evidence provided to this Committee, Damian Parmenter CBE, the MoD Director of Defence & Security Industrial Strategy, informed us that since 2000, a total of 27 prosecutions had been brought in relation to Iraq and Afghanistan. The Minister and MoD staff could not name one prosecution that they thought was vexatious. We heard from Reverend Nicholas Mercer, that:
There will always be exceptional cases, but the vast majority of these have legal merit [ … ] The prosecutor looking at [cases] in the first instance will know when a case is without merit and may close it [ … ] Before I left the army, I gave legal advice on a number of prominent cases, including Camp Breadbasket, which is appalling. I invite you to go back and look at the pictures of abuse that took place. At the same time, I found a case that was without merit and I closed it. It was as simple as that. I do not need legislation to do that. It happens already.
42.We understand that none of the MoD’s current historical investigations (as concerns Iraq or Afghanistan) has resulted in a prosecution being brought. It is therefore difficult to understand what the problem is with prosecutions (a separate matter from the quality of investigations).
43.It is difficult to understand why the MoD is legislating to limit the ability of its own prosecutors to bring prosecutions when so few prosecutions have been brought, and when there is no suggestion that prosecutions brought by the Service Prosecuting Authority have been vexatious.
44.We asked the Minister what he meant by vexatious prosecutions brought by the MoD against Armed Forces Personnel in a series of questions, but he seemed not to understand the question or not to want to answer the question and talked instead in general terms about matters relating to civil claims.
45.There has been no suggestion that the Service Prosecuting Authority is bringing excessive or unjustified prosecutions against members of the Armed Forces, therefore we can see no justification for introducing the statutory presumption against prosecution of Armed Forces personnel. We have significant concerns that clauses 1–7 have been introduced based on a misunderstanding of the difference between (i) investigations; (ii) prosecutions; and (iii) civil claims.
46.We cannot see any justification for introducing a statutory presumption against prosecution in cases where the Service Prosecuting Authority considers that there is sufficient evidence that a member of the Armed Forces committed an offence and has already decided that it is in the public interest to bring a prosecution. For these reasons we consider that clauses 1–7 should be deleted.
47.Armed Forces personnel are bound to abide by the criminal law of England and Wales as well as international humanitarian law when they embark on operations overseas. As Katherine Willerton, Deputy Director in MoD Legal Advisers confirmed to the Committee, the Government is “not aware of any precedents” for having special class of defendant, who is protected over and above the protections provided by the court and by the prosecutors’ duties, to ensure a sufficient threshold of evidence and that a prosecution is in the public interest.
48.At present, in domestic law, there are no time limits applicable to prosecutions except for in respect of the most minor offences. However, a prosecutor will have regard to the cogency of evidence (and witness memories) in deciding whether it is in the public interest to bring a prosecution. International human rights law, including the ECHR, does however allow for time limitations for criminal prosecutions but there are restrictions as to when that will be reasonable. Importantly, a limitation period that would prevent prosecutions is unlawful under international law if it prevents investigations and prosecutions in relation to torture, war crimes, crimes against humanity and genocide.
49.The Government argues that the Bill merely introduces a “presumption” against prosecution rather than a statute of limitation. Although it is “merely” a presumption, it is accompanied by further hurdles to bringing a prosecution after five years:
a)the starting point is presumption against prosecution after 5 years;
b)the prosecutor must only prosecute in “exceptional” circumstances;
c)the prosecutor then needs to give “particular weight” to:
i)the “adverse effect” (or likely adverse effect) on the person of the conditions the person was exposed to during deployment on operations overseas (including the “exceptional demands and stresses” to which service personnel are subject); and
ii)the public interest in finality (where a person has been previously investigated and there is no new compelling evidence); and
d)finally, the consent of the Attorney General is required.
50.In the Government’s own words, the Bill “raises the bar” for prosecution of service personnel/veterans. The Law Society of England and Wales, in its written evidence to the Committee, concludes that the presumption against prosecution creates a “quasi-statute of limitation” which is “unprecedented” in the criminal law and presents “a significant barrier to justice”.
51.Indeed, the proposed presumption against prosecution operates in effectively the same way as a statute of limitation, which is almost unheard of in UK criminal law. However, with the exception of sexual offences, the Bill introduces a statutory presumption against prosecution after five years for all offences committed by Armed Forces personnel, including the most heinous crimes such as murder, torture, war crimes, crimes against humanity and genocide.
52.The MoD consultation in 2019 proposed a presumption against prosecution after 10 years. In the Bill, this has been halved to 5 years, which is very short. Whilst other countries such as France and the US have statutes of limitation for criminal offences, these exclude the most serious offences and do not grant a special status to certain persons such as military personnel.
53.Moreover, the presumption may serve to deny justice to victims. Five years is an extremely short period of time in the context of overseas armed conflict. There are many practical reasons why it may not be possible to bring a prosecution during this time such as the protracted nature of the conflict, the continuing unlawful detention of the victim, or a persisting physical or mental injury. The British Red Cross, in its evidence to the inquiry, stated that the five-year time limit may be too short in some cases, particularly in protracted conflict scenarios where safe access to evidence is notoriously difficult to obtain.
54.There should not be different classes of defendant or different classes of victim. We are concerned at the introduction, into the domestic laws of the United Kingdom, of a special category of defendant (i.e. members of the Armed Forces) whose victims are seemingly less deserving of justice and who are granted greater impunity for their crimes. We note that a prosecution may only be brought where there is sufficient evidence and where it is in the public interest. We do not understand why cases should not be brought against this category of defendant (i.e. members of the Armed Forces) where there is sufficient evidence of a crime having been committed by the defendant and where it is in the public interest to prosecute.
55.This presumption against prosecution applies to all criminal offences, excluding sexual offences as listed in Schedule 1. All other crimes including crimes against humanity, war crimes, genocide and torture would be subject to the presumption against prosecution.
56.Whilst it is generally permissible in human rights law to apply a statute of limitation to crimes, there are limits: there are some criminal offences which are so heinous that international law prohibits a statute of limitation applying, such as war crimes. Obligations under specific international human rights treaties and international humanitarian law (the law of armed conflict) place an absolute duty on States to prosecute offenders for certain crimes such as torture, war crimes and crimes against humanity.
57.The UK is bound by international legal obligations to undertake effective investigations, to prosecute various international crimes where there is sufficient evidence, and to refrain from imposing a statute of limitation on certain crimes:
a)Articles 2 and 3 ECHR: the UK is under a procedural obligation to undertake effective investigations into cases where the state has used lethal force (engaging Article 2) or where there are allegations of serious ill-treatment meeting the threshold of Article 3 (torture, inhuman or degrading treatment or punishment). There is nothing in the Bill which prevents investigations taking place. However, the ECtHR has determined that in order for an investigation to be effective, it must be “capable of leading to the establishment of the facts […] and—if appropriate—punishing those responsible.” The ECtHR further held that “national courts should not under any circumstances be prepared to allow life-endangering offences to go unpunished”.
b)Geneva Conventions: the UK is under a duty to “search for persons alleged to have committed […] grave breaches [of the Geneva Conventions i.e. serious war crimes] and shall bring such persons, regardless of their nationality, before its own courts.”
c)UN Convention Against Torture (CAT): Article 7 of UNCAT requires that allegations of torture must be submitted to the prosecuting authorities who must decide whether to prosecute “in the same manner as in the case of any ordinary offence of a serious nature under the law of that State.” In evidence to this inquiry, the former UN Special Rapporteur, Juan Mendez, notes that under the CAT, states must investigate, prosecute, and punish acts of torture and ill-treatment, including by removing impediments to prosecution. The Bill, he states, “unfairly hinders victims from accessing the courts and adds further logistical hurdles by requiring them to prove their case is “exceptional””.
d)Rome Statute: Article 29 of the Rome Statute, to which the UK is a State Party, states that crimes within the jurisdiction of the ICC (which includes war crimes, crimes against humanity and genocide) shall not be subject to any statute of limitation.
e)Customary international law: Customary international humanitarian law prohibits the application of statutes of limitation to war crimes.
58.We heard from witnesses and in evidence that placing time limits on the prosecution of torture is a breach of our obligations under UNCAT and placing time limits on the prosecution of war crimes, crimes against humanity and genocide is a breach of our obligations under the Geneva Conventions and Rome Statute. As Elizabeth Wilmshurst told us:
The laws of war in the 1949 Geneva Conventions and the first protocol provide an obligation on the UK to prosecute for grave breaches of the conventions in international armed conflict. The torture convention has an obligation to prosecute. As has been pointed out, that has been interpreted by the UN committee on torture as rendering statutes of limitation, which this presumption effectively is, unlawful under the convention. The genocide convention requires us to prosecute and punish. So, yes, it would be unlawful under our international obligations. Added to that, as we have already mentioned, we are rendering our service personnel liable to prosecution by the International Criminal Court.
59.Those who submitted evidence were surprised that the Bill excluded sexual offences but not war crimes or torture—noting that it would lead to perverse outcomes so that a member of the Armed Forces would be prosecuted ordinarily, say, if he raped or sexually assaulted a woman, but there would be barriers to prosecuting him for murder if he then went on to murder her.
60.We also note the exceptional correspondence that the UK has received from UN Special Rapporteurs on human rights expressing concern that this Bill breaches international law. The UN experts on human rights said
There can be no excuse for unlawful killings or torture […] The universal prohibition against torture is absolute and non-derogable—it is considered so important that it cannot be limited or suspended under any circumstances. Governments cannot lawfully grant impunity or otherwise decline to investigate and prosecute such crimes.
By introducing a statutory presumption against prosecution and statutes of limitations, this bill undermines the absolute and non-derogable nature of the prohibition of torture and violates human rights law, as well as international criminal and humanitarian law. In the same manner, statutes of limitations should not be applied to acts constituting enforced disappearance, as it is considered a continuing offence as long as the perpetrators continue to conceal the fate and the whereabouts of persons who have disappeared and these facts remain unclarified. It is essential that domestic laws comply with international obligations.
61.The presumption against prosecution therefore runs the risk of contravening various international legal obligations. In this light we asked the Minister whether he would accept that war crimes, crimes against humanity, genocide and torture would always be “exceptional” and should be prosecuted where the relevant evidential threshold had been met and where it was in the public interest to do so. We had hoped that he would confirm that, provided the Service Prosecuting Authority was satisfied that they had sufficient evidence to bring a prosecution and that there was a public interest in bringing the prosecution, that such cases should always be brought when they concerned war crimes, crimes against humanity, genocide or torture.
62.We find it unacceptable that Johnny Mercer MP, the responsible Minister, would not confirm that he thought that members of the Armed Forces should be prosecuted in respect of war crimes, crimes against humanity, genocide or torture where the Service Prosecuting Authorities were satisfied that they had sufficient evidence to bring a prosecution and that there was a public interest in favour of bringing the prosecution.
63.We have significant concerns that the presumption against prosecution runs the risk of contravening the UK’s international legal obligations under international humanitarian law (the law of armed conflict) and international human rights law. In particular, it risks contravening the UK’s obligations under the UN Convention Against Torture, the Geneva Conventions, the Rome Statute and international customary law.
65.It is in the interests of the UK to ensure that it has appropriate jurisdiction over its own actors, not only to ensure respect for the rule of law, the laws of armed conflict and human rights law by its own forces, but also in order to avoid the need for foreign states or the International Criminal Court (ICC) to seek to prosecute UK actors, such as Armed Forces personnel, for alleged war crimes.
66.The UK is a state party to the Rome Statute, which is the founding statute of the ICC. The ICC has jurisdiction to investigate and prosecute war crimes, crimes against humanity and genocide perpetrated by UK personnel, if the UK is “unwilling or unable” to do so. In its initial report on the preliminary examination activities, the Office of the Prosecutor warned that if a statutory presumption against prosecution were to be introduced in the UK, “the Office would need to consider its 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”.
67.As reported by the Times, a leaked letter from Judge Advocate General Jeffrey Blackett, the UK’s most senior military judge, to the Defence Secretary noted that the Bill “increases the likelihood of UK service personnel appearing before the ICC”, describing the Bill as “bringing the UK armed forces into disrepute”. There is, therefore, a risk that cases involving UK service personnel will be tried before the ICC in the Hague rather than in the UK.
68.As Elizabeth Wilmshurst told us:
If state parties [of the ICC], of which the UK is one, do not prosecute, the individuals concerned are vulnerable to prosecution before the International Criminal Court. That is what we are doing to our service personnel if we exclude them from prosecution under the presumption.
69.We are deeply concerned that the introduction of a presumption against prosecution may mean that members of the British Armed Forces are at risk of being prosecuted either in another State or before the International Criminal Court. This is a real risk if it is considered that this presumption (combined with the existing concerns about the inadequacy of MoD investigations) leads other States or the ICC to conclude that the UK is unwilling or unable to investigate and prosecute for war crimes.
70.Clause 3 provides that in taking any decision to prosecute a person more than 5 years after an event, the prosecutor shall only decide to prosecute in exceptional circumstances. In making that decision the prosecutor must give particular weight to the adverse effect (or likely adverse effect) of the conditions the person was exposed to during deployment on the ability of that member of the Armed Forces to make sound judgements, to exercise self-control, or any other impact on their mental health.
71.In domestic law the prosecution would take into account a person’s mental health as part of the decision as to whether a prosecution is in the public interest—and this is a factor that would currently already apply to prosecutions of members of the Armed Forces. Moreover, a person who is not fit to plead at the time of trial would not be assessed for the mens rea (mental element) of an offence. A defendant could raise a plea of insanity as a defence if at the time of the offence their mental condition was so impaired that they were unable to understand the act they were doing or that it was wrong. However, people are not given immunity from prosecution merely because they do not make sound judgements or have problems exercising self-control, or because of any underlying mental health reasons. However, any stress or pressure they were under would be taken into account as mitigating factors in sentencing. As Elizabeth Wilmshurst told the Committee, these factors “are inappropriate for inclusion in a prosecutorial decision.”
72.The MoD should not be deploying service personnel in overseas operations if those individuals are unable to make sound judgements or have difficulty in exercising self-control. Moreover, if a member of the Armed Forces develops an inability to make sound judgements or difficulty in exercising self-control whilst they are deployed in operations overseas, the MoD should take them out of that situation as soon as feasible and give them the support they need. That is the correct approach for both the well-being of the service personnel affected as well as those around them, rather than legislating so as to avoid responsibility for the consequences of arming those who are unable to make sound judgements or who have difficulty in exercising self-control. The solution in such cases is to give those individuals the support they need and to remove them from overseas operations. Sadly, this Bill risks disincentivising such steps.
73.It is difficult to understand how a factor relating to a lack of sound judgement or a lack of self-control is pertinent to a decision to prosecute after a certain time-period as the effect of conditions during deployment overseas is irrelevant to the amount of time that has passed since the events took place.
74.The MoD argue that this would take into account the unique pressures faced by Armed Forces personnel in the course of their duties outside the UK. Conversely, Armed Forces personnel (as for police forces in the UK) are specifically trained so that they do not use force unjustifiably. Were our security forces (whether police or military) to be allowed to use unjustified force going beyond the force necessary, then this could be a concerning precedent that could ultimately lead to a more cavalier approach to the use of force by our military and police forces.
75.The MoD notes that Armed Forces personnel are routinely called upon to make snap decisions in exceptionally difficult, often life-threatening, situations, while still holding them accountable under the law and this is indeed what they are trained to do. It is difficult to understand why this should mean that prosecutions should not be brought for e.g. the unlawful killing of a non-combatant, or the torture of a detainee. There is also the risk of read across to military and police forces operating in similarly charged situations in the UK.
76.We are concerned that the Bill does not provide any incentives for the military hierarchy to ensure that members of the Armed Forces who are mentally unfit to be deployed get removed from operational duties and given the support that they need. Instead it includes an impediment to prosecuting a person whose judgement may be impaired, who lacks adequate self-control or whose mental health may have been affected by deployment.
77.The MoD should not be sending Armed Forces personnel on deployment who are unable to make “sound judgements”, who cannot “exercise self-control” or whose mental health is so severely affected that the MoD does not consider that they should be responsible for their criminal actions. Moreover, if a member of the Armed Forces becomes unable to make “sound judgements”, can no longer “exercise self-control” or where there are significant concerns about their mental health, then there should be adequate systems in place to relieve that person of their operational duties, remove them from the conflict situation (where appropriate) and give them the support that they need.
78.The fact that a person has been deployed on operations overseas is irrelevant for considering a deadline on prosecutions. Moreover, we are concerned about the potential read across to the regular application of international humanitarian law, as well as behaviours of security forces more generally. Service personnel are trained to deal with very complex situations. It is only right that due account is taken of the complexity of a combat situation as part of any decision as to whether to bring a prosecution (i.e. is there sufficient evidence that an offence has been committed, and is it in the public interest to prosecute). However, it should not be part of a statutory barrier to bringing prosecutions where they are in the public interest.
79.The mental health of a defendant is already borne in mind as part of the prosecutorial decision as to whether it is in the public interest to bring a prosecution. We do not consider that there is any solid basis for including additional requirements that could risk granting de facto impunity to those who have committed crimes on the grounds that the perpetrator lacked sound judgement, or could not exercise self-control, beyond the threshold already established in criminal law. For this reason, we would recommend deleting clause 3(2)(a), 3(3) and 3(4).
80.Clause 3 provides that in taking any decision to prosecute a person more than 5 years after an event, the prosecutor shall only decide to prosecute in exceptional circumstances and the prosecutor must give particular weight to the public interest in finality being achieved without undue delay, where there has been a previous investigation and where there has been no new compelling evidence.
81.The Government believes that “where a Service person has been investigated and charges have not been brought, then, absent compelling reasons (such as the emergence of new evidence), that position ought to be final”. They feel this is necessary “to afford Armed Forces personnel and veterans greater protection from the threat of prosecution for alleged historical offences committed in the course of duty outside the UK”.
82.As we explored in Chapter 2 there are well-documented and significant concerns with the standard of MoD investigations. It is not clear what standard of investigation applies in order for the statutory barrier to bringing a prosecution to apply. It also is not clear what happens if the relevance of information or evidence was missed.
83.There are significant concerns, that the Minister accepts, with the standard and adequacy of MoD investigations of members of the Armed Forces. And yet in this Bill the Government is effectively using the existence of potentially inadequate investigations as a barrier to bringing prosecutions—even where a prosecutor has decided that there is a sufficiency of evidence that the accused committed the offence and that there is a public interest in bringing the prosecution.
84.No prosecution that is in the public interest, should be prevented from being brought because of inadequate or insufficiently independent prior investigations by the MoD. Clauses 3(2)(b) and 4 of the Bill should be removed or at least amended so that they only apply to adequate, expert, independent investigations.
85.The Bill provides that, in addition to the barriers already mentioned, the Attorney General will make the final decision as to whether or not to prosecute after five years. Witnesses expressed concern at the risk of politicisation by giving the Attorney-General, a Government Minister, a veto in respect of any prosecutorial decision. This was particularly so given the potential conflict of interest as the Attorney General will most likely have advised the Armed Forces on the conduct of that armed conflict—for example, she may well have been involved in advising on any decisions as to the types of interrogation, detention or other practices to be employed by the Armed Forces. As Reverend Nicholas Mercer told us:
Having taken part in an international armed conflict as the senior legal adviser, my experience was that the Attorney-General was directly involved in military operations. I would propose something for the 1st Armoured Division headquarters, it would be staffed to PJHQ, and if the Ministry of Defence did not like it it would seek advice from the Attorney-General. Certainly in one instance the Attorney-General overruled the advice I was giving about having a judge in theatre to oversee detention. I was overruled by the Attorney-General on that occasion, I am led to believe.
There is a slight irony here, because the Attorney-General has to give consent anyway to a prosecution for breaches of the Geneva Conventions, but the Attorney-General is also involved in military operations. As I said earlier, one of my problems with the whole Iraq business, being the chief lawyer in theatre, was that there were black sites being set up for prisoners. We had a prisoner of war camp and then there were other prison sites. If the Attorney-General was involved in that—I do not know—he or she would be ruling on a potential prosecution that they were involved in. You can see the conflict of interest very clearly there, so I have difficulties with this.
87.If an independent prosecution authority determines that it has sufficient evidence to bring a prosecution and that a prosecution is in the public interest (having regard to all the relevant factors), we do not see why the Attorney General should be given a veto over those efforts to bring someone to justice. This is all the more concerning when this may apply where the Attorney has herself previously advised on the alleged unlawful conduct and therefore may have a pronounced conflict of interest.
88.The Bill provides that this presumption applies to alleged offences committed against other British nationals, or nationals of other countries (including civilians), but not to alleged offences committed against fellow Armed Forces personnel or against other Crown Servants or defence contractors [Clause 6(2)]. These distinctions could result in prosecutions being brought for e.g. the murder only of Armed Forces personnel (in a group of murders) but not civilians who were killed in the same incident.
89.In her evidence to our Committee Katherine Willterton, Head of the MoD legal adviser’s General Law Team, said that offences against civilians would be subject to the statutory presumption against prosecution whereas offences against fellow members of the Armed Forces would not as such offences were not “in any way understandable”. The presumption against prosecution would apply to all foreign national victims, including children, civilian populations, aid workers and those taking no part in hostilities—because the “threat of violence is coming […] from foreign nationals”. It is concerning to hear that the MoD policy is based on a view that offences committed against civilians can be in some way “understandable”, and that references to “foreign nationals” seem to fail to distinguish between civilians and combatants. Such a policy—and indeed such language—does not suggest a culture of compliance with the rule of law. Indeed, it rather suggests a culture that treats civilians as less deserving of protections than members of the Armed Forces. To this end we note concerns raised in evidence about the “racist overtones” of this Bill.
90.We are deeply concerned at the difference in treatment of victims and we note concerns that have been expressed about the “racist overtones” of this Bill. We do not accept that any offences are “understandable” depending on the nationality or employment status of the victim of an offence.
57 The details of this “triple lock” proposal are set out in Chapter 1.
58 [Bill 117 (2019–21)–EN], para 3
59 Prosecutions can be brought by the Crown Prosecution Service, but this is less common.
60 Dr Stuart Wallace (). All-Party Parliamentary Group on Drones, , 29 September 2020
61 Damian Parmenter, “ Some 27 individuals were charged since 2000, of whom eight were convicted in a court martial.”
62 [Damian Parmenter]
63 [Reverend Nicholas Mercer]
64 Ministry of Defence, , July 2019.
65 [Katherine Willerton]. She also added though that “we have found examples of where the code for Crown prosecutors requires a prosecutor in deciding whether to bring a prosecution to consider the particular characteristics of a suspect in relation to minors”.
66 Under s.127 of the Magistrates Court Act 1980 a prosecution must be started within 6 months for summary offences that can only be heard in the Magistrates Court; for example, most traffic offences, minor public order offences and failing to pay for a TV licence.
67 A statute of limitation is a law that limits the amount of time that is allowed to bring a legal action against a person.
68 , Clause 3
69 Meaning the adverse effect on their capacity to make sound judgements or exercise self-control; or on their mental health, at the time of the alleged conduct. , Clause 3(4).
70 , Clause 3(2)
71 The Law Society of England and Wales (), para 3
72 Under s.127 of the Magistrates Court Act 1980 a prosecution must be started within 6 months for summary offences that can only be heard in the Magistrates Court; for example, most traffic offences, minor public order offences and failing to pay for a TV licence.
73 Overseas Operations (Service Personnel and Veterans) Bill 2019–21, Briefing Paper , House of Commons Library, 22 September 2020, pages 23–24
74 Written evidence from the British Red Cross ()
75 Ref ICRC CIL Rule 160
76 See, for example, the UN Convention Against Torture; Geneva Conventions; Rome Statute.
77 McCann and Others v UK  App Np 18984/91; Sakir v Greece, App No 48475/09, 24 March 2016
78 Da Silva v UK, 2016, para 233
79 Da Silva v UK, 2016, para 239
80 Article 49, Geneva Convention I, Article 50 Geneva Convention II, Article 129 Geneva Convention III, and Article IV Geneva Convention IV.
81 Article 7 UNCAT
82 American University Washington College of Law, Center for Human Rights & Humanitarian Law (), para 10
83 Article 29 of the Rome Statute of the ICC
84 See the opinion of the International Committee of the Red Cross (ICRC), ICRC Customary IHL Study, Rule 160
85 [Elizabeth Wilmshurst]. At , Elizabeth also clarified “international offences—genocide, war crimes, crimes against humanity, and torture—should all be excluded, and not only those offences by name but corresponding offences under our domestic law…Sometimes you can charge either for murder or for the war crime. We want to exclude both of those.”
86 See for example, [Elizabeth Wilmshurst]
87 “UK Parliament must not introduce impunity for war crimes, say UN experts”, Office of the High Commissioner for Human Rights, 5 October 2020
89 Article 17 Rome Statute of the ICC
90 International Criminal Court, , December 2019, para 174
91 The Times, Law to Protect Soldiers could leave them facing war crimes tribunal, 4 June 2020
92 [Elizabeth Wilmshurst]
93 , Clauses 3(2)(a), 3(3), and 3(4)
94 As Martyn Day told us: “The fact that people subsequently find being prosecuted stressful is true for all prosecutions. People who are charged with criminal offences will always find that stressful. In my view, that can never be a factor to be taken on board in the decision by the prosecutor.”
95 [Elizabeth Wilmshurst]
96 Under the law of armed conflict (international humanitarian law) there are significant restrictions on the use of force—including the principles of humanity, the principle of military necessity, the principle of distinction and the principle of proportionality. These principles prohibit, for example, the use of force against a wounded or captured combatant, or any use of force that is not necessary for the military purpose, such as attacking a person who no longer posed a threat.
97 See Ministry of Defence, , 2019
98 [Reverend Nicholas Mercer]
100 [Katherine Willerton]: “The policy was drafted in this way because the feeling was that there were no circumstances in which service personnel could commit offences against their colleagues while on overseas operations and it be in any way understandable.”
101 [Katherine Willerton]: “The circumstance envisaged is that that threat of violence is coming at you from foreign nationals, not from your colleagues who are working alongside you in the camp. That is the distinction.”
102 Quaker ()
Published: 29 October 2020