The government has agreed that a bill designed to protect British military personnel deployed abroad from prosecution more than five years after an alleged offence will not prevent troops from facing charges of genocide, crimes against humanity or torture.
Leo Docherty, who replaced Johnny Mercer as defence minister yesterday, announced the concession when the government’s Overseas Operations (Service Personnel and Veterans) Bill returned to the Commons. He was responding to amendments made in the House of Lords which would also have excluded war crimes from the bill’s provisions. War crimes are defined in legislation to include “wilful killing” contrary to the Geneva conventions — in effect, murder.
The minister’s Conservative colleague David Davis pointed out that if troops could not be prosecuted before UK courts for war crimes they risked being tried by the International Criminal Court. That court has jurisdiction where member states are unwilling or unable to prosecute.
Responding to criticism that war crimes were still not exempted from the presumption against prosecution, Docherty argued that any more exceptions would “unnecessarily weaken the reassurance to service personnel and veterans”. On the other hand, he stressed, although the presumption against prosecution was a high threshold it was not an absolute bar. And there was nothing in the bill that stopped allegations being investigated.
The legislation requires prosecutors to apply the principle that it would be “exceptional” for a prosecution to be brought after more than five years. In following that principle, prosecutors must give “particular weight” to specified mitigating factors and the “public interest in finality”.
As I explained here last August, the presumption will apply to both to civilian and to military offences committed by the regular or the reserve forces. But there are exceptions. It won’t apply to prosecutions that have been started before the act is brought into force. It won’t protect troops charged with rape and some other sexual offences. It won’t apply to crimes against other service personnel or civilian contractors working for the UK government. It won’t apply to exercises abroad in which troops don’t face the threat of attack or violent resistance. And it won’t protect troops who served in Northern Ireland.
The bill was criticised before it had even been debated in parliament. The Equality and Human Rights Commission expressed concern that it “effectively introduces a two-tier system of accountability whereby certain war crimes or crimes against humanity may be prosecuted when they involve sexual offences but not when they involve murder or torture”.
Those concerns have been only partially met by the government’s concessions.
Northern Ireland
Docherty also announced yesterday that the Northern Ireland Office would be bringing forward a bill “soon” to protect veterans who had served in Northern Ireland during Operation Banner, which ran from 1969 to 2007.
The government later confirmed that there would be a reference to the bill in the Queen’s Speech on 11 May — though that does not mean that the government is ready for the bill to begin its parliamentary passage.
Any such legislation must be fraught with difficulties. There are differing views on whether a presumption against prosecution should apply to loyalist or republican paramilitaries in Northern Ireland — terrorists, as many people would see them — in the same way as it would to soldiers. It’s not clear whether Docherty meant to indicate any sort of equivalence when he said the bill, as well as protecting veterans, would “address the legacy of the troubles”.
Mercer had been planning to announce his resignation in the Commons yesterday but was sacked after he alerted Downing Street to his intentions. He had apparently wanted to stop the forthcoming trials of British army veterans in Northern Ireland.
Next week, two former members of the parachute regiment, known only as Soldier A and Soldier C and both in their 70s, are to go on trial for the murder of the Official IRA commander Joe McCann in Belfast in 1972. It is one of several such cases due to be heard this year.
A defence source quoted by the Guardian said it was unrealistic for Mercer to have expected the government to propose legislation that would halt current prosecutions.
Comment
My own view is that part 1 of the Overseas Operations (Service Personnel and Veterans) Act 2021, as it is to become, may achieve very little.
It could provide some comfort to troops serving overseas in future conflicts — but they would be much better off if they simply kept to the rules of engagement and the laws of war.
It might provide some sort of precedent for legislation protecting troops who served in Northern Ireland: you can already imagine ministers arguing that they should not be treated differently from service personnel who were deployed abroad. But I suspect the Northern Ireland bill won’t be debated in parliament while trials are under way, even though these cases will be tried without juries.
And, once those trials have been completed, the government’s approach to legislation may turn out to be very different.
*Update 30 April: Facing with the prospect of a further defeat in the House of Lords. the government added war crimes to the list of offences that are exempted from the presumption against prosecution. The Overseas Operations (Service Personnel and Veterans) Act 2021 was passed by parliament on 29 April 2021.
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Great post! Do you think the exceptionality test will circumvent the risk of referral to the ICC?
Surely the test of unwilling or unable to prosecute war crimes is met in that instance.