Overseas Operations (Service Personnel and Veterans) Bill

Baroness Deech Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 20th January 2021 Lords Chamber

[Baroness Deech (CB) [V]]

My Lords, this is a difficult subject: a complex Bill, which, despite its detractors, is not as bad from the perspective of human rights as it looks on first reading. Members of the Armed Forces should not be hounded for the rest of their lives, having acted to protect us in, and from, circumstances that most of us could never imagine, so I hesitate to pontificate on their actions.

However, there is a feeling of unfairness, given the perception that so many terrorists escape justice. Also, one’s instincts are that there should not be a statute of limitations for war crimes—I would be the first to say that Nazi criminals should be pursued and prosecuted for the rest of their lives—so it is worth considering whether to exclude all war crimes from the five-year regime.

The Bill will not prevent prosecution of serious allegations of torture which are supported by evidence, but filters prosecutions that take place after the lapse of five years. During those five years, all the usual rules for prosecutions apply, with no holds barred, and there is no guarantee of immunity from prosecution after five years. A judgment that it should happen might still be made if it is in the public interest and the evidence is sufficient, as well as other pertinent considerations. A similar limitation is present in Part 2, which imposes a six-year time limit on claims by service personnel injured through negligence during overseas operations. It might be better, in the alternative, to set up a scheme of no-fault compensation rather than putting the injured and their families through the court system.

The Bill emphasises the possibility of derogation from the European Convention on Human Rights in relation to overseas operations. That derogation should only ever be exceptional and should certainly not be normalised. It must be remembered that derogation can be challenged in our courts and in the Court of Human Rights. There are other situations in the law where the consent of the Attorney-General is required before prosecution; this is therefore not exceptional.

The important standard in all these discussions should be the law of the International Criminal Court. I posit that it should be avoided at all costs and that decisions and operations in scope of this Bill should be carried out in the shadow of the law—namely, the International Criminal Court’s jurisdiction. None of the largest states with the largest armed forces is party to the treaty of Rome which established the court—China, India, Russia and the US—with the honourable exception of this country, though the Government have rightly indicated that the court needs reform. The court was set up for war crimes, crimes against humanity and genocide. One has but to mention genocide to see how ineffective the court’s jurisdiction has been: too slow, too late, too retrospective and, some say, too Africa-focused.

However, once indicted, an individual’s reputation is gone for ever, even if subsequently cleared. The ICC has recently examined alleged crimes committed by UK nationals in the context of the Iraq conflict and occupation from 2003 to 2008, including murder and torture. After some six years of consideration, the court prosecutor said in December that, although it was reasonable to believe that crimes had been committed and command failures had occurred, the UK was genuinely willing to investigate them and to prosecute.

What should drive decisions to prosecute or not prosecute under this Bill is the standard laid down by the ICC—thoroughness and genuineness. Arguably, military investigations into incidents have been inadequate, insufficiently resourced, insufficiently independent and not done in a timely manner. Nevertheless, what the Bill should control are repeated investigations; it would be wise to restore the view of Lord Bingham, whose name is synonymous with the rule of law, that the Human Rights Act should not have extraterritorial application. Quality of decision-making rather than length of time should be the goal. I suggest that the Bill, once passed, should not start in operation until the investigation scheme has been reformed.