Max McGiffen: Is the Military Above the Law? A Comment on the Overseas Operations Bill

As I write this, the Overseas Operations (Service Personnel and Veterans) Bill is on its way to receive Royal Assent. The key aim of this Bill is protect veterans from prosecution. This is accomplished through a couple of legislative provisions: (a) under section 1(4), a presumption that alleged offences were committed more than five years ago, they should not be prosecuted (b) under section 5(2), that no proceedings may be instituted against the person for the offence except with the consent of the Attorney General.

The Bill has already attracted controversy, with commentators claiming that it couldfly in the face of international legal norms“. An unusual coalition of retired military leaders and human rights lawyers have led the critique. Field Marshal Lord Guthrie, former Chief of the Defence Staff, has criticised the Bill for de facto decriminalisation of torture. The Parliamentary Joint Committee on Human Rights concluded that “the bill breaches the UK’s international legal obligations under international humanitarian law, human rights law and international criminal law.” 

This raises the question that this article will explore: Does the Overseas Operations Bill aim to place the military above the law?

The Case Against the Overseas Operations Bill

Amnesty International poignantly argues that “Torture is still torture if it took place five years ago. War crimes are still war crimes if they took place five years ago.” They make the point that the Bill could be in breach of international law. Zeffman, for the Oxford Human Rights Hub, argues similarly that the Bill’s provisions breach Article 29 of the Rome Statute, which provides that “the crimes within the jurisdiction of the [International Criminal] Court shall not be subject to any statute of limitations”, and Articles 2 and 3 of the European Convention on Human Rights (‘the ECHR’), which guarantee the right to life and prohibit torture, respectively.

The Case For the Overseas Operations Bill

An important point can be raised as to where the Overseas Operations Bill will place in the current government’s legislative repertoire. Is this a sign of a growing trend in the executive, as seen in the row over the Internal Market Act 2020, to disregard the norms of international law? Does the executive have legitimate power to do so? Defenders of the traditional, Diceyan conception of Parliamentary Sovereignty would argue that “no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament”1. On this analysis, the Overseas Operation Bill is entirely legal, and concerns about the breach of the Rome Statute are misguided.

Some Conclusions

One can debate the morality of a Bill that subjects torture to a statute of limitations, but its legality seems to be settled. This is especially with the re-emphasis on Parliamentary Sovereignty caused by the United Kingdom leaving the European Union. On a more practical note, however, if the United Kingdom wishes to keep credibility on the international stage, especially through enforcement of Magnitsky sanctions, it cannot do so by violating the obligations of treaties to which it is a signatory.

Footnotes:

  1.  A V Dicey, An Introduction to the Study of the Law of the Constitution (first published 1885), 10th edn, 1959, London: Macmillan, pp 39–40

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