Outlawing 'Lawfare' or Limiting Rights? An Examination of the UK's Proposed Time Bar on War Crimes
Full Title: Outlawing 'Lawfare' or Limiting Rights? An Examination of the UK's Proposed Time Bar on War Crimes Proseuction
In our latest blog, Katie O’Leary, LLM student
at the School of Law University College Cork, examines how the UK’s proposed time bar on war crimes prosecution potentially infringes their obligations under international humanitarian and human rights law, and how more proportionate means are available to meet the objectives of the proposed time bar.
Katie O’Leary graduated from Trinity College Dublin in 2013 with a degree in Law and Political Science, and qualified as a solicitor in 2018 after training with the Law Society of Ireland. She is currently studying for an LLM in International Human Rights Law and Public Policy in UCC, and is on the roll of solicitors of Ireland, England and Wales.
The UK’s commitment to the international legal order has recently been called into question due to its departure from the EU and the controversy surrounding its Internal Market Bill. Although last month saw the election of a British barrister as the next chief prosecutor of the International Criminal Court, a recent legal development indicates the UK’s relationship with international criminal law is no exception to the general trend. If enacted in its current form, the Overseas Operations (Service Personnel and Veterans) Bill (the ‘Bill’) would create a five-year statutory limitation on the prosecution of war crimes in a move that critics including the UN and the International Committee of the Red Cross (‘ICRC’) claim would infringe the UK’s obligations under international humanitarian and human rights law. For the reasons set out in this article, it appears that the proposal would infringe aspects of both legal frameworks,
and that more proportionate means are available to meet the Bill’s objectives.
Key elements of the Bill
Part 1 of the Overseas Operations Bill contains a presumption against prosecuting war crimes if five years have elapsed from the date of the offence, by stating that it is to be ‘exceptional’ for a prosecutor to take or continue proceedings against a member of the armed forces for ‘relevant offences’ after the expiration of that time limit. ‘Relevant offences’ are those that took place on an overseas operation and include unlawful killing and torture, although offences of a sexual nature are excluded from the definition.
While this article focuses on the five-year limitation period, it is worth noting that two additional pre-conditions to war crimes prosecutions are set out in the Bill: particular weight must be given by prosecutors to certain matters. Also, the prior consent of the Attorney General must be obtained. Together, the three restrictions have been called a ‘triple lock.’ The Bill also sets out restrictions on civil claims arising from war crimes.
International Humanitarian Law
The UK is a party to the Geneva Conventions, which require states to bring individuals who commit war crimes, including unlawful killing and torture, before their courts. The ICRC, an organisation that has contributed significantly to the creation of international humanitarian law, has said statutory limitations could amount to violations of that obligation to prosecute. That organisation has also identified ‘statutory limitations may not apply to war crimes’ as a rule of customary international law. Evidence for that rule includes multilateral co
nventions, military manuals and legislation from across the globe. Its justification is easy to see: war crimes are jus cogens crimes – their commission goes against an overriding principle of international law; prosecuting those crimes acknowledges their severity and deters their commission; and as the site of their commission makes it difficult to gather evidence and interview witnesses, limitation periods could result in prosecutions never being brought.
Therefore, a five-year statutory limitation could lead to the UK falling afoul of their obligations under the Geneva Conventions. It would also breach the rule that statutory limitations may not apply to war crimes: a rule that the UK’s own practice supports, as evidenced by comments made by its delegation before the UN. Moreover, the measure could also have the consequence that jurisdiction for prosecution of UK service personnel accused of war crimes would default to the ICC on the expiry of the five-year period.
International Human Rights Law
The rights to life and to be free from torture are protected by various international human rights treaties to which the UK is a party, including the ICCPR, the CAT and the ECHR. States are required to protect those rights vis-à-vis anyone under their effective control, including the control of their armed forces. States are also required to protect those rights by prosecuting individuals who violate them. Finally, short statutory limitation periods can be impediments to the realisation of that duty.
The Ministry of Defence published a memorandum that analyses the interaction between the Bill and the ECHR, which concludes that the Bill would not breach the rights to life or to be free from torture in Articles 2 or 3 of the ECHR. This conclusion seems based on an incomplete analysis of case law; the European Court of Human Rights has held that a statutory limitation period in combination with an ineffective investigation can lead to a breach of Article 2. More generally, the Strasbourg Court has found that states are required to ensure effective protection for the rights in Articles 2 and 3 through effective investigations and prosecutions, and that amnesties can amount violations of that right.
Thus, a five-year statutory limitation on war crimes prosecution appears to flout the UK’s treaty obligations to protect the rights to life and to be free from torture, rights that cannot be derogated from or restricted by states. The short statutory limitation violates the obligation to p
rosecute, and could effectively create an amnesty for war criminals.
More Proportionate Means?
The Bill’s stated purpose is to address the problem of ‘lawfare’, or ‘the judicialisation of armed conflict’; UK service personnel have allegedly endured a wave of vexatious claims arising from operations in Iraq and Afghanistan, including some that were ultimately discredited. A public consultation was carried out in 2019 on the Bill’s proposed measures. 89% of respondents agreed ‘change is needed 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.’ 90% of respondents were current or former service personnel or their relatives. Respondents were not classified under any other criteria; it is not clear whether any actual or alleged victims of war crimes submitted responses.
Delays in prosecuting historical war crimes claims undoubtedly result in stress. However, the severity of war crimes is internationally recognised, and there are evidential difficulties in bringing them to trial. The latter fact is acknowledged even by the UK Government; it has stated, ‘war crimes present a range of [unique] challenges for investigators.’ The older the case, the more legitimate it may become to decide not to prosecute, particularly if memories
have faded and evidence is scant. A blanket five-year cut-off seems an arbitrary way of addressing those issues; a more proportionate measure would see prosecutors required to consider whether the passage of time has prejudiced a defendant or the possibility of a fair trial.
Eliminating prosecutions that are truly vexatious is a justifiable aim; little is to be gained from dragging baseless claims through a justice system. However, a time bar is unnecessary to thwart vexatious claims. Indeed, the Bill separately addresses this issue to an extent: it prohibits prosecutions where there was a previous investigation of the relevant offence and no new evidence has come to light. Other measures, such as prosecutorial discretion, can be used to filter unmeritorious allegations, too. Under existing prosecutorial guidelines, a multi-stage test must be employed by Crown prosecutors before bringing any prosecution; relevantly, ‘prosecutors must [normally] be satisfied that there is sufficient evidence to provide a realistic prospect of conviction.’ If these guidelines are not considered effective, perhaps they could be moved to a statutory footing, or some other step could be taken to legislate against vexatious claims in a more general sense than the Bill already does.
Without endorsing these approaches per se, this analysis shows the existence of alternative and less intrusive mechanisms to address the Bill’s aims. If they were adopted, they should be applied in a manner that respects international law, and prosecutions should only be halted if there is a genuine issue with the merits of the case.
A short statutory limitation on war crimes shows disregard for the UK’s obligations under international humanitarian and human rights law, and exemplifies a concerning tre
nd in that nation’s respect for international norms. Moreover, the limitation period appears unnecessary to achieve the Bill’s aims, and could have the consequence that veterans would be brought before the ICC in place of domestic courts. It is therefore disappointing to see that the Bill has now passed the House of Commons, and that more proportionate measures are not being considered to address the aims pursued.
 ‘Karim Khan: UK Lawyer Elected Chief Prosecutor at ICC’ (BBC, 13 February 2021) <https://www.bbc.com/news/uk-56051110#:~:text=A%20leading%20British%20barrister%20has,Islamic%20State%20group%20in%20Iraq> accessed 4 April 2021.
 Overseas Operations (Service Personnel and Veterans) HL Bill (2019-21) 147 cls 1 and 2 (The Bill); ‘UK Parliament Must Not Introduce Impunity for War Crimes, ZSy UN Experts’ (Office of the High Commissioner of Human Rights, 5 October 2020) <https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=26342&LangID=E>, accessed 11 November 2020; ‘Written Evidence Submitted by the International Committee of the Red Cross’ (ICRC Regional Delegation for the UK & Ireland, October 2020) <https://publications.parliament.uk/pa/cm5801/cmpublic/OverseasOperations/memo/OOB04.htm>, accessed 4 April 2021; Academics have also argued that the legislation w
ould infringe the UK’s own constitution, see Samuel Beswick, ‘Written Evidence Submission by Assistant Professor Samuel Beswick, LLM and SD (Harvard), LLB (Hons) and BCom (Auckland)’ (Peter A Allard School of Law, 12 October 2020) <https://publications.parliament.uk/pa/cm5801/cmpublic/OverseasOperations/memo/OOB06.pdf>, accessed 4 April 2021.
 The Bill (n 2) cl 2, cls 1(2)(a) and (b), cl 1(3), and cl 4; See also cl 5 in relation to alleged offences taking place over a period of days.
 ibid cl 1(2); See also cl 6 for a full definition of ‘relevant offence’, cl 1(3), ibid cl 6 and pt 1 of sch 1.
 ibid cls 3(1) and 3(2).
 ibid cls 5(2) and 5(3).
 Ministry of Defence, Consultation on Legal Protections for Armed Forces Personnel and Veterans serving in operations outside the United Kingdom Ministry of Defence Analysis and Response (2020) 3 (Bill Consultation Report).
 The Bill (n 2) pt 2.
 ‘Treaties, States Parties and Commentaries’ (ICRC) <https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/vwTreatiesByCountrySelected.xsp?xp_countrySelected=GB> accessed 4 April 2021.
 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 3, arts 49 and 50; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 85, arts 50 and 51; Geneva Convention Relative to the Treatment of Prisoners of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 135, arts 129 and 130; Geneva Convention Relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287, arts 146 and 147.
Christian Walter, ‘Subjects of International Law’, Max Planck Encyclopedia of Public International Law (Oxford University Press 2007) para 7 <https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1476> accessed 4 April 2021; ICRC, ‘Rule 160. Statutes of Limitation’ (IHL Database Customary IHL) <https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule160> accessed 4 April 2021.
 Mahmoud Cherif Bassiouni, ‘International Crimes: “Jus Cogens” and “Obligatio Erga Omnes”’ (1996) 59 (4) Law and Contemporary Problems 63, 68; HM Government, ‘Note on the Investigation and Prosecution of Crimes of Universal Jurisdiction’ (2018) 12
<https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/709126/universal-jurisdiction-note-web.pdf> accessed 4 April 2021 (Note on the Investigation).
 ICRC, ‘Practice Relating to Rule 160. Statutes of Limitation’, (IHL Database Customary IHL), <https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule160> accessed 4 April 2021.
 Rome Statute of the International Criminal Court (International Criminal Court 2010) (adopted 17 July 1998, entered into force 1 July 2002) ISBN No 92-9227-227-6, art 15.
 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR), arts 6 and 7.; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85 (CAT) art 2; European Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953) ETS 5 (ECHR) arts 2 and 3.
 Human Rights Committee ‘General Comment No 31  the Nature of the General Legal Obligations Imposed on States Parties to the Covenant’ (26 May 2004) CCPR/C/21/Rev1/Add 13 (General Comment 31) para 10; Loizidou v Turkey App no 15318/89 (ECtHR, 23 March 1995).
 General Comment 31 (n 18), para 18; CAT (n 19) art 4; Öneryildiz v Turkey App no 48939/99 (ECtHR, 30 November 2004) (Öneryildiz).
 General Comment 31 (n 18) para 18; Association ‘21 December 1989’ and Others v Romania App no 33810/07 (ECtHR, 24 May 2011) (Association 21).
 Ministry of Defence, ‘Overseas Operations (Service Personnel and Veterans) Bill European Convention on Human Rights’
<https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/920358/ECHR_Memo_-_OO_SPV__Bill_-_FINAL.pdf> accessed 4 April 2021, paras 7, 9.
Association 21 (n 20). See also European Court of Human Rights, ‘Guide on Article 2 of the European Convention on Human Rights Right to Life’ (31 August 2020) <https://www.echr.coe.int/Documents/Guide_Art_2_ENG.pdf> accessed 4 April 2021, para 169.
 Öneryildiz (n 19); Association 21 (n 20).
 Marguš v Croatia App no 4455/10 (ECHR, 27 May 2014).
 ICCPR (n 17) arts 4 and 5; ECHR (n 17) art 17.
 Overseas Operations (Service Personnel and Veterans) HL Bill (2019-21) 147 (Explanatory Notes) para 6.
 ibid para 10.
 Bill Consultation Report (n 7).
 ibid 7.
 ibid 6.
 Note on the Investigation (n 14) 12.
 An amendment to this effect was proposed but not included in the version of the Bill approved by the House of Commons on 4 November 2020, See ‘Consideration of Bill (Report Stage) (3 November 2020) 3 <https://publications.parliament.uk/pa/bills/cbill/58-01/0117/amend/overseasops_day_rep_1102.pdf> accessed 4 April 2021.
 The Bill (n 2) cl 3(2)(b).
 Crown Prosecution Service ‘The Code for Crown Prosecutors’ (26 October 2018) https://www.cps.gov.uk/publication/code-crown-prosecutors> accessed 4 April 2021. To prosecute a crime, prosecutors must normally satisfy the Full Code Test, which includes the quoted provision. In exceptional cases a Threshold Test is applied, which is why the word ‘normally’ has been included in square brackets in the quoted text.