The Presumption Against Prosecution

The Bill aims to address both ‘vexatious claims and prosecution of historical events, that occurred in the uniquely complex environment of armed conflict overseas’ and ‘the unforeseen expansion of the European Convention […] to cover overseas military operations where the UK had assumed that international humanitarian law had primacy.’

The presumption against prosecution for certain offences—seemingly aimed at addressing these ‘vexatious claims’—is not absolute, but it would be protected by a triple lock. First, it is to be ‘exceptional’ for a prosecutor to bring proceedings after the five-year time lapse. Second, the prosecutor must give particular weight to certain matters in an exceptional decision to prosecute, such as the demands of overseas military operations, and the adverse effects that deployment on such operations can have on service personnel, including on their capacity to make sound decisions and their mental health. Third, the Attorney General would have to consent to the prosecution.

The Bill, under schedule 1, excludes sexual offences from this presumption against prosecution. This is welcome, although some have questioned whether sexual offences have been excluded in good faith. In both Houses of Parliament, amendments have been tabled to also exclude torture and other grave crimes from the presumption against prosecution.

The Bill has also been criticised for accounting for the demands and stresses of deployment overseas, and the deletion of this clause has been tabled as an amendment in the House of Lords. The clause suggests that prosecutable acts should be contextualised, a logic of justification: as the Joint Committee on Human Rights has observed, ‘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’.

Described as ‘cranky anger turned into law’, the Bill is indeed a bad-tempered response to years of allegations, investigations and findings of torture and abuse, particularly in Iraq. But this Bill has been brewing for some time. It is another round in the Conservative government’s fight against what they characterise as the ‘mission creep’ of European human rights law and judicial overreach. The Bill is also characterised by a dynamic of difference between UK armed forces personnel and overseas victims of UK crimes. The Bill, as such, is better understood as ideology turned into law.

The Fog of Conservative Ideology

At the 2016 Conservative Party Conference, Theresa May confirmed then Defence Secretary Michael Fallon’s commitment to exempt the UK from parts of the European Convention and to protect armed troops from so-called vexatious claims. May promised: ‘We will never again—in any future conflict—let those activist left-wing human rights lawyers harangue and harass the bravest of the brave, the men and women of our armed forces.’

In an interview in 2016, Conservative party MP Tom Tugendhat, one of the Bill’s strong supporters, applauded Fallon and May and repeated the now pervasive account of the unscrupulous lawyers acting on behalf of unscrupulous victims:

[T]he Iraq Historic Allegations Team […] was effectively various lawyers using legal aid money to look for victims, victims in inverted commas, because as we now know, some of the victims were in fact Iraqi militia members who having tried and failed to kill British troops in battle, then decided the appropriate next step was to sue them.

Tugendhat, after leaving the army in 2013, and before becoming an MP, co-authored a couple of pamphlets, ‘The Fog of Law’ (2013) and ‘Clearing the Fog of Law’ (2016), for the right-wing think tank Policy Exchange, criticising, in particular, the extension of human rights to the battlefield and ‘judicial imperialism’. The reports’ recommendations included derogation from the European Convention ‘during deployed operations’ and other exemptions both from legal scrutiny and from legal recourse for armed forces personnel. These recommendations are reflected in the Bill.

The influence of Tugendhat’s co-authored reports was such that Alex Carlile cited ‘The Fog of Law’ as the root of the Bill during its second reading in the House of Lords. Tugendhat also cited himself and his co-authors in the House of Commons, to declare his interest and to stymie a query.

In ‘The Fog’, Tugendhat and Croft suggested, in a xenophobic tone, that ‘legal aid should be removed from lawsuits brought by non-UK persons against HM government’, to secure against the ‘potential for vexatious claims’. Since the Al Sweady Inquiry, and throughout the Bill debates, this language of ‘vexatious claims’ has thrived.

In the House of Commons, Conservative parliamentarian after parliamentarian emphasised the British army as a force for good in the world, pitting them against activist lawyers and their troublemaker clients. There is a concerted effort in the discourse on human rights abuses in Iraq to, as Hearty has argued, redirect and recreate the narrative away from the allegations of ill-treatment, towards profiteering lawyers and disreputable victims. Opening the second reading of the Bill, Ben Wallace set the tone:

The men and women of our armed forces are some of the most professional and capable people this country has. They risk their lives to keep us safe, uphold our values and support society whenever the call comes. […]

In 2004, Phil Shiner, a lawyer, went fishing. He fished for stories, he fished for victims and he fished for terrorists. […] What mattered to the ambulance chasers was the money – the legal aid income, the commissions on compensation claims.

Wallace characterises the Bill as a clash between the honourable armed forces and terrorists or profiteers.

Turning the Tables on Lawyers and Victims

The Al Sweady Inquiry, which reported in 2014, was established to investigate allegations of unlawful killing and ill-treatment against nine men in British army custody, following the so-called ‘Battle of Danny Boy’ near the town of Al Majar al’Kabir in 2004. It found that ‘certain aspects’ of the treatment of the men ‘amounted to actual or possible ill-treatment’, but ‘the vast majority of the allegations made […] were wholly and entirely without merit or justification.’ It also determined that some witness evidence had been ‘unprincipled in the extreme and wholly without regard for the truth’. The government accused the law firms, representing the witnesses, of breaches of professional ethics. Ministry of Defence investigations resulted in Phil Shiner, of Public Interest Lawyers, being struck off the roll of solicitors for misconduct. This dominated the headlines. The determinations of ill-treatment and the further evidence of use of the ‘five techniques’ drifted into the background.

The Iraq Historical Allegations Team (IHAT), established in 2010 to conduct criminal investigations into allegations of abuse in Iraq, was prematurely closed in early 2017. IHAT was criticised for several failings, including delays, inaccessibility, and incapacity to deal with systemic issues. But it was the political and media critique of IHAT ‘for giving excessive credence to the claims made and pursuing investigations of ex-service people in reportedly intrusive ways’ which proved fatal. No prosecutions resulted from the Team.

Despite overwhelming evidence of systemic abuse, then, it is criticism of the lawyers and the victims that has come to dominate in political circles. This has not gone unnoticed. In its December 2020 report, the Office of the Prosecutor of the International Criminal Court (ICC) observed of the government’s criticisms of IHAT, on the back of the Al-Sweady findings, that ‘statements appear to considerably exaggerate or misstate those findings. […] It appears disingenuous to describe the entire body of claims, involving hundreds of claimants, as baseless or spurious.’ The ICC report went on to remark that the government had also overlooked the numerous other claims of abuse that ‘have been accepted by UK courts,’ as well as ‘the Baha Mousa Inquiry, the various [Iraq Fatality Investigations], and a significant volume of compensation awards at the civil law standard have been settled out of court by the MoD.’

The ICC and the Overseas Operations Bill

In the same report, the ICC Prosecutor determined that there is ‘a reasonable basis to believe that various forms of abuse were committed by members of British forces against Iraqi civilians in detention. This includes the war crimes of murder, torture, rape and/or other forms of sexual violence, and forms of mistreatment amounting to inhumane and cruel treatment or outrages against personal dignity.’ In spite of this heady finding, the ICC closed its preliminary examination on the basis that, under Article 17 of the Rome Statute, the Office could not conclude that that ‘the UK authorities have been unwilling genuinely to carry out relevant investigative inquiries and/or prosecutions.’ Yet the report is littered with concerns as to the ‘deficiencies of the domestic process’.

The Prosecutor’s decision is ambiguous. In a watery warning to the UK government, the Office also raised concerns about the Overseas Operations Bill:

[T]he Office views with particular concern the possible passage of legislation that could effectively provide an amnesty to current and former service personnel for allegations arising from Iraq. The Office will study the future impact of such legislation, if passed, in order to consider whether the re-opening of the preliminary examination is warranted on the basis of the State’s unwillingness or inability to pursue relevant lines of criminal inquiry genuinely.

With that warning, the UK seems to have been let off another hook, in the face of overwhelming evidence of systematic abuse by the British armed forces in Iraq and in the face of the reality of systemic failings in the UK’s investigative process.

‘Racist Overtones’ and the Waning Stigma of Torture

The Bill has been criticised as the wrong solution to the wrong problem. The real problem is one of inadequate investigations. Since the Bill does not address poor quality and slow-paced investigations, it is unfit for its purpose. The Joint Committee on Human Rights suspects the Government of ‘effectively using the existence of inadequate investigations as a reason to legislate to bring in further barriers to bringing prosecutions or to providing justice for victims.’ But this concedes too much. The existing barriers to prosecution are practically impenetrable. Only one member of the armed forces has been prosecuted in the UK for war crimes in Iraq. So how then can we understand this Bill?

The Bill needs to be understood as an expression of racialised nationalism. It differentiates explicitly between the British armed forces and foreign combatants and civilians. Before the Joint Committee on Human Rights, Katherine Willterton, Head of the MoD legal adviser’s General Law Team, stated that offences against civilians would be subject to the presumption against prosecution whereas offences against fellow members of the Armed Forces would not, because

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.

Objecting to the ‘racist overtones’ of the Bill, the Joint Committee dismissed the acceptability of offences ‘depending on the nationality or employment status of the victim’.

Willterton’s explanation reveals the political mainstreaming of imperial ideology. Underlying this Bill is an imperial position: that the UK armed forces should be unscrutinised in their actions abroad. This is not about licencing torture, as such. Torture and other abuses are baked into UK practice. Rather, the Bill seeks to close down avenues to review state crimes that the government considers acceptable or understandable.

This Bill should also remind us that we are still in the post-9/11 political atmosphere. After 9/11, public and academic debates about the justifiability of torture became rife in the United States – less so in the UK. Yet such justificatory reasoning underpins this Bill. Concluding the second reading of the Bill before the House of Lords, Annabel Goldie echoed Wallace and revealed the UK’s thinking with precision. In trying to explain why sexual offences are excluded but torture is not, Goldie found herself admitting that service personnel may be expected to undertake violent activity, like torture:

The UK Government unreservedly condemn the use of torture and remain committed to their obligations under international humanitarian and human rights law. […] We have not excluded torture offences because this goes right to the heart of the environment of overseas operations: what we call on our personnel to do when they are required to serve in that arena. In the course of their duties on overseas operations, we expect our service personnel to undertake activities which are intrinsically violent in nature. These activities can expose service personnel to the possibility that their actions may result in allegations of torture. By contrast, although allegations of sexual offences can still arise, the activities we expect our service personnel to undertake on operations overseas cannot possibly include those of a sexual nature.

The government remains committed to the abstract prohibition on torture – but it wants to torture, too.

There is a reason, then, that torture has been the focus of much of the criticism of this Bill. While successive British governments have concealed and denied the practice of torture, they have also maintained their normative commitment to the absolute ban. With the Overseas Operations Bill, the thinnest semantics of commitment remain, but the Bill represents a shift away from the painstaking avoidance of explicit interference with the legal norm. Moreover, the language in which the Bill has been debated implies the waning stigma of torture.

In the best case scenario, the proposed amendments will succeed so that torture and other international crimes will be excluded from the presumption against prosecution. But such a victory does nothing to deal with the reality of torture practices – nor does it respond to this increasingly open acceptance of torture in this racialised context. We have learned from two decades of experience in counter-terrorism that the legalist approach of the human rights community is not well equipped for this political fight.

Brenda Hale’s recent review of Nigel Biggar’s book illustrates this point well. Biggar, Director of the McDonald Centre, and known for his reactionary project ‘to develop a nuanced and historically intelligent Christian ethic of empire’, has perhaps unsurprisingly flirted with torture legitimation, and embraced ‘ticking bomb’ logic, both in the media and in his academic work. He is also plugged into Conservative circles: Policy Exchange launched Biggar’s book in December, and his writing is influenced by ‘The Fog of Law’. But Hale not only failed to take him to task on his embrace of the ticking bomb justification – she seemed to endorse the construct.

Taking torture as an example, he concludes that there should always be an absolute legal right against torture, even though in rare cases (the ticking bomb example) the non-consensual infliction of pain might be morally permissible and thus deserving of lesser sanction: a conclusion virtually identical to that reached by the Supreme Court of Israel.

The Israeli Supreme Court used ticking bomb logic to legitimate a policy of torture that remains in place today. Hale fails to see torture as a state crime, seduced as she is, first, by the strength and virtue of the human rights norm and, second, by this racialised ticking bomb construct.

Labour, under Keir Starmer, has also hamstrung both its legal and political opposition to the Bill. Failing to muster even the easiest of human rights arguments against the Bill, they not only abstained in the September vote, but MPs who defied the whip were sacked.  In abstaining, as Shami Chakrabarti has put it, Labour conceded to the political atmosphere and to the attack on rights. Indeed, Labour’s turn to patriotism suggests they are unable to counter this atmosphere of racialised nationalism and imperial ideology.