Written evidence from the All-Party Parliamentary Group on Drones (OOB0026)

The All-Party Parliamentary Group on Drones is a cross-party, cross-house group of parliamentarians that works on upholding parliamentary scrutiny of the UK’s use of drones and military force, its military assistance and partnerships, the protection of civilians in conflict and upholding the international rules-based order.

The bill as a whole does not provide a solution to the problem set out by HMG

In its attempt to rule out protracted investigations of troops, the bill only addresses a symptom and fails to address the deeper problem: flawed and inadequate investigations by the Ministry of Defence (MoD). Two fundamental shortcomings within the existing investigatory process delay timeliness of investigations and cause the protracted cases that the bill is trying to prevent: (1) investigators are not provided with all available evidence held by, and witnesses working in, the MoD, in a timely manner; and (2) the reality on the ground during protracted conflicts makes it difficult to immediately report allegations and conduct investigations.

The statutory presumption against prosecution

The statutory presumption against prosecution (clause 2) is unjustified because measures already exist for this purpose. The prosecutor, through the Full Code Test, already has the ability to take into account any injustice caused to defendants due to the time passed between alleged conduct and prosecution, as well as other measures specifically implemented to prevent illegitimate prosecutions, or those not in the public interest.1

Clause 2 is falsely justified on the premise that investigations and prosecutions are frequent. Available statistics prove otherwise: cases involving allegations in Iraq, for example, led to the prosecution of a handful soldiers, despite ‘civil courts and public inquiries having found extensive evidence of torture by UK forces in Iraq after 2003’ and millions of pounds paid by the Government to Iraqis who alleged abuse by UK forces.2 The bill also assumes that all previous investigations not resulting in criminal charges were lawful and complete; however, this is not the case. The European Court of Human Rights has found the UK in breach of its investigatory obligations in several cases in Northern Ireland3 and Iraq4, and the International Criminal Court (ICC) is conducting a preliminary examination into the

1 The Crown Prosecution Service is obligated to consider the suspect’s level of culpability and community impact, and already has the discretion not to bring charges against troops if they deem it not to be in the public interest; The Attorney-General’s consent is already required to commence proceedings to prosecute for torture (Criminal Justice Act 1988) or “grave breaches” of the Geneva Conventions (International Criminal Court Act 20115); Independent judges can strike out civil claims when there are “no reasonable grounds” for bringing the case, including vexatious or “obviously ill-founded” claims; There are already strong limitation periods on human rights claims, requiring cases to be brought within a year unless good reason can be shown as to why the claim was not brought sooner – a far shorter period than almost all other areas of law; When deciding whether to prosecute, prosecutors already consider concerns about any injustice caused to defendants due to the passing of time between an alleged conduct and prosecution,16 including: a) the evidence and whether it gives rise to a realistic prospect of conviction and b) public interest to prosecute. 2 Clive Baldwin, UK bill a License for Military Crimes? Law Would Stymie Prosecution of Armed Forces for Abuses, HRW, 2020; HRW, Pressure Point: The ICC’s Impact on National Justice Lessons from Colombia, Georgia, Guinea, and the United Kingdom, 3 May 2018; European Centre for Constitutional and Human Rights, War crimes by UK forces in Iraq: ICC urged to finally investigate detainee abuse. 3 Hugh Jordan v UK (App No 24746/94) 4 May 2001; McKerr v UK (App No 28883/95) 4 May 2001; Kelly v UK (App No 30054/96) 4 May 2001; Shanaghan v UK (App No 37715/97) 4 May 2001; Finucane v UK (App No 29178/95) 1 July 2003. 4 Al-Skeini and Others v UK (App No 55721/07) 7 July 2011. quality of UK investigations into alleged war crimes in Iraq.5 If enacted, this bill may trigger the ICC to conduct a full investigation.6

The bill’s provisions undermine notions of fairness and equality before the law, by creating a preferential legal regime that exempts troops from the law, at the expense of crucial public interests. Clause 3 requires the prosecutor to give weight to particular factors when deciding whether a case should be prosecuted. These only take into account the public interest in finality and lessened culpability at the complete expense of other vital factors in the public interest.7 Finally, the bill would subject troops to different legal frameworks depending on whether an alleged violation took place in the UK or overseas.

The bill violates the UK’s international legal and procedural obligations, including under the European Convention on Human Rights (ECHR) and the Rome Statute. UK obligations under the Geneva Convention, Additional Protocol I, the Convention against Torture and customary international law, require that torture, war crimes and crimes against humanity are effectively and swiftly investigated. A decision to forego investigations or prosecutions of meritorious claims on the basis of the ‘presumption against prosecution’ would put the UK in violation of its procedural obligations.8 Similarly, under the ECHR, the prohibition against torture is entirely non-derogable, and the right to life is only derogable in relation to lawful acts of war. If either is violated, derogating from the ECHR would not permit the UK to preclude or stop requisite investigations.

The bill undermines the protection of soldiers. The laws of war provide civilian protections, but also set out clear behavioural red lines. By contradicting existing UK commitments to international law, and diluting requirements for robust investigations, the bill undermines the legal basis on which conduct of all parties can be predicted, and discipline maintained. This lack of clarity creates dangerous legal ambiguities that provide the illusion of immunity, may erode commitment to professionalism and increase risk of prosecution.9

The bill sets a dangerous precedent that will likely encourage copycat behaviour by other States and make it harder to prosecute war criminals. If States introduce similar legislation justified by the bill, the UK would render itself unable to condemn such legislation or any unwillingness to investigate crimes.

The bill destroys victims’ rights to effective remedy. Victims of crimes during war face substantial barriers in reporting claims, including lack of effective and safe reporting mechanisms, and obstruction by both local law and by logistics. In protracted conflicts, this often results in claims being made long after the alleged abuse took place.”10 Whereas HMG

5 See, Report of the International Criminal Court to the United Nations General Assembly, UN Doc A/74/324, 23 August 2019 6 Judge Blackett in Lucy Fisher, Law to protect soldiers ‘could leave them facing war crimes tribunal’, The Times, 4 June 2020; separate APPG Drones interviews with Liberty, Ceasefire and Rights and Security UK, June 2020 7 This includes the public and military’s interest and benefit in maintaining the absolute prohibition against torture and other serious international crimes; the public’s interest in the military operating to the highest possible standard and accountability when it fails to do so; the public’s interest in victims’ right effective remedy and accountability. 8 Dr. Carla Ferstman and Dr. Obel Hansen, Written evidence, Defence Committee Inquiry on ‘Statute of limitations – veterans protection’, July 2018. 9 APPG Drones interview with Ceasefire, June 2020. has stated that the bill relates to ‘historical operations many years after original events’ - it is quite possible the relevant operation could still be active five, or even ten years after an incident. Judge Blackett has warned that the proposed time limitation: “would encourage an accused person to frustrate the progress of investigation past the five-year point to engage a high bar for prosecution.” This is significant considering UK courts found that the MoD caused delays in investigations on Iraq, subjecting all those involved to unfair treatment.11

Time limits

The five year time limit on criminal prosecutions is unreasonable and unjust. Considering the Full Code Test accounts for potential injustices concerning delayed prosecutions, the five year - or even a ten year12 - time limit is unjustified and arbitrary. Indeed, some of the most serious international crimes, such as torture, other war crimes and crimes against humanity are not legally subject to statutes of limitation at all.13 The bill would directly contravene rule 160 of the ICRC Study on Customary International Humanitarian Law, that states ‘statutes of limitations may not apply to war crimes’14.

The absolute six year limit for civil and human rights claims is unreasonable and counter-productive. Civil claims are an important mechanism by which soldiers and civilians alike can seek justice for wrongdoing caused by the MoD. Indeed, the overwhelming majority of civil claims (75.61%) relate to MoD breaches of duty of care to soldiers.15 The bill fails to consider the obstacles that prevent civilians from immediately reporting allegations during protracted conflicts that make absolute time limits inappropriate. Limitations on these claims would only shield the MoD from appropriate accountability.

Civil claims, particularly those brought under the Human Rights Act, have been crucial in identifying institutional short-comings and systemic flaws in MoD policy, providing the institution with opportunities to improve internal guidelines and structures to ensure it operates to the highest possible standard. For example, following civil litigation, the Baha Mousa inquiry noted that a ‘systemic failure over a number of years’16 led to inadequate captured persons training (including ‘a wholesale lack of MoD doctrine in interrogation’17).

10Alexandra Fowler, Proposed amendments to the Human Rights Act to disadvantage UK war crimes victims, Oxford Human Rights Hub, April 2020; The reality on the ground during protracted conflicts makes it difficult to immediately report allegations and conduct investigations. This was demonstrated in Iraq and Afghanistan, where some evidence only came to light once a semblance of stability returned. 11APPG Drones interview with Clive Baldwin, Senior legal Advisor, HRW, June 2020. 12 The original government consultation consulted on a 10 year limit. 13 A number of international treaties recognise the principle of the non-applicability of statutes of limitation covering core international crimes. This includes the 1968 UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity; the 1974 European Convention on the Non-Applicability of Statutory Limitations to Crimes against Humanity and War Crimes, and; the Rome Statute; Written evidence to Defence Committee Inquiry on ‘Statute of limitations – veterans protection’ submitted by Dr Carla Ferstman and Dr Thomas Obel Hansen. 14 Including under the Geneva Conventions; the Rome Statute (of the International Criminal Court); the Convention Against Torture; the European Convention on Human Rights, and; the International Covenant on Civil and Political Rights. More specifically, this includes the UK’s positive obligations under Arts 2 (right to life), 3 (prohibition of torture) of the ECHR, & Arts 6 (right to life), 7 (prohibition of torture or to cruel, inhuman or degrading treatment or punishment) of the ICCPR. Rights and Security International (formerly Rights Watch UK); Clive Baldwin, UK bill a License for Military Crimes? Law Would Stymie Prosecution of Armed Forces for Abuses, HRW, 20 March 2020. 15 Liberty’s briefing on the Overseas Operations (Services Personnel and Veterans) Bill for second reading in the House of Commons, April 2020. 16 The Baha Mousa Public Inquiry Report HC 1452-III, p.1334, no. 318. 17 Ibid. Considering that the Intelligence and Security Committee and Joint Committee on Human Rights have found the Government to provide inadequate information to their inquiries18, the ability to make a civil human rights claim and investigate the MoD is fundamental to the public interest, and vital for Parliamentary oversight.

Parliamentary scrutiny and the changing nature of war

Parliament has a unique obligation to scrutinise and hold to account HMG’s military decision-making and policy. This was emphasised by the Public Administration and Constitutional Affairs Committee’s Inquiry into Parliament’s role in the deployment of force, stating that ‘Britain’s growing military capabilities and commitments are far outpacing the existing procedures for parliamentary scrutiny and oversight.’19 Within this context, Parliament must consider what military operations look like today and in the future, and how to ensure adequate scrutiny.

In an evolving age of urban warfare, conflicts with non-state armed groups, increased reliance on aerial bombing campaigns, and increasingly automated weapons, this bill will increase pre-existing information and accountability gaps. The bill would undermine accountability even for grave breaches of the Geneva Conventions, including torture, and the indiscriminate killing of civilians. Furthermore, its scope reaches beyond HMG’s aim to address historic claims during armed conflict, covering all overseas deployments including non-combat roles and assistance20 - and all future claims. As a result, the bill will curtail the MoD’s ability to evaluate and improve its practices, and Parliament’s ability to scrutinise military activities.

The wide-scale changes proposed by the bill rests on the negative experience of a handful of soldiers. Statistics call into question the proportionality of this justification vis-a-vis the bill’s wider negative impact, a) on soldiers’ access to redress for injury or death caused on deployments overseas, b) the public interest in the truth, accountability and redress, and c) victims’ right to an effective remedy.

It is of the highest importance that legislation is passed that can contribute to uphold and strengthen the standards of the armed forces, and does not undermine existing oversight and scrutiny mechanisms. In order to future-proof our armed forces and ensure our institutional capabilities are at the highest standard possible, Parliament and the MoD should look to address the root causes of the problems set out by the bill - repeated cases and flawed investigations - not avoiding scrutiny.

11/09/2020

18 Intelligence and Security Committee, UK Lethal Drone Strikes in Syria, April 2017, p.8; Joint Committee on Human Rights, The Government’s policy on the use of drones for targeted killing, 10 May 2016, p. 25-7. 19 See also: PACAC: Parliament’s role in authorising the use of military force should be strengthened and Written evidence from the All- Party Parliamentary Group on Drones 20 Crucially, non-combat deployments and assistance to military partners are operations not reported to or approved by Parliament.