Written evidence from Françoise Hampson OBE (OOB011)

Submission by Françoise Hampson OBE, Professor Emeritus, Human Rights Centre & Law School, University of Essex, in response to the call for evidence by the Joint Committee on Human Rights.

  1. This submission addresses three issues relating to the presumption of non-prosecution in the Bill: the obligations of the United Kingdom (UK) under international humanitarian law (IHL), international criminal law (ICL) and international human rights law (HRsL); identifying the real problem which needs to be addressed and how to address the real issue.

 

Obligations of the UK under IHL

  1. I have read the submission of Elizabeth Wilmshurst and agree with all her comments about IHL and ICL. I will add two points about IHL. In addition to the obligation to bring suspected perpetrators of “grave breaches” of the Geneva Conventions to trial, State have an obligation to suppress all violations of the Geneva Conventions, other than “grave breaches”. This includes violations of common Article 3 of the Geneva Conventions, which is applicable in non-international armed conflicts (NIACs).
  2. The obligation to “ensure respect”[1] means that States also have an obligation to prevent violations of IHL. If the UK believes that, under stress, its armed forces might violate IHL[2], it is under an obligation not to deploy them or to withdraw them from the theatre.[3]
  3. Maintaining control over forces in stressful situations is a function of command. The existence of legal rules effectively enforced is an important tool of command and control and also affects the likelihood of success of the military operation.

 

 

 

 

 

 

Obligations of the UK under HRsL

  1. In 2003, the UN Commission of Human Rights, composed of the representatives of States, up-dated the Joinet principles on impunity.[4] The up-dated principles include an obligation to combat impunity and to undertake prompt, thorough, independent and impartial investigation into alleged violations.[5]
  2. The Council of Europe Steering Committee for Human Rights, composed of the representatives of States, has produced Guidelines on Eradicating Impunity for Serious Human Rights Violations.[6] They provide that States should adopt criminal law provisions to punish effectively serious human rights violations in a coherent and non-discriminatory manner and show zero tolerance for such violations.
  3. There is a considerable body of case-law from the European Court of Human Rights over twenty five years on the need for a prompt, thorough, independent and impartial investigation and, where appropriate, criminal proceedings in the case of alleged unlawful killings, ill-treatment and unlawful detention. A distinction needs to be made between whether there is an obligation to investigate, what has to be investigated and how the investigation is to be carried out.
  4. Even in situations of emergency[7] or armed conflict[8], there is an obligation to investigate possible violations of Articles 2, 3 and 5.[9]
  5. What has to be investigated remains the same in peace as in armed conflict: the possible violation of HRsL by the State. In determining the scope of a HRs norm, the European Court of Human Rights can take account of IHL, provided it has been invoked by the State and, at least in the case of NIACs, a derogation has been submitted.[10]  The scope of the investigation includes possible criminal offences but is much wider.[11]
  6. A difference exists in how an alleged violation is investigated in peacetime and emergency/armed conflict. The Court takes account of practical difficulties.[12]
  7. The presumption against prosecution after five years may have a deterrent effect on the RMP even opening an investigation.
  8. Any presumption against prosecution is not consistent with the UK’s HRs obligations.

 

Discrimination and IHL and HRsL

  1. Discriminatory treatment is prohibited under both IHL and HRsL. Discrimination includes prosecuting foreign or allied forces where a member of the British armed forces would not be prosecuted. A recent example illustrates the issue. On 27 August police in London arrested a Liberian on suspicion of war crimes arising out of the armed conflicts between 1989-2003.[13]

 

The real problem

  1. The armed forces have two principal concerns: being judged in the light of inappropriate legal standards by people who understand neither the armed forces nor the situations in which they find themselves and being judged years after the event.
  2. A separate issue concerns the need to investigate possible violations of IHL not involving individual criminal responsibility.[14] The commitment to suppress all violations of IHL and the obligation to combat impunity also apply to this type of obligation.
  3. The Gage Inquiry into the death of Baha Mousa and Sir Thane Forbes’ Inquiry into the Al-Sweady affair were the result of flawed investigations at the time into the relevant events and the inability of the MOD to retrieve documents, which gave the appearance of a cover-up.[15]
  4. The real problem is the lack of prompt, thorough, independent and impartial investigations at the time. If that were addressed, there would be no need to violate the UK’s legal obligations by introducing a presumption against prosecution.

 

How to address the real problem

  1. The first concern of the armed forces can be addressed by ensuring that investigations are carried out by the RMP and that any subsequent criminal proceedings are conducted by court martial.
  2. What is needed is the overhaul of the rules, procedures and practices regarding investigations by the Royal Military Police (RMP).[16] That should include:
  1. There is a real problem, not confined to the armed forces, where small groups, dependent on one another in a dangerous situation, cover up for the acts of an individual in the group. The changes suggested above would not solve this problem but the members of the group would be committing an offence in not reporting the crime and co-operating with the investigation. Information sometimes becomes available at a later date.[18] It would be wholly inappropriate if members of the armed forces were rewarded for lying by a presumption against prosecution.
  2. The separate issue of alleged violations of IHL by the State needs to be addressed in a different way.[19]
  3. In creating a presumption of non-prosecution, the Bill is in breach of a range of UK legal obligations, exposes members of the armed forces to the risk of prosecution at the International Criminal Court, severely reduces the effectiveness of an important tool of command and control and prejudices the effectiveness of military operations.

 

09/09/2020

 

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[1] Common Article 1 of the Geneva Conventions.

[2] The implication behind clause 3 paras. 2-4 of the Bill.

[3] An example of the type of case to which the provision might apply is the case of Sergeant Blackman.

[4] Set of Principles for the protection and promotion of human rights through action to combat impunity produced by the Sub-Commission on the Promotion and Protection of Human Rights (E/CN.4/Sub.2/1997/20/Rev.1, annex II).

[5] Report of the independent expert to update the Set of principles to combat impunity, Diane Orentlicher, E/CN.4/2005/102/Add.1, Principles 1 & 19.

[6] https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=0900001680695d6e

[7] Yaşa v. Turkey (no. 22495/93), judgment of 2 September 1998, para. 104.

[8] Al-Skeini v. UK (no. 55721/07), judgment of 7 July 2011

[9] Where a killing is obviously lawful, there is no need to investigate but the State still needs to be able to establish that it was obviously lawful.

[10] Hassan v. UK (no 20750/09), judgment of 16 September 2014.

[11] It includes training, ROE, the planning of the operation, precautionary measures; McCann & others v. UK (no.18984/91), judgment of 27 September 1995.

[12] Al Skeini, note 9, paras. 161-7.

[13] https://www.theguardian.pe.ca/news/world/uk-police-arrest-man-over-alleged-liberian-war-crimes-489839/

[14] Examples include the failure to take precautions and launching a disproportionate attack in a NIAC..

[15] The Report of the Baha Mousa Inquiry, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/279190/1452_i.pdf; The Al-Sweady Inquiry report, https://www.gov.uk/government/publications/al-sweady-inquiry-report. A range of other issues of concern were established, such as the lack of knowledge of those responsible for training interrogators of techniques which had been banned by HMG.

[16] See generally Geneva Academy, Guidelines on Investigating Violations of International Humanitarian Law: Law, Policy and Good Practice, https://www.geneva-academy.ch/joomlatools-files/docman-files/Guidelines%20on%20Investigating%20Violations%20of%20IHL.pdf

[17] The RMP needs not only to be formally independent but actually to conduct prompt, thorough, independent and impartial investigations.

[18] It has been alleged that the SAS were involved in killing many Afghans in night raids. The RMP conducted an investigation, Operation Northmoor. The issue is currently before the courts. See “The truth about SAS shoot-to-kill night raids, by the hero of 200 secret ops.”, Daily Mail, September 2nd, 2020.

[19] Hampson, “An Investigation of Alleged Violations of the Law of Armed Conflict”, 46 Israeli Yearbook on Human Rights (2016), p.1 at p.6, note 16; p.23, note 66.