Written evidence from Dr Alexandra Fowler (OOB0028)

Introduction

The author, Dr Alexandra Fowler, is a specialist in international law in the School of Law at the University of Westminster, London. A former diplomat, she holds a Doctorate in Juridical Studies from the University of Sydney entitled State-Based Compensation for Victims of Armed Conflict: Recent Developments in Practice. Her research focuses on a number of areas of international law, particularly international humanitarian law, international criminal law and human rights, and the above Bill was the subject of a series of short articles she published in early 2020. Given the Bill’s far-reaching implications for the UK’s core obligations under international law, the author would like to take this opportunity to present her views to the Committee.

This submission deals with the proposed statutory presumption against the prosecution of service personnel and veterans after five (5) years has elapsed from the date of an alleged incident.

The Statutory Presumption Against Prosecution

1. A combination of ss1-3 of the Bill introduces a “presumption” that once five (5) years have elapsed from the date of an alleged offence during operations outside the UK, it would be “exceptional” for prosecutors to decide that a serving or ex-soldier should be prosecuted. Further, there is presumed to be a public interest in finality where no ‘new’ evidence (defined as having been taken into account in a previous investigation) is presented.

2. The proposed presumption against prosecution after five (5) years have elapsed from the date of an alleged offence, which includes a presumed “public interest in finality” after this time, is extremely concerning for a number of reasons. The presumption in fact becomes an effective time bar as any prosecution beyond five years, in addition to being considered “exceptional”, would need to take into account a number of matters (defined in the Bill) which reduce culpability (regardless of the soldier’s rank, length of service or personal resilience), and gain the consent of the Attorney General (s5).

3. There are a number of reasons why a prosecution may not be able to be brought within a five-year timeframe. Investigations take many months or even years to complete. Often it is difficult to track down local witnesses and arrange for their testimony, particularly during the chaos of war or in severe security circumstances such as applied in Southern Iraq for a substantial portion of the period of the UK combat deployment (2003-2009). Lack of confidence that anything will be done about violations, fear of approaching or making accusations against foreign forces, or fear of being seen by other locals interacting with foreign forces, puts many locals off making a complaint or giving evidence even for the most damning of incidents. Perversely, the more intense the security situation, the greater the possibility that sufficient evidence of a war crime will not be able to be gathered from those on the ground. Thus an investigation may be protracted, and new evidence may come to light (for example from fellow service personnel after leaving the combat zone, from NGOs, or human rights bodies) a substantial time afterwards. Many of the SPLI’s legacy caseload[1] from Iraq involving credible allegations of war crimes still have not been able to be brought to court for various reasons, and these are all for incidents that occurred well over five years ago. The Bill would mean, in addition to any future incidents, that the personnel/veterans suspected of those crimes will never be prosecuted. Given the fact that any substantial UK troop commitment overseas is likely to lead to a large case load requiring years to investigate (as occurred in Iraq and also in Afghanistan), an effective time bar after five years is likely to stymie prospects for holding the vast majority of alleged perpetrators to account.

4. There is no time limit in international law for the prosecution of war crimes or crimes against humanity given their grave nature, so introducing a presumption against prosecution after any period of time (five years or otherwise) would be out of step with international obligations. To the author’s knowledge no other major Western countries have introduced any time limit for these offences.

5. A time bar is also out of step with regular UK criminal law, where there is no time limit for indictable offences such as murder, manslaughter, sexual offences and even grievous bodily harm, all of which may be prosecuted a great many years after the alleged incident.  Why should a murder committed by a service member during an operation overseas escape prosecution after five years, but a murder committed in the UK remain able to be prosecuted for as long as the murderer lives? In addition, judges already have well-established procedural safeguards for dealing with historic complaints such as the ability to exclude evidence where it has degraded over time or even to stay proceedings to avoid abuse of process if necessary, so dealing with old allegations needs no additional measures to ensure fairness to the accused.

6. Further concerns arise from the Bill’s blanket coverage – it applies to crimes of all types, ranging from the most heinous to the minor. As a result, murder (arbitrary killing), mutilation, hostage taking, torture (including rape and other acts of sexual violence during war[2]), cruel treatment, and humiliating treatment or punishment – which are among the worst of the worst - would also be affected. Such acts are considered by the international community to be the most heinous, and they without doubt are also considered as such by the British public. There is no however no guarantee that the Attorney General would be likely to agree to prosecute such offences any more than minor ones beyond the five-year mark.

7. Moreover, introducing a time limit for the prosecution of war crimes or crimes against humanity may be in clear contravention of the UK’s international obligations, as explained below. 

Violation of Obligations under the ECHR

8. The UK’s status as a State Party to the ECHR enlivens a number of obligations. Article 2 (right to life) and Article 3 (freedom from torture) are two of the most significant. Article 15(1) makes clear that these are non-derogable no matter the circumstances (even during conflict). The Grand Chamber of the European Court on Human Rights made clear in Al-Skeini & Ors v UK[3] that a State Party’s obligations under the ECHR extend to territory external to its own territory over which it has “effective control” at the time[4],  as the UK had over parts of Southern Iraq at the time of the incident(s) occurring in that case. This means that should the UK engage in foreign military operations in future, it would be bound to secure Article 2 and 3 rights (as a minimum) to all individuals within its control.

9. ECHR Article 13, in mandatory language, imposes the requirement for a State to provide an “effective remedy” to all individuals whose Convention rights are violated. While Article 13 does not guarantee a right to secure the prosecution and conviction of a third party, the European Court has made clear that Article 13 in conjunction with or in the light of Article 2, imposes an obligation to conduct thorough and effective investigations capable of leading to the identification and punishment of those responsible.[5] It should be noted further that where a criminal investigation into the circumstances of an attack is ineffective, and where there is no alternative civil remedy, the State will not meet its obligations under Article 13 of the Convention.[6] This means that after six (6) years when the Bill also proposes that civil claims and claims for compensation under the Human Rights Act 1998 become unavailable, a failure to investigate and (as appropriate) prosecute credible violations of Article 2 will violate victims’ right to an “effective remedy”. Similarly, in relation to Article 3 (the prohibition against torture), Article 13 imposes, without prejudice to any other remedy available under the domestic system, an obligation on States to carry out a thorough and effective investigation of incidents of torture,[7] and the Court has found violations of Article 13 when civil remedies are not available.[8] Other case law has ruled that the ineffectiveness of criminal proceedings against an alleged torturer which become time barred will violate Article 13 in the light of Article 3.[9] As such, the presumption against prosecution in this Bill after five years (especially in combination with the six-year time bar for civil claims) exposes the UK to a real risk of violation of the ECHR.

Violation of Other Key Provisions of International Law

10. It should also be mentioned that the UK is a State Party to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) (applicable irrespective of armed conflict[10]), of which Article 12 requires a “prompt and impartial” investigation by the State whenever there is a reasonable ground to believe torture has taken place by a person within its jurisdiction[11], and submission of that person to prosecution.[12] There is no limitation period within the Convention. Failure to comply with Article 12 beyond a period of five-years after a credible incident (as introduced by this Bill) risks the UK being investigated by the Committee Against Torture, and being guilty of a wrongful act in international law.

11. Further international law also applies to such circumstances. During armed conflict the rules of international humanitarian law prevail, namely the four Geneva Conventions and their two Additional Protocols, in addition to a significant number of other key instruments.[13] The UK is a State Party to all these instruments. Key provisions of these treaties outlaw arbitrary killing, torture, mutilation and cruel or degrading treatment. These rules are universally regarded also as international legal custom, and are in fact so fundamental as to comprise peremptory rules of jus cogens which apply everywhere and in any armed conflict (international or non-international in character), whether or not a nation State asserts the non-applicability of the Geneva Conventions in that conflict.[14]

12. Under these international instruments and customary international law[15] the UK is required to investigate war crimes and/or crimes against humanity allegedly committed by its armed forces or its nationals, and to prosecute all credible cases. They contain no time limitation of any kind on investigations and prosecutions of credible cases, meaning the obligation to investigate and prosecute does not expire (except of course upon the death of the accused). As such, for the UK not to act after five years (except in the very limited exceptional circumstances envisioned in the Bill) runs the risk of putting it in contravention of core international law obligations.

13. Further, as the UK is a State Party to the Rome Statute of the International Criminal Court, there is the possibility of UK armed forces commanders and/or soldiers being prosecuted by that Court (after the five-year period has elapsed) for incidents amounting to grave breaches of the Geneva Conventions, or serious breaches of international human rights law.[16] The ICC’s Office of the Prosecutor (OTP) concluded a preliminary investigation in 2017 and found there was a “reasonable basis” to believe that members of UK forces had committed a range of war crimes in Iraq.[17] As to whether such evidence could support a prosecution, the OTP noted that proposed legislation to limit prosecutions (such as the Bill in question) would be assessed to see whether it evidences the standards of inactivity and genuineness set out in Article 17 of the Rome Statute.[18]

14. It is quite possible that the OTP may consider a statutory presumption against prosecution after five years as amounting to an indication that the UK is unwilling to genuinely carry out an investigation and prosecution after that time, which may be sufficient to enliven the jurisdiction of the ICC. The UK may then face the internationally embarrassing possibility of having the Court request the extradition of relevant commanders, soldiers or veterans for prosecution in The Hague. Although such a situation is far from certain, it does demonstrate the possible risks involved in such a presumption.

15. It should lastly be noted that if the UK did show itself unwilling to prosecute those allegedly guilty of grave breaches of the Geneva Conventions such as amounting to war crimes or crimes against humanity, or violations of the Convention Against Torture after the five-year statutory presumption applies, it is also possible that other States may decide to exercise jurisdiction over them instead in accordance with well-known customary international rules providing for universal jurisdiction for such offences.[19] It is therefore theoretically possible that other States could arrest and prosecute UK armed forces members in later life (even long after their discharge from military service).

16. All the above eventualities lay waste to any claim the UK may have had to moral leadership in global efforts against war crimes and serious human rights abuses. A move by the UK in this direction is also dangerous to international efforts against such crimes more broadly as it may lead to other countries following suit, with clearly detrimental knock-on effects for the international legal regime as a whole. Giving an effective pass to alleged perpetrators in its own ranks after five years risks allegations of impunity which clearly damage the UK’s reputation.

17. Accordingly, if any limitation on prosecutions is to be introduced (for example after the lapse of five-years from the date of the incident), it must only be for minor offences not amounting to war crimes or crimes against humanity as defined in the Geneva Conventions and in the Rome Statute of the International Criminal Court (which encapsulates acts falling within the purview of Articles 2 and 3 of the ECHR, and the Convention Against Torture).

11/09/2020

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