The Government has No Reason to Change the Law for Soldiers on Negligence & War Crimes
On the day Parliament votes on the Overseas Operations Bill, Geraint Davies MP argues that it betrays the values that generations have fought for
On Sunday, the nation will remember and mourn those who died to defend our country’s freedom and values. We cannot gather together around war memorials or in churches this 11 November, but we can still stop to reflect on those who gave their tomorrows for our todays.
As Government ministers attend a closed ceremony at the Cenotaph and the Prime Minister lays his wreath, we must ensure that new legislation does not remove protections for today’s armed service men and women – betraying the values for which so many have paid the ultimate sacrifice.
The Overseas Operations Bill, which comes before the House of Commons today, limits the rights of service personnel to bring claims against the Government for negligence, and those of prosecutors to investigate and prosecute war crimes.
It increases the risk to soldiers both from negligence and to prosecution by international courts and is based on the groundless misconception that our armed services are hampered by operating within the rule of law. In this way, it risks fanning the flames of human rights abuses by weakening the moral codes they obey and we have fought for.
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The bill will ban courts from hearing claims against the Government by service personnel if the harm occurred more than six years ago.
Most recently, this would have excluded the case of an army cadet who was sexually abused by her instructor but didn’t reveal the abuse until she was an adult, years later. It would also have excluded a Territorial Army officer who was subjected to years of racist abuse at the hands of his colleagues, to which his superiors turned a blind eye. And a soldier who suffered post-traumatic stress disorder in Afghanistan but was not allowed to see a therapist until his lawyers forced the Ministry of Defence to provide one a year later.
If we want our armed forces to be effective, we need to treat our servicemen and women with respect, not as cannon fodder. This bill does the opposite.
Perhaps more disturbingly, particularly for those servicemen and women who fought against terrorists such as the Taliban or criminals like Slobodan Milosevic, the first part of the bill effectively bans prosecutions for war crimes after five years, although sexual offences are excluded from the ban.
Prosecutions for crimes, including murder and torture, will be subject to a ‘triple lock’ that makes either beginning or continuing a prosecution all but impossible after five years.
It can take decades to effectively investigate war crimes and, by refusing to disclose relevant information, government has the ability to cover-up for criminals. Disclosure in a recent case, for instance, indicates that the Ministry of Defence may have sat on evidence of the execution of unarmed civilians by British Special Forces for more than a decade.
Even the ‘good guys’ can commit crimes. What distinguishes the UK from regimes like those of Saddam Hussein or the Taliban is that, when our forces commit crimes, they are held accountable. This bill goes a long way to erasing that distinction and could end up worsening behaviour in conflict zones whilst fermenting more terrorism outside of them.
The courts have proved themselves capable of dealing with historic claims without Whitehall interference. They currently only hear claims when it is ‘equitable’ to do so, having looked at the circumstances of the case, weighing the balance of prejudice to each side, and only hear a case where fairness requires them to do so. The Overseas Operations Bill will instead impose a blanket ban, unfairly dismissing reasonable cases.
Indeed, the bill is not necessary to prevent nuisance claims as the courts already dismiss such claims before trial, generally with an order to the claimant to pay substantial costs to the Ministry of Defence.
Tellingly, both the Royal British Legion and the former Director General of the Royal United Services Institute have condemned the bill.
“At the going down of the sun, and in the morning, we will remember them”. To do so, with the honour they deserve, we must protect our armed services, and uphold the standards their predecessors observed as they fought and died against war criminals, and those who threatened our values and freedoms.
Geraint Davies is Labour MP for Swansea West
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