writing for Just Security, points to three proposals that have been out for discussion in the UK:
The consultation puts forward three substantive proposals, targeting both criminal and non-criminal cases related to alleged violations outside the U.K. — in other words, the proposed legislation would not provide the same protections in cases related to the Troubles in Northern Ireland:
- To introduce a statutory presumption against prosecution of current or former Armed Forces personnel for alleged offences committed in the course of duty outside the U.K. more than 10 years ago. The presumption would not apply, though, to offences alleged to have been committed by members of the Armed Forces against fellow personnel, or against other Crown Servants, essentially establishing a two-tier system in which the death of or injury to British personnel is of greater legal consequence than non-British personnel or civilians.
- To create a new partial defense to murder, which would be available to current and former Armed Forces personnel who caused death in the course of duty outside the U.K. through the use of greater force than strictly necessary for the purposes of self-defense in the “heat of the moment,” providing the initial decision to use force was justified.
- To restrict the discretion of the courts to extend the normal time limit for bringing compensation claims for personal injury and/or death in relation to historical events outside the U.K.
Each of the three proposals is not only unprecedented as a matter of domestic law, but also has serious implications for the U.K.’s international obligations. This author’s civil liberties and human rights organization, Liberty, set out its full concerns in a response to the MoD consultation. The focus of the remainder of this piece is the proposal to introduce a statutory presumption against prosecution of current or former Armed Forces personnel. If introduced, the measure might well pique the interest of the ICC in its investigation into the U.K.Ms. O'Mara writes:
If taken forward, these proposals risk fostering a culture of impunity among U.K. forces that inevitably would reverberate on partners in military coalitions, as the absence of avenues to gain justice for abuses creates blowback in the form of threats and attacks on troops in the field.
What’s more, the proposals must now be set against the backdrop of evidence reported by BBC Panorama and The Sunday Times in November of a potential cover-up by the U.K. government and MoD of war crimes committed in Iraq and Afghanistan. The stories prompted the International Criminal Court (ICC) to say it would independently assess the reports and consider launching a full investigation.