Overseas Operations (Service Personnel and Veterans) Bill — House of Lords, 2021-01-20
Topic: Defense
Peter Ricketts (Crossbench, Unknown): Like many speakers in this debate, I took the original objective of this legislation to be to deal with the issue of vexatious claims. As National Security Adviser, I saw at close quarters the MoD having to devote huge resources of people and money to dealing with the deluge of 3,400 civil claims that it received after the Iraq operation. In the vast majority of them, there turned out to be no case to answer. It was evident to me then that there was a real problem with vexatious civil claims against members of the Armed Forces. That still needs addressing, but, somewhere along the line, this Bill seems to have become much more concerned with criminal prosecution, where, as many noble Lords have said, there is no evidence of vexatious pursuit of military personnel It seems that the heart of the problem that the Bill is trying to address is the overlap between the laws of armed conflict as enshrined in the Geneva conventions and human rights law as set out in the European convention. As many noble Lords have said, the Geneva conventions were developed over more than a century, with British jurists playing a very distinguished part, to take account of the fact that war necessarily involves violence and death. They distil the experience of two world wars in a series of principles that recognise the realities of war and aim to protect as far as possible the rights of civilians and other non-belligerents. They are designed to apply in wartime. The ECHR, for all its great merits, was patently not framed to apply to the special circumstances of war. That is why it has Article 15 to provide the right to derogate in such circumstances. The difference of purpose between the two legal frameworks was well captured for me as a lay man by the comments of a British military prosecutor in evidence to the Defence Select Committee in 2014, when he said: "The need to arrest and detain enemy combatants and insurgents in a conflict zone should not be expected to comply with peace-time standards such as those exercised by a civilian police force in Tunbridge Wells on a Saturday night." The issue of overlapping jurisdiction was not a problem during the extended British military operations in Bosnia and Kosovo. It really only came to the fore in Iraq. Why is that? It seems that there is a crucial point here that has not received much attention in our debate: Iraq was not just a peacekeeping operation on the territory of a sovereign power; Britain became an occupying power, with British forces exercising public powers of law and order, including detention, over the civilian population. We have learned in successive military operations that custody and detention present formidable problems for military commanders. They were a cause of controversy again in Afghanistan, although the Operation Northmoor investigation showed no cases to answer by British forces As my noble and learned friend Lord Hope and others have underlined, Article 15 of the ECHR sets a very high bar for derogation with its reference to "an exceptional situation of crisis or emergency that affects the whole population and constitutes a threat to the organised life of the community" However, the House of Commons Library briefing prepared for the Bill noted that the High Court, in the Mohammed judgment of 2014, recognised that the extension of the ECHR’s jurisdiction into the area of international military operations, as a result of the Strasbourg judgments, had implications for the interpretation of Article 15. The court found that Article 15 could be construed as referring to a threat to organised life in the country in which British forces were operating, not just in the UK. I realise that I am venturing on to legal territory here, but if I have understood that correctly it seems an important point. In my view, a future British Government would do well to consider derogating from Article 15 if a future overseas operation was likely to involve the UK again exercising occupying powers, although I doubt a Secretary of State would need that to be enshrined in statute to remind him to consider it Much more briefly, I also support the strong view of many noble Lords that this Bill needs significant amendment to prevent it having damaging unintended consequences. I hope that the Government will listen to the strength of legal and military opinion expressed in our debate that the Bill should exclude war crimes and other crimes against humanity, including torture, as well as sexual offences from the presumption against prosecution. I hope that the Government will accept that the Bill as drafted could lead members of the UK Armed Forces to face prosecution at the International Criminal Court. That would be the very opposite of the support to our Armed Forces that the Bill is intended to provide, and it would be a disaster for the reputation of this country for upholding international law.