Ben Obese-Jecty is a former British Army Infantry Officer and stood as the candidate for Hackney North and Stoke Newington in the 2019 General Election.
The Overseas Operations Bill is critical legislation; we must ensure it supports our personnel effectively
Ahead of the third reading of the Overseas Operations Bill, the Joint Committee on Human Rights has published its report (‘Legislative Scrutiny: Overseas Operations (Service Personnel and Veterans) Bill‘) and this week will seek to table a number of amendments.
Though the Bill passed at second reading by 332 to 77, costing a number of Labour rebels their roles in the process, the presumption against prosecution for British soldiers serving on operations overseas has proved to be a topic that has raised concerns in quarters beyond those of solely the Labour hard-left. The Chair of the Committee, Harriet Harman, has stated that the Bill “will allow those in our armed forces who perpetrate serious crimes to escape justice”.
Having served as an Infantry Officer on our two most recent protracted military operations, in both Basra and Sangin, I have the utmost confidence in the values and standards instilled and upheld by our service personnel and the leadership and moral courage shown by Officers and NCOs in confronting potentially illegal or damaging decisions and orders; to suggest otherwise belies a thorough misunderstanding of the qualities of our service personnel.
Despite the lengthy investigations of potential British war crimes carried out by the Iraq Historic Investigations Team (IHAT) and investigations in Afghanistan under Operation Northmoor, only two British servicemen have been prosecuted. However, the number of service personnel impacted by legal claims runs into thousands.
IHAT investigated 3,400 allegations against British service personnel, and Operation Northmoor a further 675, leading to one prosecution in 2005 and none since (Royal Marine Sergeant Alexander Blackman’s prosecution falling outside this framework). Therefore to place thousands of individuals under suspicion, some of whom already suffer the daily challenge of having served on operations during the most costly period for British forces overseas since the Second World War, is precisely the nature of vexatious claims that the Bill is designed to prevent – despite Reverend Nicholas Mercer’s view that the Bill itself is ‘egregious’.
During this week’s third reading of the Bill, Labour are expected to table a number of amendments, several of which are expected to fundamentally change its nature. But there is an opportunity to refine its detail in order to both assuage concerns and better support service personnel.
The Government must do its utmost to uphold the manifesto pledge to end the vexatious claims against members of our Armed Forces. With the majority of those who oppose the Bill having never found themselves faced with the life-or-death decisions placed upon our troops, particularly during the decade of high-tempo operations that started with the Iraq War, it would be remiss of the Government to acquiesce to their demands and facilitate the continued ease with which allegations are made.
Harman is expected to table an amendment that would remove the presumption against prosecution for service personnel, but the accusation that the Bill permits torture and war crimes to take place is not only an insult to the discipline and professionalism of our Armed Forces, it is simply not borne out by statistics. With thousands of service personnel having been needlessly harangued, protecting them from the debilitating pressure of lengthy investigations, sometimes years after they have served, remains crucial.
The six-year time limit restricting the ability of individuals to bring civil claims against the Government or the Ministry of Defence in relation to operational overseas service acts, however, flies in the face of this protection.
It is hard to envisage where the implementation of Clause 11 stands to benefit current or former service personnel. Under the conditions of the Bill, I as a veteran would find myself with a one-year timeframe to bring a civil case against the MoD should I develop an illness in later life caused by my operational service in Iraq or Afghanistan. It is difficult to see how this is of benefit to the thousands of veterans potentially impacted by this change.
Given the Government’s commitment to upholding the Armed Forces Covenant, it should not be afraid of confronting those circumstances when the duty of care towards personnel should have been greater. We cannot expect troops to show moral courage during demanding operations and not expect that to be reciprocated. Removing the six-year absolute limit upon civil claims for service personnel would reinforce the commitment to how they are valued and reinforce confidence that there is a framework in place that facilitates their needs should circumstances require it.
There has also been significant criticism of the Bill with regards to the duty to consider derogating from the European Convention on Human Rights. Clause 12 of the Bill inserts a new section into the Human Rights Act which provides that the Secretary of State “must keep under consideration” whether the UK should make a derogation under Article 15 (derogation in time of emergency). Under this the Government is permitted to derogate from the convention in a “temporary, limited and supervised manner” and can be invoked “only in time of war or other public emergency threatening the life of the nation”. Though it has invoked derogation from Article 15 before, it is yet to do so in relation to overseas operations.
The ambiguity around whether the MoD defines “war” as per Article 15 ECHR as the same as “significant overseas operation” within Clause 11 of the Bill is one of the issues upon which critics have suggested clarification. In addition, clarification as to whether the Bill applies to international and non-international armed conflict as well as peacekeeping operations, special operations, and counter-terrorism operations will be vital in establishing the framework within which our forces are operating, and would prevent unnecessary scrutiny at a time when clear and transparent decision-making will be critical in ensuring confidence in our military operations.
The Overseas Operations Bill will uphold the election manifesto pledge to protect our service personnel against vexatious claims and the growing judicialization of warfare as well as illustrating that the Office for Veterans Affairs is delivering in its mission to enhance the quality of life for those who have served.
Current service personnel and veterans alike who have had their lives turned upside down by allegations and fruitless investigations by opportunists and activists deserve the protection on operations that the Government seeks to implement. We owe those same soldiers the right to challenge the MoD should they suffer long-term mental or physical injuries as a result of actions on those operations.