‘The Politics of Truth’: The U.K. Overseas Operations Act and Legislation on Northern Ireland Legacy

On July 2, the Northern Ireland Public Prosecution Service (PPS) notified the families of James Wray and William McKinney that it had discontinued proceedings against a former U.K. soldier, referred to as Soldier F. Since March 14, 2019, Soldier F had faced trial for the murders of Wray and McKinney and the attempted murders of five others—all shot during the events that took place in Londonderry on Jan. 30, 1972, better known as “Bloody Sunday,” when British soldiers in Northern Ireland opened fire on unarmed protesters. Also on July 2, the Northern Ireland Public Prosecution Office announced it was dropping charges against a former U.K. soldier, referred to as Soldier B, charged with killing Daniel Hegarty and wounding his cousin Christopher Hegarty on July 31, 1972. These two prosecutorial decisions come in the wake of the May acquittal of Soldiers A and C—accused of the 1972 murder of Irish Republican Army member Joe McCann—after the Belfast Crown Court determined that statements alleged by the prosecution as amounting to confessions were inadmissible and the PPS decided to offer no further evidence.

Such prosecutorial moves must not be analyzed in a vacuum and should instead be situated within the larger context of the U.K. government’s post-Brexit “unsplendid isolationist” tendencies and its recent legislative attempts to grapple with “the politics of truth.” This post analyzes two such legislative attempts to strike the balance between allowing impunity and carrying out a “show trial” involving U.K. military personnel: the Overseas Operations Act and recent movements to address the legacy of the Troubles, including vis-à-vis a recently published command paper. Both moves raise questions about the U.K.’s future engagement with the European Convention on Human Rights (ECHR) and its willingness to meet its obligations under international law.

The Overseas Operations Act

Prior to its passage, the Overseas Operations Bill endeavored to limit criminal and civil claims arising out of the conduct of U.K. military personnel overseas. Originally aiming “to provide greater certainty” for U.K. service personnel regarding “vexatious claims and prosecution of historical events,” the Overseas Operations Act contains several measures, including a presumption against prosecution and a civil litigation longstop, that endeavor to “address issues that have partly arisen from the expansion of the ECHR to cover overseas military operations.” (Of course, contrary to the above, it is well established that—while ECHR jurisdiction is primarily territorially bounded—states do have extraterritorial obligations via several routes.)

As introduced into the House of Commons in March 2020, the bill included:

• [A] presumption against prosecution in respect of alleged offenses committed on overseas military operations more than five years ago, pursuant to which decisions to bring proceedings in such cases will be “exceptional[.]”
• [A] requirement for prosecutors to give particular weight to certain matters in reaching decisions in such cases[.]
• [A] requirement to obtain the consent of the Attorney General or, in the case of Northern Ireland, the Advocate General, before a prosecution can proceed.
• A requirement for “the court to consider the operational context when deciding whether to extend the normal time limits for bringing civil claims for personal injury or death and for bringing claims under the Human Rights Act (HRA) in connection with overseas operations[.]”
• The introduction of “a long-stop restricting to an absolute maximum of 6 years the time limit for bringing civil claims for personal injury or death and for bringing HRA claims in connection with overseas operations[.]”
• The assurance “that all future governments are compelled to consider derogating from the European Convention on Human Rights (ECHR) in relation to significant overseas military operations.”

While the government carved several offenses out of the initial presumption against prosecution including offenses committed against U.K. personnel (Part 1, Clause 6, Subsection 2) and sexual offenses (Schedule 1, Part 1, Clauses 2–10), including certain crimes against humanity and war crimes (Schedule 1, Part 2, Clauses 17–19), it failed to exclude certain other international crimes for which the U.K. has investigative obligations. Markedly, these crimes included torture, war crimes and genocide. Human rights organizations, veterans and institutions alike, including a number of U.N. Special Rapporteurs, took note. Finally, after an amendment moved by George Robertson, former U.K. defence secretary and secretary general of NATO, the bill’s ultimate iteration came to exclude sexual offenses, torture, crimes against humanity, genocide and war crimes from the presumption against prosecution. On April 29, 2021, the act received royal assent and became law.

Importantly, the legislation applies only to “operations outside the British Islands,” meaning that it does not apply to operations that took place in Northern Ireland during the Troubles, as a result of which more than 3,500 people were killed. Even before the Overseas Operations Bill was introduced, Defence Secretary Ben Wallace made it clear that the government sought to provide “equal” protections to Northern Ireland veterans as well. However, it was for reasons of this disparate treatment—through which British forces that served in Northern Ireland were treated as “second-class veterans”—that Johnny Mercer resigned as minister for defence people and veterans in April.

Legislation on Northern Ireland Legacy Issues

Ever since 2014, the U.K. government has vacillated between introducing legislation to fully implement the commitments made in the 2014 Stormont House Agreement and introducing legislation that largely departs from it in an effort to cater to those constituents who deplore what they believe to be “vexatious claims.” In the Stormont House Agreement—the 2014 agreement formed among the U.K. government, Irish government and the five largest political parties in the Northern Ireland Assembly—the U.K. government committed to introducing a number of independent mechanisms as a part of a larger inquests program into the legacy of the Troubles. These mechanisms were to include a fully independent investigative unit, an international information recovery mechanism, an oral history archive, and an Implementation and Reconciliation Commission. It attempted to do so in the 2018 Draft Northern Ireland (Stormont House Agreement) Bill, on which it solicited views via a 21-week consultation.

In July 2019, after the consultation to “address the legacy of Northern Ireland’s past” had concluded, the U.K. government published a summary of the responses and reiterated its “full[] commit[ment] to the implementation of the Stormont House Agreement.” In January 2020, the U.K. government stated that it would introduce legislation to implement the Stormont House Agreement within 100 days. However, before those 100 days had elapsed, the government signaled that—due to the way the “debate” had continued to evolve since 2014—it might depart from its obligations and instead “shift the focus” of its approach to “reconciliation … [and] end[ing] the cycle of reinvestigations into the Troubles in Northern Ireland that has failed victims and veterans alike.” Naturally, the government framed its new approach as one that “remain[s] true to the principles of the Stormont House Agreement,” but—as legacy practitioners such as Daniel Holder note—it is actually part of a “strategy of gaslighting in plain sight.”

On May 5, The Times and The Telegraph reported that the U.K. government had plans for a new statute of limitations related to events that occurred during the Troubles, “except for cases involving war crimes, genocide or torture.” Dublin and Belfast reeled at the thought, as did legacy practitioners and two U.N. Special Rapporteurs. On June 29, the Northern Ireland Office announced a framework for “short[, …] focused” multiparty talks on Northern Ireland legacy issues. Then on July 14, the secretary of state for Northern Ireland, Brandon Lewis, made a statement to members of Parliament on the government’s legislative plan to address the legacy of the Troubles. This plan is laid out in the form of a command paper, which outlines three key proposals: (a) a new independent body focusing on the recovery and provision of information about Troubles-related deaths and most serious injuries; (b) a major oral history initiative through which individuals would be able to share their experiences and perspectives related to the Troubles; and (c) a statute of limitations, to apply equally to all Troubles-related incidents.

Notably, under the statute of limitations, the Police Service of Northern Ireland and Police Ombudsman Northern Ireland “would be statutorily barred from investigating Troubles-related incidents … bring[ing] an immediate end to criminal investigations into Troubles-related offences and remov[ing] the prospect of prosecutions” (though the statute of limitations would not apply retrospectively).

International Obligations

While there are many international obligations to ensure systematic abuses and systematic issues that lead to abuses within the military are properly investigated, and that violations are prevented from reoccurring, this post focuses on the U.K. government’s international obligations to investigate and prosecute violations of the right to life. These obligations are crystallized in Article 2 of the ECHR as well as in Article 6 of the International Covenant on Civil and Political Rights. Markedly, though, the U.K. government is currently reviewing the ECHR’s incorporating legislation, the Human Rights Act. This post’s final section raises questions about the government’s willingness and ability to uphold these obligations.

Under both international humanitarian law (IHL) and international criminal law (ICL), states are required to investigate and prosecute certain crimes, including war crimes. International human rights law (IHRL) similarly requires states to conduct an “effective official” investigation when individuals have been killed as a result of the use of force, as well as to provide an effective remedy before a national authority.

Under Common Article 1 to the Geneva Conventions, all parties to an international armed conflict have a general obligation to respect and ensure respect for IHL. In the context of an international armed conflict, states are obliged to investigate and prosecute grave breaches of the Geneva Conventions, including “willful killing.” Though neither Common Article 3 to the Geneva Conventions nor Additional Protocol II, both of which deal with non-international armed conflicts, mentions a duty to investigate or prosecute grave breaches, there is a general consensus that the obligation also applies to conflicts not of an international character. State practice, the International Committee of the Red Cross Customary International Law Study and the Turkel Commission also support this assertion. Most international legal scholars agree that obligations to investigate and prosecute grave breaches, or extradite an offender to another state that is willing and able to prosecute, are customary international law. Moreover, the obligation to investigate and prosecute violations of IHL is not limited to grave breaches but, rather, includes all breaches of IHL that constitute “war crimes.” The U.N. Security Council and General Assembly have affirmed this state obligation.

Under ICL, states are required to exercise criminal jurisdiction over those responsible for international crimes, including—but not limited to—war crimes. Under the principles of complementarity and subsidiarity, the ICL system expects domestic courts to investigate and prosecute international crimes at the national level. This responsibility to investigate is codified in several treaties and is customary international law. Moreover, under the principle of universal jurisdiction, all states have jurisdiction to prosecute persons accused of international crimes—notwithstanding the place of commission or the nationalities of the victim or the accused. The U.K. has universal jurisdiction over the crimes of torture, hostage taking and war crimes in international armed conflicts.

Under IHRL, states have obligations not only to investigate certain human rights violations—including violations of the right to life—in compliance with relevant standards but also to prosecute the perpetrators where the evidence so dictates. States are required to investigate and prosecute certain crimes under comprehensive universal and regional human rights conventions as well as crimes defined in conventions that explicitly require investigation and prosecution.

Under Article 6 of the International Covenant on Civil and Political Rights, states parties are obligated to investigate potentially unlawful deprivations of life and “circumstances in which a serious risk of deprivation of life was caused by the use of potentially lethal force, even if the risk did not materialize.” States parties similarly have a duty to investigate alleged or suspected violations of the right to life in situations of armed conflict. The Human Rights Committee has affirmed that states parties are generally obligated to bring persons accused of human rights violations to justice—prosecuting subsequent to a criminal investigation “where appropriate” or “if enough incriminating evidence is gathered.” States parties “must generally refrain” from addressing violations of the right to life “merely through administrative or disciplinary measures” and instead are obligated to prosecute, try, and punish those responsible for crimes—including summary and arbitrary killings. In some instances, a state’s failure to take criminal measures may amount to violation of a substantive individual right. Notably, the investigation is the first step toward criminal prosecution “and falls under the duty to provide victims with an effective remedy.”

Under European Court of Human Rights jurisprudence, when a form of lethal force results in death, Article 2 as read in conjunction with Article 1 requires “some form of effective official investigation” “to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility.” While the ECHR itself does not expressly mandate investigation and prosecution for violations of enumerated rights, the European Court of Human Rights and the European Commission have read in such positive obligations to investigate and prosecute—including in cases dealing with the right to life and in situations of armed conflict. The obligation for states to conduct an effective official investigation for more serious human rights violations must be one “capable of leading to the identification and punishment of those responsible,” but the obligation to prosecute is an obligation of means and not of result. Overall, after a human rights violation, states maintain an “ex post facto procedural obligation” which is most often articulated in terms of investigation and prosecution.

Has the U.K. Been Meeting Its International Obligations?

Northern Ireland

As recently as March, the Committee of Ministers of the Council of Europe “reiterated their profound concern about the ongoing delays in the McKerr, Shanaghan and Kelly and Others cases due to systemic delays in inquest proceedings and Office of the Police Ombudsman for Northern Ireland (OPONI) investigations” and about the delay in implementing legislation in light of the Stormont House Agreement. The McKerr group of cases comprises six historic cases of deaths in the 1980s and 1990s about which the European Court of Human Rights has had sustained concern regarding the inadequacy of the investigation of the use of lethal force by state agents. The Committee of Ministers has periodically commented on the McKerr group of cases since the European Court of Human Rights found a number of violations of the procedural obligation under Article 2 to conduct an effective investigation into such deaths. In the same March decision, the Committee of Ministers decided to reopen the examination of the Pat Finucane case. This ongoing explicit concern regarding Article 2-compliant investigation raises the question of whether the U.K. has been meeting its international obligations.

Iraq

With respect to other overseas operations—including in Iraq between 2003 and 2009 (Operation Telic) and in Afghanistan between 2002 and 2014 (Operation Herrick)—the evaluation of whether the U.K. is meeting its international obligations is less clear. Despite some level of understanding that the U.K. is carrying out relevant inquiries into violations of the right to life and/or prosecutions on its own, a pattern of opening, closing and reopening investigations—often in the face of additional videographic evidence and communications—lends credence to the idea that the U.K. is perhaps willing to shirk its international obligations in an effort to “protect” veterans.

At its peak, Operation Telic involved approximately 46,000 personnel. The last remaining British forces withdrew from Iraq on May 22, 2011. The Ministry of Defence faced approximately 1,400 judicial review claims and more than 900 civil claims for compensation, and a number of personnel faced investigation and prosecution. The U.K. government also conducted its own investigations, litigation, and inquiries, including the Baha Mousa Public Inquiry Report, the Al-Sweady Inquiry Report, the Iraq Inquiry (Chilcot Inquiry) and the Iraq Historic Allegations Team. The Service Police Legacy Investigations is currently investigating remaining allegations of serious criminal behavior conducted by U.K. service personnel in Iraq.

On the international level, in December 2020, the International Criminal Court (ICC) concluded a preliminary probe into alleged war crimes committed by British forces in Iraq. This six-year probe was actually the reopening of a preliminary examination, closed in 2006, into the situation in Iraq. One of the primary reasons for the court to reopen the preliminary examination at the time was a communication from the European Center for Constitutional and Human Rights (ECCHR) and Public Interest Lawyers alleging U.K. officials’ responsibility for war crimes in Iraq from 2003 to 2008. With history as prologue, on July 1 the ECCHR requested that the Office of the Prosecutor seek a review of its December 2020 decision. While the ICC has not yet responded officially to the ECCHR’s communication, only time will tell whether the Office of the Prosecutor agrees with the ECCHR that it applied an “excessively high standard of proof regarding the UK’s unwillingness to prosecute alleged war crimes.”

Afghanistan

Operation Herrick is the operational code name for British operations in Afghanistan from 2002 to 2014. Its more recent iteration, Operation TORAL, is drawing to a close. The U.K. Ministry of Defence faced approximately 100 claims arising from operations in Afghanistan. Like in Iraq, the U.K. government has conducted its own investigations, litigation, and inquiries, including the classified Royal Military Police investigation, Operation Northmoor and the case of Serdar Mohammed. No case investigated as part of Operation Northmoor was referred for prosecution by the Service Prosecuting Authority. Along with BBC Panorama and The Sunday Times’ investigation concerning evidence of the U.K.’s covering up of war crimes, documentary evidence has also been uncovered containing allegations about a “rogue” Special Air Service unit executing civilians in Afghanistan.

On the international level, the Afghanistan Independent Human Rights Commission has also called on the U.K. to open an independent inquiry into allegations of British special forces’ unlawful killings in Afghanistan. While the ICC itself has not yet authorized an investigation into the U.K. situation in Afghanistan—but rather that of the Taliban and U.S. and Afghan troops—with the U.S. and U.K. routinely acting in coalition, any continued investigation of one may affect the status of the other. With the Taliban takeover in the country, however, the future vision of justice seems even less certain.

Conclusion

What does it all mean? Both U.K. moves—the Overseas Operations Act and on Northern Ireland legacy—have been presented as part of a broader agenda to “protect” veterans from “the judicialisation of armed conflict,” or “lawfare.” But to some observers, they reek of a nation trying to limit the vulnerability of those who exercise a monopoly on legitimate violence. In its notes concerning the Overseas Operations Bill, the government spoke about the way certain “historical incidents'' occurred “in the uniquely complex environment of armed conflict overseas.” Yet there is an inherent contradiction with similar moves being made for Northern Ireland.

Post-Brexit, the U.K. has taken an abrupt turn away from not only Brussels but perhaps also Strasbourg. It is currently examining the relationship between domestic courts and the European Court of Human Rights and the impact of the Human Rights Act on the relationships among the U.K. judiciary, executive and legislature. With both the Overseas Operations Act and the command paper raising questions about the U.K.’s willingness to uphold its international legal obligations, it is becoming all the more important for international institutions like the International Criminal Court and the European Court of Human Rights to continue to hold the U.K.’s feet to the fire.