KAMALIKA PIERIS

United Kingdom led a global offensive at the United Nations Human Rights Council (UNHRC) in Geneva to prosecute ‘war crimes’ against Sri Lankan soldiers. Critics are now going at UK for its own violation of human rights and they are starting with the British Empire. Jallianwallah Bagh massacre of 1919,   Peshawar massacre of 1930, Batang kali massacre in Malaysia and so on.

UK suppressed the Mau Mau rebellion in Kenya with great severity. 30,000 were massacred. There was torture. There were   concentration style camps. One million rebels were forcibly settled in heavily policed new villages where many died of starvation and illness, said critics.

The British conducted a ‘dirty war’ In Northern Ireland. British intelligence set up loyalist terror groups against the IRA. UK army carried out targeted assassinations on suspected IRA operatives. The campaign was directed by British intelligence.

Britain participated in the US-Iraq war, conducted without UN sanction. ICC investigated and found that that there is a reasonable basis to believe that members of the British armed forces committed the war crimes of willful killing, torture, inhuman/cruel treatment, outrages upon personal dignity, and rape and/or other forms of sexual violence in Iraq.

 UK soldiers in Iraq had committed crimes against detainees. There were hundreds of testimonies of allegations of torture.  There was brutality, cruelty and sadism, including sexual abuse and religious humiliation. There was deprivation of food and water.    They used brutal violence which at time resulted in the death of detainees while in custody. ICC found that the cause of some of this was military command failures.” The head of British army and former defense minister were among those named.

ICC laid out the findings of its preliminary examination in a 184-page report.  But in 2006, prosecutor of the International Criminal Court, Fatou Bensouda said she was dropping the preliminary investigation into alleged war crimes by British troops in Iraq, even though she found a reasonable basis to believe they committed atrocities.

There was little doubt that war crimes had been committed but the number of cases submitted were too low for investigation. The case would now be closed and no full-scale investigation would be launched. If fresh evidence emerged, she would reconsider her decision.

The ICC withdrawal was met with dismay. Human Rights Watch said this closing down of the UK inquiry will indicate the existence of double standards at the ICC, one approach for powerful state and another approach for the less powerful states.

A devastating 250 page dossier titled ‘The responsibility of UK officials for war crimes involving systematic detainee abuse in Iraq 2003-2008’ was presented to the ICC in 2014.  This was prepared by Public Interest Lawyers (PIL) and the European Centre for Constitutional and Human rights (ECCHR). It called for an investigation into the alleged war crimes of Britain.

ICC called the document a damaging dossier that draws on thousand of allegations of mistreatment amount to war crimes of torture, of cruel inhuman or degrading treatment. This ranged from hooding prisoners to electric shocks, threats to kill, sexual assault, threats of rape. The sheer scale and seriousness of the allegations passes the threshold to justify an investigation. British military commanders knew or should have known that forces under their control were committing or about to commit war crimes.

Since a lot more information has come to light, ICC   formally reopened its inquiry in 2014.  UK said that allegations are being investigated and there is no need for the ICC to get involved.

The UK has a lamentable record of failing to prosecute war crimes committed by its nationals overseas, said  Human Rights Watch.  UK government has repeatedly shown little interest in investigating and prosecuting atrocities committed abroad by British troops. There has just been one prosecution of UK forces for war crimes in Iraq and Afghanistan in the last 20 years.

The UK government has blatantly interfered in the military justice system to prevent investigations and prosecutions. Special Air Service soldiers have been charged   executing  33 civilians in Afghanistan in a series of raids in Helmand province in early 2011. One incident, involved the deaths of four men in one family. The case was investigated but there were no prosecutions.

The UK military has been accused of covering up credible evidence of war crimes by soldiers against civilians in Afghanistan and Iraq, according to leaks last year from two government-ordered inquiries, said critics. Phil Shiner, who investigated the Iraq issue was found guilty of misconduct and dishonesty and was struck off the register.

Britain is now getting worried that it may have to face war crimes charges in the near future. Therefore the government needed to take precautions. In 2020, it introduced Overseas Operations (Service Personnel and Veterans Bill, which subsequently was passed as Overseas Operations (Service Personnel and Veterans) Act, 2021.

This Act was intended to protect British soldiers from investigations for acts carried out in operations outside the British Islands, including peacekeeping operations and terrorist operations. A statute of limitations was set down. The Act said no charges may be laid after the lapse of five years from the date of the incident. Permission of the Attorney General must be obtained before any prosecution can be made.

The prosecutor must also  keep in mind the exceptional demands and stresses to which  soldiers are likely to be subject while deployed on overseas operations .Prosecutor must also take note of the likely impact of the  prosecution on the mental health of the accused. Prosecution must also take into account the limitations of recall, the ability of persons to remember events accurately.

This Bill was strongly opposed by the legal community in Britain. They were shocked at the inclusion of ‘heinous’ crimes in this evasive Bill. They saw this inclusion as a serious breach of Human Rights Law. TheHouse of Lords took note of this and when the Bill came to them, in Parliament, they saw to it that the following serious crimes, namely, sexual offences, torture, crimes against humanity, genocide and war crimes were removed from this Act.

The Bill included provisions which appeared to pervert natural justice. Lawyers objected to conferring an unprecedented statutory ‘presumption against prosecution’ on British troops in regard to ‘historic’ crimes. Such a quasi-statute of limitation” is unprecedented” in the criminal law. It will pervert justice they said.

Why does this Bill think that it is utterly exceptional for a British soldier to be prosecuted for offences committed when he was on an overseas operation,   critics asked. Why create a special category of defendant, members of the Armed Forces, and give them greater impunity for crimes.

We do not understand why cases should not be brought against this category of defendant where there is sufficient evidence of a crime having been committed and where it is in the public interest to prosecute. The fact that a person has been deployed on operations overseas is   irrelevant for prosecutions.

The clause regarding the mental state of the person to be charged gave rise to much sarcastic comment. The Bill suggests that a soldier whose judgment may be impaired, who lacks adequate self-control or whose mental health may have been affected should not be prosecuted, observed critics.

The Ministry of Defence should not be deploying service personnel in overseas operations if those individuals are unable to make sound judgments or have difficulty in exercising self-control. If a member of the Armed Forces develops an inability to make sound judgments or difficulty in exercising self-control whilst they are deployed in operations overseas, they should be promptly removed.

Armed Forces personnel are routinely called upon to make snap decisions in exceptionally difficult, often life-threatening, situations. This is what they are trained to do. Further, Armed Forces personnel are trained to use force and do not use force unjustifiably. They should not be permitted to use unjustified force and then get away with it.

Lawyers pointed out that this Act would damage the standing of the British armed forces because it is contrary to established legal norms, both domestic and international.  Also, it would give the impression that UK is unwilling or unable to investigate and prosecute for war crimes. The time period of five years given in the Act is near impossible to meet. If so, then British armed forces are at risk of being prosecuted under universal jurisdiction or before the International Criminal Court.  Lastly, the Bill goes against all international legal instruments. (Continued)