Legal protections for armed forces personnel and veterans serving in operations outside the United Kingdom: response to public consultation questionnaire

Working paper

The UK Ministry of Defence announced a public consultation in July 2019.* Its first proposal was a statutory 'presumption against prosecution of current or former Armed Forces personnel for alleged offences committed in the course of duty outside the UK more than ten years ago' where previous investigations had not resulted in prosecution. The Ministry of Defence intended to 'raise the threshold to be applied by prosecutors when considering whether a prosecution is genuinely in the public interest in such cases.' Investigations might be re-opened, on these proposals, only in exceptional circumstances, such as the emergence of new evidence.

In response, we argue that these proposals will not remove the uncertainty ex-service personnel face regarding investigations and potential prosecutions for alleged historical crimes during extra-territorial military operations. The proposed measures, analogous as they are to time bars, amnesties and other impediments which limit criminal proceedings for historical crimes, would be incompatible with the UK's obligations under international human rights law, international humanitarian law and international criminal law. The proposals cannot remove the possibility that service personnel will be tried before the International Criminal Court or in other jurisdictions. The proposed measures are also unduly restrictive of the circumstances in which investigations can be re-opened by the State; and the UK’s track record in investigating alleged wrongdoing during extra-territorial military operations is poor. The combination of these two factors is a serious cause for concern and may create perverse incentives, where poor investigations are conducted in the future, followed by reliance on the presumptions proposed.

Authors: Wallace, S; Stubbins Bates, E; Quenivet, N

• Peer review status: Not peer reviewed
• Publication date: 2019-10-01
• DOI: 10.2139/ssrn.3463638
• Language: English
• Keywords: UK Ministry of Defence; international criminal law; investigatory obligations; international humanitarian law; international human rights law