Legal Protections for Armed Forces Personnel and Veterans Serving in Operations Outside the United Kingdom: Response to Public Consultation Questionnaire

19 Pages Posted: 15 Oct 2019

See all articles by Stuart Wallace

Stuart Wallace

University of Cambridge - Homerton College

Elizabeth Stubbins Bates

Merton College, University of Oxford

Noelle Quenivet

University of the West of England (UWE) - Bristol Law School

Date Written: October 1, 2019

Abstract

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.

Keywords: investigatory obligations, international human rights law, international humanitarian law, international criminal law, UK Ministry of Defence

JEL Classification: K33, K14

Suggested Citation

Wallace, Stuart and Stubbins Bates, Elizabeth and Quenivet, Noelle, Legal Protections for Armed Forces Personnel and Veterans Serving in Operations Outside the United Kingdom: Response to Public Consultation Questionnaire (October 1, 2019). Available at SSRN: https://ssrn.com/abstract=3463638 or http://dx.doi.org/10.2139/ssrn.3463638

Stuart Wallace

University of Cambridge - Homerton College ( email )

Hills Road
Cambridge, CB2 8PH
United Kingdom

Elizabeth Stubbins Bates (Contact Author)

Merton College, University of Oxford ( email )

Merton College
Oxford, OX1 4JD
United Kingdom

HOME PAGE: http://https://www.merton.ox.ac.uk/people/dr-elizabeth-stubbins-bates

Noelle Quenivet

University of the West of England (UWE) - Bristol Law School ( email )

Frenchay Campus
Coldharbour Lane
Bristol, BS16 1QY
United Kingdom

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