It is ironic timing that the overseas operations bill returns to parliament next week, not long after questions of international law dominated the political agenda. This government has already, brazenly, admitted that it is prepared to violate international law with the internal market bill. It is now proposing more of the same with an issue that has received less attention.
The way in which the egregious overseas operations bill violates international law isn’t complex or arcane. It seeks to introduce what has been termed a “triple lock” against the prosecution of British soldiers acting overseas. This triple lock includes a presumption against prosecution, a five-year statute of limitations and the requirement of consent from the attorney general before any prosecution can be brought. It undermines international humanitarian law while shielding the government against what may be wholly deserving claims.
The so-called triple lock will effectively introduce a statute of limitations for the offence of torture. Torture has been absolutely prohibited under international law since 1948 and is enshrined in legal instruments such as the UN convention against torture, and the Geneva conventions of 1949. Despite this prohibition, the government now seems prepared to try to amend those terms with the overseas operations bill.
The former chief of the defence staff, field marshal Lord Guthrie, has co-signed, along with Sir Malcolm Rifkind and Dominic Grieve, a letter to Downing Street making their views on the legislation clear: “We find it disturbing that the government’s approach … creates a presumption against prosecution of torture and other grave crimes (with only rape and sexual violence excepted) after five years. We believe that the effective application of existing protocols removes the risk of vexatious prosecution. To create de facto impunity for such crimes would be a damaging signal for Britain to send to the world.”
The absolute prohibition on torture is designed to prevent states trying to bend the rules. However, the overseas operations bill does just that. This could not be clearer and has already been pointed out to the government by the UN rapporteur on torture. As such, I do not believe that any current or former defence chief could support it and clearly Lord Guthrie is the first to say so publicly.
There is, however, another potentially more sinister explanation for the proposed statute of limitations and that is the potential culpability of not individual soldiers, but the British government itself.
When the overseas operations bill was being drafted, the offence of torture was, quite properly, excluded from the provisions. Somehow it found its way back in, but it is not clear who took this decision or why. As we now know from various public inquiries, the British army used unlawful interrogation techniques in Iraq and Afghanistan, which breached the UN convention on torture. If this bill passes into law, the government will have effectively legislated to protect itself from those allegations.
Most gravely, this includes the offence of rendition which, as well as being a form of torture, is also a grave breach of the Geneva conventions. While the government seeks to shield itself from blame, however, soldiers may well find themselves in the international criminal court, whose jurisdiction will be triggered if the British government chooses to avoid prosecuting them.
At the inquiry into the death of Baha Mousa – a 26-year-old hotel receptionist beaten to death by British soldiers in Iraq – Sir William Gage blamed the “corporate failings” of the Ministry of Defence for the death and said that that the British army should “uphold the highest standards” under international law. Rather than take heed of those comments, Britain has decided to water them down. Our soldiers are rightly expected to live up to those standards, even as it seems those who govern do not.
• Lt Col Nicholas Mercer was senior military legal adviser to the 1st Armoured Division during the Iraq war of 2003. He is now an Anglican priest