Content Note: This article contains brief mention of sexual misconduct.

In 2008, human rights lawyer Phil Shiner brought approximately 1,000 cases against Iraq veterans, claiming that British troops had unlawfully killed, tortured, and mistreated Iraqi civilians. But Shiner was then struck off his profession in 2017 after he was found guilty of twenty-two misconduct charges. He admitted to paying an Iraqi middleman to find his claimants, and was found to have made “unsolicited direct approaches” to potential clients. Over £30m of public funds were spent on the investigations Shiner brought against veterans despite most cases being thrown out due to their “low level” nature and the lack of credible evidence. Only seven cases were referred to the Special Prosecution Agency and almost all were immediately thrown out with Andrew Cayley, the director of the Service Prosecution Authority, stating that he was confident no veterans would be apprehended. The years of legal proceedings following Shiner’s accusations, stretching long after he was struck off, prompted a great public distaste for the conviction of war veterans. In this environment emerged the government’s ‘Overseas Operations Bill’ which recently passed decisively on its second reading with 322 ayes to 77 noes.

The bill introduces a “statutory presumption against prosecution” after five years. It applies to all forces personnel, without accounting for rank or experience. Most controversially, there is no clause in the legislation to make exception for torture and war crimes (although sexual assault is thankfully exempt). This has led John Healey, the shadow defence secretary, to argue that the legislation is at odds with both the Geneva Convention and the UN Convention against Torture. The bill, he warns, will undermine the “history and rules-based international order that Britain has sought to construct and maintain”. Dan Dolan, the deputy director of Reprieve, likewise believes that “this bill would effectively decriminalise acts of torture which took place more than five years ago”. Emma Norton, the director of the Centre for Military Justice, has pointed out that “when there are credible allegations of torture, crimes against humanity or unlawful killing, there is an obligation on the state to properly and openly investigate”, a principle which is jettisoned by this piece of legislation. Further, the bill does not cover British soldiers in Northern Ireland. Here, the government seems to accept the personhood of civilians who suffered during the Troubles but refuses to grant the same dignity and justice to those who might have been tortured further afield.

“There seems no reason for the government to make sexual assault exempt from the bill while crimes against humanity are not.”

The wording of the legislation does not distinguish between inexperienced soldiers who might have followed illegal orders given from above and high-ranking commanders who launched extreme and devastating operations involving torture and war crimes. Further, as Apsana Begum, a Labour MP who voted against the bill, points out, international investigations involving lawyers across borders and huge layers of bureaucracy take time. The five-year time limit is likely to offer a significant incentive for the government not to facilitate investigations, encouraging them instead to delay and obstruct proceedings until they have timed out.

The bill is another piece of Conservative legislation that clearly defies international law. In their briefing, the Law Society expressed grave concerns that the bill will violate Article 7 of the UN Convention against Torture and articles 2 and 3 of the European Convention of Human Rights. The example of Shiner shows that the courts are capable of rejecting claims where the passage of time has affected evidence, or where the alleged wrongdoing is spurious or extremely trivial. Further, the government’s definition of a ‘relevant offence’ is unjustified. There seems no reason for the government to make sexual assault exempt from the bill while crimes against humanity are not.

A 2018 report by the Intelligence and Security Committee identified hundreds of cases of British complicity in torture overseas, most commonly in association with the war on terror. And yet, the government has recently reneged on a decade-long promise to establish an independent judge-led inquiry into torture and rendition overseas. Rather than originating in deep-seated Conservative principles, the bill is probably best understood as a trap for Labour, an attempt which was initially intended to paint Corbyn, and now Starmer, as ‘hating the troops’. While Corbyn haplessly fell for the trap by opposing the bill, he no longer is the Leader of the Opposition and thus Conservatives are now less able to construct the narrative that Labour hates Britain. Starmer meanwhile has refused to take the bait, issuing a three-line whip requiring his MPs to abstain on the bill; his suspicion that this is an elaborate trap is underscored by his decision to sack the three shadow junior ministers who joined Corbyn’s rebellion.

There is ultimately a far bigger issue that the government is not tackling – the shameful mistreatment of veterans. The British legion has estimated that there are currently over 6,000 homeless veterans in the UK. Taitusi Rataucau, a Commonwealth-born veteran, was recently forced to crowdfund £27,000 for his NHS operation due to his immigration status. There are few government schemes that exist to help veterans to adjust to society. More provisions for the mental health and retraining of soldiers would be a far better use of parliamentary time and money.