Towards Combat Impunity in the UK? Critical Reflections on Current Proposals to Shield the Military from Accountability Norms

Abstract

The United Kingdom (UK) is currently considering a number of initiatives and measures aimed at protecting military service personnel from investigation and prosecution. Some of these, including proposals for a Statute of Limitations covering crimes committed by service personnel in conflicts abroad, are far-reaching and controversial from a human rights perspective, as they aim to shield the military from accountability norms, arguably effectively amounting to a ‘self-amnesty’ for State actors. If implemented, this would – as one commentator notes – put the UK in the same league as “former dictatorships in Argentina and Chile and [...] Robert Mugabe’s government in Zimbabwe”, and “for the UK to join such a list would be quite extraordinary.”2 At the same time, British authorities have stated their intention to derogate from the European Convention on Human Rights (ECHR) in future armed conflicts; are debating whether to amend its own Human Rights Act, which implements into domestic law the ECHR; and are considering restricting UK courts’ ability to adjudicate civil claims originating from conflicts abroad. The UK might also introduce special legislation covering members of the armed forces only which would turn convictions for murder into manslaughter. The current proposals must be viewed in light of other measures, action and inaction characterizing the Government’s approach to accountability norms in the context of military campaigns, including ineffective – some would say dysfunctional – mechanisms to investigate crimes committed in conflict zones; a general failure to address the systemic issues that permit frequent abuses in military campaigns; opposition to International Criminal Court (ICC) scrutiny; and attacks on the legal profession and human rights advocates. Taken together, this paper argues, this raises broader questions concerning the UK’s commitment to upholding and enforcing the rule of law in situations of armed conflict (and occupation). The UK, nominally a strong supporter of the international rule of law, has played a vital role in advancing the normative and institutional framework of international humanitarian law (IHL) and international criminal justice, and has sponsored and supported transitional justice and accountability processes around the globe. However, if the UK takes measures that would effectively grant combat impunity for its own troops – accused of committing serious crimes under international law in situations such as Northern Ireland, Iraq and Afghanistan – this could undermine its role as a strong defender of human rights in the global arena and a champion of the international rule of law; create additional challenges for upholding accountability standards around the world and, in the longer run, undermine the legitimacy and efficiency of normative and institutional frameworks that seek to advance accountability norms.