https://www.thetimes.co.uk/article/l...unal-36nbs3bzj
Law to protect soldiers ‘could leave them facing war crimes tribunal’
Legislation to curb vexatious claims against soldiers is “ill conceived” and could leave them more likely to face prosecution for war crimes, Britain’s most senior military judge has warned. Judge Jeffrey Blackett raised “significant concerns” about the Overseas Operations Bill in a letter, seen by
The Times, that he sent last month to Ben Wallace, the defence secretary. A copy of the letter was also sent to the veterans minister, the head of the military and the director of the Service Prosecution Authority.
He warned that although the proposed legislation provides protections for current and former troops from prosecution for domestic offences, it increased the likelihood of them facing war crime charges at The Hague. Judge Blackett, who is judge advocate general of the Armed Forces, also argued that the Bill could “bring the UK armed forces into disrepute” by potentially preventing the prosecution of serious crimes........
The Bill is due to come before the Commons for its second reading before the summer recess, although no date has been set.
It aims to curb bogus and historical allegations via a “triple lock” of measures, including a statutory presumption against criminal prosecution once a five-year period has elapsed after an alleged crime. To override the presumption and press ahead with an “exceptional” prosecution, compelling new evidence must be adduced and the attorney general’s consent secured.
Judge Blackett, who said in his letter that he had not been consulted on the proposed legislation before it was published, called on the government to “think again” about the best way to protect soldiers and veterans from unfounded claims. He set out multiple major concerns about the Bill.
Since it does not cover International Criminal Court (ICC) offences, “it will likely encourage police and prosecutors to focus on war crimes, rather than domestic crimes, to evade the presumption against prosecution” after five years, he said. In addition, if the protections for personnel contained in the Bill were invoked, the ICC itself “may well determine that the UK is (unable or unwilling) to prosecute and initiate its own proceedings”. He warned: “This increases the likelihood of UK service personnel appearing before the ICC in the future.”
He cautioned that the Bill entailed a risk that serious violations would go unpunished, undermining the reputation of the vast majority of UK service personnel who do act within the law. It would be “inconceivable” if crimes such as the shooting dead of a wounded Taliban fighter in Afghanistan, for which Royal Marine Sergeant Alexander Blackman was convicted of manslaughter, escaped prosecution because they came to light after five years, he added.
Judge Blackett also reiterated concerns first raised in March by Dominic Grieve, the former Conservative attorney general, that sexual offences were exempt from the legislation’s presumption against prosecution after five years. This “inconsistency in approach” could lead to the “inequitable” scenario where a soldier who murdered a detainee would have a higher degree of protection from prosecution than one who sexually assaulted a detainee.
Furthermore, the effect of the proposed limitation period after alleged criminal activity “would encourage an accused person to frustrate the progress of investigation past the five-year point to engage a high bar for prosecution”, he said.
Judge Blackett acknowledged the “unnecessary heartache” of soldiers and veterans who faced vexatious claims about their conduct in Iraq and Afghanistan. He said that he shared “unease” about state investigations, which went on “far too long”.
However, he concluded: “The bill as drafted is not the answer.”
It is understood that the defence secretary has not yet replied to the letter, which was sent on May 14, but that he intends to do so......