AUWCL Center for Human Rights & Humanitarian Law Submits Comments to UK Parliament Opposing the Overseas Operations (Service Personnel and Veterans) Bill 2019-21
On behalf of the AUWCL’s Center for Human Rights & Humanitarian Law’s Anti-Torture Initiative and Impact Litigation Program, various professors and researchers addressed the U.K. Parliament’s Human Rights Committee on September 8, 2020. Professor Juan E. Méndez, together with Vanessa Drummond, Katherine Holcombe, and Stephanie Herrmann, urged Parliamentarians to reject the Overseas Operations (Service Personnel and Veterans) Bill 2019-21. They argued that protecting the right to be free from torture critically depends on States fulfilling their obligations under international law to investigate, prosecute, and punish acts of torture. They feared that the Bill, if enacted, would undermine and inhibit fulfilling these obligations, and urged Parliamentarians to reject that draft legislation.
The draft Bill would make it nearly impossible for the U.K. to hold perpetrators accountable. They identified four reasons why the Bill would perpetuate impunity. First, if five years pass before a victim of punishable conduct has an opportunity to file a complaint, the Bill’s “presumption against prosecution” will place an undue burden on victims to show that their case is exceptional and that perpetrators should be prosecuted.
Second, statutes of limitations on claims in tort and under the U.K.’s Human Rights Act would prevent perpetrators from being prosecuted, in violation of international law. For instance, the Convention against Torture (CAT) requires that States eliminate any legal obstacles preventing the investigation and prosecution of torture or ill-treatment. States must also ensure impartial investigations whenever there are “reasonable grounds to believe that an act of torture has been committed in any territory under its jurisdiction as the result of its actions or omissions.” (CAT/C/GC/3, para. 23).
Third, under the Bill the decision of whether to prosecute would ultimately rest with the Attorney General, when the CAT requires independent, judge-led inquiries into allegations of torture. The draft Bill does not provide for a judge-led inquiry into allegations of torture overseas, thereby making it even less likely that victims will have their day in court.
Fourth, by eliminating judicial discretion to prosecute claims of torture after a six-year statute of limitations, the U.K. has detracted from the independent investigation of torture allegations, as well as imposed a statute of limitations for the crime of torture and a de facto amnesty for perpetrators.
The AUWCL experts concluded that the Bill’s provisions not only make accountability for torture unlikely, but also undermine a victim’s ability to seek redress. The lack of clear guidance as to thorough, prompt, independent investigations and easy access to a remedy for victims, may only foster a culture of impunity for perpetrators of torture in the U.K.’s armed forces. For all these reasons they urged the Parliamentarians to reject the draft Bill and to uphold the U.K.’s obligations to prevent and to punish acts of torture.
The AUWCL’s Center for Human Rights and Humanitarian Law’s Anti-Torture Initiative was created to expand the reach and practical implementation of the work of the former United Nations Special Rapporteur on Torture Juan E. Méndez to fight and to prevent torture worldwide. The Center's Impact Litigation Program promotes and strengthens the rule of law and democracy around the world through advocacy and litigation at international courts and mechanisms. A central focus of its litigation efforts is ensuring respect for human rights, and particularly, the right to be free from torture.