G.L. Peiris hints at law to protect soldiers from vexatious prosecution

Cites UK and US as examples of countries with such laws

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By Editor_1
A British soldier with the 1st Armoured Division guards at a checkpoint on the road to Basra in March 2003 -DAN CHUNG/Pool/ AFP
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By P. K. Balachandran

COLOMBO – The Sri Lankan Minister of Education and legal expert, Prof. G. L. Peiris, is quoted in the local media as saying the government will not hesitate to amend the Constitution to protect soldiers from vexatious prosecution of the kind recommended by the UN Human Rights High Commissioner Michelle Bachelet.

The report of the UN High Commissioner for Human Rights, Michelle Bachelet, to the on-going 46th Session of the Council had recommended that Sri Lanka be taken before the International Criminal Court (ICC) on war crimes charges. This, despite the fact that Sri Lanka is not a signatory to the Rome Statue which set up the ICC.

Peiris pointed out that while the UK and the US had taken legal steps to protect their soldiers from being prosecuted for alleged crimes committed overseas, both countries have been relentlessly harassing Sri Lanka by constantly accusing it of not proceeding against human rights violators and ‘war criminals’ in its armed forces.

In November 2020, the British Parliament had adopted a bill to prevent ‘vexatious’ prosecutions of military personnel and veterans over war crimes allegations. The prosecution of British soldiers for alleged past crimes in Northern Ireland, and in more recent conflicts in Iraq and Afghanistan, had dogged the British forces and the government for years.

The House of Commons passed the Overseas Operations (Service Personnel and Veterans) Bill by 345 votes to 260. The bill was then sent to the House of Lords, the UK Parliament’s upper chamber. Defence Secretary Ben Wallace told the House of Commons that the bill would deliver on the Conservative Government’s 2019 election promise to protect service personnel and veterans from “vexatious claims and endless investigations”.

The legislation discourages the prosecution of current or former soldiers for alleged offences committed in overseas operations more than five years ago. Wallace said: “For decades the men and women of our armed forces have been faced with the prospect of repeated investigations by inquest and police, despite the vast majority having acted in accordance with the rule of law and often at great personal risk. That is why the government will today legislate to protect our veterans against repeated reinvestigations where there is no new and compelling evidence against them and to end vexatious claims against our armed forces.”

According to the British Ministry of Defence (MoD), the British military served with great courage and professionalism in Iraq and Afghanistan. “We hold them to the highest standards. It is government policy that military operations are conducted in accordance with the law of armed conflict and where allegations are raised, they are investigated,” the ministry said.

Veterans Minister Johnny Mercer, a former army officer who served in Afghanistan, assured the legislation “does not decriminalize torture” but strikes “an appropriate balance between victims’ rights and access to justice.” The government said military operations will continue to be governed by other international humanitarian laws, and denied the bill amounts to an “amnesty” for British troops. The draft law only seeks to limit false and old allegations.

The UK military has been accused of covering up credible evidence of war crimes against civilians in Afghanistan and Iraq. According to an agency report, an independent British investigator looking into the Iraqi allegations said that all but one of thousands of complaints — which ranged from rape and torture to mock executions and other atrocities — were dropped.

But the MoD was looking at it from another angle, the phenomenon of going for litigation even without a credible case. It said that military operations in Iraq resulted in nearly 1,000 compensation claims for unlawful detention, personal injury and death. There were also about 1,400 judicial review claims against the MoD seeking investigations and compensation for a variety of alleged human rights violations.

Be there is opposition to the Act in various quarters including the military. In September 2020 the former head of the armed forces, Field Marshal Charles Guthrie, ex-Defence Secretary, Malcolm Rifkind, and former Attorney-General, Dominic Grieve, wrote to Prime Minister Boris Johnson saying that creating de facto impunity for crimes would damage the image of Britain. The country’s most senior military judge had warned Wallace that the legislation could make British troops more likely to face prosecution for war crimes at the International Criminal Court (ICC), The Times reported.

Rachel Logan, of Amnesty International UK, described the reports of crimes committed in Iraq and Afghanistan as “deeply troubling”. She said: “If true, those responsible for sanctioning and carrying out torture and other war crimes, at all levels, must be held accountable and, where appropriate, prosecuted.”

The US is yet to ratify the Rome Statute that created the International Criminal Court (ICC). This is to protect its military personnel from prosecution for war crimes and other rights violations abroad.

The primary objection to the ICC is that it will impede the United States’ efforts to carryout military operations and foreign policy programs, and impinges on the sovereignty of the United States. Detractors of the US policy on the ICC depict this as reluctance to be held accountable for gross human rights violations.

The ICC could be used by some countries to bring trumped-up charges against American citizens, who, due to the prominent role played by the United States in world affairs, may have greater exposure to such charges than citizens of other nations, it is pointed out. It is also said that the Office of the Prosecutor, an organ of the ICC that is not controlled by any separate political authority, has unchecked discretion to initiate cases, which could lead to “politicized prosecutions.”

The American Service Members’ Protection Act (ASMPA) of 2002 prohibits cooperation with the ICC by any agency or entity of the US federal government, or any State or Local government. No American official agency can provide specific assistance, including arrest, extradition, seizure of property, asset forfeiture, service of warrants, searches, and taking of evidence. It prohibits agents of the ICC from conducting any investigative activity on US soil related to matters of the ICC.

The United States is pursuing bilateral ‘Article 98’ agreements to preclude extradition by other countries of US citizens to the ICC.

However, the US did not exercise its veto power in the UN Security Council to prevent the referral of a case against Sudan’s leaders for alleged genocide in Darfur. It had earlier said it would not oppose the prosecution of the likes of Saddam Hussein by the ICC. The US is selective in its approach to the ICC.

-ENCL

 

 

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