Why Civil Claims are a Necessary Part of the Arsenal to Address Military Excesses

Carla Ferstman and Noora Arajärvi, University of Essex, published a report which assesses the UK Overseas Operations (Service Personnel and Veterans) Bill, which makes provision about legal proceedings and consideration of derogation from the European Convention on Human Rights in connection with operations of the armed forces outside the British Islands.

The Bill was introduced in Parliament on 4 November 2020 by Mr Ben Wallace, Secretary of State for Defence of the United Kingdom, and sets out a series of measures intended to make it more difficult to prosecute current and former Service personnel for conduct occurring more than five years ago when operating overseas.

The Bill also restricts judicial discretion to allow civil claims for personal injury and/or death and claims under the Human Rights Act 1998 in respect of overseas operations by requiring the court to consider additional factors (on top of those that already exist in law) when deciding whether to allow a claim outside the set limitation periods.

The proposed legislation has provoked considerable debate in both Houses of Parliament, amongst former service personnel, lawyers, academics and civil society. Much of the discussion surrounding the Bill has also focused on the extent to which the proposed changes to how decisions about potential prosecutions are taken will negatively impact upon the capacity for the UK to implement its obligations under international human rights law and the International Criminal Court statute.

The focus of this report

The report focuses on civil claims for personal injury and/or death and claims under the Human Rights Act 1998 in respect of overseas operations.

The Overseas Operations (Service Personnel and Veterans) Bill sets out several rationales for the introduction of the reforms to civil and human rights claims, and the authors of the report saw value in scrutinising these justifications in some depth, given the significance of the proposed reforms and the limited attention they have received to date.

As the report explains, the civil claim longstop would have the effect of shielding the Ministry of Defence from public scrutiny and legal accountability and would take away crucial means by which to ensure transparency and to promote institutional lessons learned.

To make this assessment, Carla Ferstman and Noora Arajärvi carried out a review of civil and human rights judgments pertaining to overseas operations, issued within the last twenty years. These have mainly concerned claims against the Ministry of Defence, though their sample has also included claims involving overseas engagements by the security services and other parts of government to the extent relevant.

The report argues:

  • Considering the checks and balances within the UK legal system and how it operates as a whole, impeding access to civil and human rights claims ignores the vital role such claims play in ensuring that criminal investigations and prosecutions and related accountability processes are not shut down prematurely. A crucial means of oversight will be lost.
  • Victims’ access to reparation is an important value worthy of protection and a fundamental and obligatory aspect of UK human rights obligations. This is especially the case for claims involving wrongful death, torture, and ill-treatment; and
  • The introduction of limitation periods for civil and human rights claims without a possibility for judges to be able to use their discretion to extend them where the exigencies of the circumstances so require, is a significant and unjustifiable limitation of claimants’ access to reparation.

Carla Ferstman‘s and Noora Arajärvi’s research was facilitated by the University of Essex’s ESRC Impact Acceleration Account.

A copy of their report can be accessed here.

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