Boris Johnson wants to make it more difficult to prosecute war crimes – he must be confronted

The Overseas Operations Bill contains a ‘presumption against prosecution’ after five years for torture and other grave crimes, which has shocked lawyers and veterans. But the government remains unmoved

Under the terms of the Bill, if if a soldier tortures or murders somebody, there would in future be a de facto expiry date for prosecution after five years, barring ‘exceptional’ circumstances (AFP via Getty Images)

The government seems to believe that if it shouts loudly enough it can drown out the facts. It can’t. Boris Johnson wants to make it more difficult to prosecute torture and other war crimes. No amount of denials can get past that simple and shocking truth, which must be confronted.

The Overseas Operations Bill, which comes for its third reading today, contains a “presumption against prosecution” after five years for torture and other grave crimes. With a Trumpian disdain for reality, ministers indignantly accuse critics – who include not just torture survivors, but everybody from a field marshal to a former attorney general and a former director of service prosecutions – of talking “nonsense” and “garbage”. They provide no supporting evidence of their own. Unsurprising – because there is none.

Critics are told that they should “actually read the Bill”. In reality, those who have read the Bill most carefully are the ones who are most worried about its contents. One of Britain’s most senior lawyers was so shocked on first reading the Bill that he wondered if he had misinterpreted its most radical implications. Depressingly, he hadn’t.

In short: if a soldier tortures or murders somebody, there would in future be a de facto expiry date for prosecution after five years, barring “exceptional” circumstances. What an extraordinary signal that sends, about Britain and respect for the rule of law.

The cross-party parliamentary committee on human rights became the latest to weigh in, pointing out that the drafters appear not to have understood the contents of their own Bill. The committee expressed “significant concerns” that the presumption against prosecution contravenes international law, and called “at a minimum” for the Bill to be amended, so that it does not apply to torture, war crimes, crimes against humanity, and genocide. Who could argue with that? So far at least, the government seems determined to do so.

The government insists that it is open for “dialogue” on possible changes to the Bill. It has, however, dismissed every amendment put forward.

Ministers publicly promote articles which erroneously claim that grave war crimes are not covered by the proposed new impunity proposals. In reality, the only significant exemption from the five-year rule is for crimes of sexual violence, an apparent nod to the government’s leadership of the Preventing Sexual Violence Initiative, co-created by William Hague and Angelina Jolie.

The exemption of rape from impunity proposals is welcome. For other crimes, however, after five years – a blink of an eye, in terms of international justice – prosecution will be subject to a series of additional hurdles that makes prosecution much harder to achieve.

The government claims the new measures are on behalf of the armed forces. But many in the military – including those who are worried by vexatious claims, and by process failures which mean some investigations last too long – are unimpressed, including in the context of new restrictions on veterans’ own claims against the government.

An official consultation asked if torture should be excluded from the “presumption against prosecution”. Inexplicably, the government’s answer to its own question was: no.  

When asked to explain this extraordinary decision, ministers sound confused. One version suggested that the large number of torture allegations makes it necessary to put obstacles in the way of prosecutions; according to that logic, there are fewer allegations of sexual violence, which means a block on prosecutions isn’t needed.

An alternative explanation (offered by  Minister for Defence People and Veterans, Johnny Mercer) was that combating rape as a tool of war is a matter of “unwavering commitment” for the government.

This second answer may come closer to the truth. Any suggestion that Britain wishes to downplay the crime of rape in armed conflict would be deeply embarrassing. The two-tier decision seems to imply, however, that accountability for torture and other crimes is somehow less deserving of Britain’s “unwavering commitment”. Put differently: the this-crime-but-not-that-crime rule makes little sense, whichever angle you look at it from.

Torture survivors, including those who have sought and been offered sanctuary in the UK, are alarmed by the Bill’s apparent nonchalance on torture. Concerns are rippling beyond Britain’s shores, too. UN experts, including the special rapporteur on torture have described as “unconvincing” the government’s insistence that the five-year expiry date does not breach international law.  

The failures of the Bill are shaming, in the broader context where the global torture ban is under threat. Donald Trump, master of the lost moral compass, likes to say that torture “absolutely works”. Populist leaders from Bolsonaro in Brazil to Duterte in the Philippines agree. In 2018, Saudi Arabia tortured a journalist to death in its Turkish consulate – with no consequences.

Historically, stretching back to the Magna Carta, Britain has been proud of its role in confronting torture. Now, the government is suggesting that torture and other crimes can be set aside, if you just wait a few short years. That is bad for Britain’s armed forces, bad for torture survivors, and bad for Britain’s reputation in the world.

Steve Crawshaw is policy and advocacy director at Freedom from Torture