The recent government announcement that British soldiers would be protected from lawsuits launched under European Court of Human Rights is a heavy blow to the rule of law, and will make it ever more difficult to seek accountability for abuse.
Though soldiers would still be accountable under international humanitarian law, including the Geneva Convention and UK Criminal Law, the proposal by Theresa May to remove Britain from ECHR human rights laws in conflict moves us closer to the realm of soldier impunity than before.
This is just the latest development in a long list of due process impingements – instances in the ‘War on Terror’ where perpetrators have been sheltered from legal punishment for war crimes. These range from the lack of accountability following the Senate Report on Torture, to the horrific leaked photos from Abu Ghraib prison that resulted in light reprimands, to the gagging of a soldier who threatened to expose abuses in Iraq and Afghanistan.
In the same way that MI5 harassment at home is justified in the name of national security, so will soldiers’ abuses overseas be excused in the name of ‘fighting terror’. All of this impunity fuels further grievances, which in turn feeds further political violence.
Hiding the ‘bad apples’
Prime Minister Theresa May’s reasoning – backed by several MPs – is that removing Britain from the ECHR will protect troops from “vexatious” court claims. But this is clear evidence that government is capitalising on a populist rhetoric in order to extend impunity.
Not only is the Prime Minister using false claims to smear what could and have been entirely valid claims, but the government is also proposing sweeping gestures hidden within their words: they are suggesting that they wish to withdraw from the ECHR only, but their reasoning is to protect soldiers from claims. This is much more far reaching than simply a withdrawal from the ECHR.
We are reminded that soldiers have gone through ‘ordeals’ by ‘parasitic lawyers’, however what these comments conceal is that the soldiers do not act independently of their chain of command. By protecting the soldier, the politicians who may have been involved also shield themselves from any accountability. Such protection will not only cover abuses against civilians – for which there simply must be accountability if we are to stop the cycles of violence – but it can also swing in the opposite direction and implicate the entire army through guilt by association.
In fact, some of the most important claims against soldiers have been brought from those within the establishment – the Abu Ghraib leaks are a case in point. Furthermore, claims before the IHAT ( Iraq Historic Allegations Team) have also come from former soldiers that do not seek to benefit financially but rather seek that the rule of law is upheld.
These ‘whistleblowers’ need to have the international legal frameworks to pursue their claims, and announcements such as these only serve to deter such claims and discourage those within the armed forces or state institutions from seeking accountability. Lt Col Nicholas Mercer, the army’s former chief legal adviser in Iraq, had previously criticised the government for suggesting that claims were “spurious”. He said that “These are cases of very high importance.” and that “concerns were raised by me and others at the very outset of the Iraq war in 2003 about the mistreatment of prisoners by the British army.” To date the government has paid out nearly £20m in compensation and nearly 2000 claims and judicial reviews remain outstanding.
For families and victims, this lack of due process means it will be harder for them to hold the government to account and gain answers, something that Des James, father of Cheryl James, who died at Deepcut Barracks at age 18, has spoken up against in recent news.
A more unequal world will make us more unsafe
Where the ‘War on Terror’ was supposed to stand for ‘civilised values’ this latest development is more evidence that it is in fact these very values that the ‘War on Terror’ continues to threaten.
Laws governing armed combat and protecting civilians in conflict zones are essential if we are to preserve our universal humanity. Rejecting an international court’s laws on these issues not only violates this principle, but it is also evidence of the further development of a two-tier justice system, where members of the establishment are protected and the communities that suffer under them are not.
This is part of a pattern of abuse with which we are all too familiar, where might is right and vulnerable populations are fair game – in many ways, it furthers the assertion that some lives are worth more than others. This emphasises that the world we live in is still profoundly unequal. Though this is a source of motivation for many to continue the campaign for justice, for some it is a source of ongoing frustration.
The government has manufactured a narrative that has shifted the blame onto those seeking redress for victims of violations. The truth is violations occur, and as aformer soldier wrote “If you stop the violations, you stop the litigation”. However calling for increased impunity while hiding behind boisterous rhetoric and rapturous neo-conservative applause, bolsters the notion that this government and indeed its army have something to hide.
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