Torture has been considered a crime across the globe for several decades, even meeting the definition of jus cogens. This term makes torture illegal for all states, regardless of which national or international treaties they have ratified. jus cogens states that once common law dictates the general opinion of the criminality of a behaviour, the severity is considered sufficient and it is considered (by courts and the international community) to be a crime of no-derogation. The illegal nature of the crime of torture therefore exists even when states declare a state of emergency. Only four human rights are non-derogable:
the right to life
the right to be free from torture and other inhumane or degrading treatment or punishment
the right to be free from slavery or servitude
the right to be free from retroactive punishment or application of laws
jus cogens norms are so valued that the concept is memorialised in Article 53 of the Vienna Convention of the Law of Treaties where it states that “a treaty is void if, at the time of its conclusion, it conflicts with peremptory norms of general international law”. jus cogens demonstrates the highly significant value placed on specific rights and freedoms. It is also worth noting that most rights that have obtained this status have done so after a long journey towards becoming recognised.
The United Kingdom ratified the Convention against Torture (CAT) 1984 and signed up to the Optional Protocol on the Convention against Torture (OPCAT) in 1988. OPCAT utilises National Preventative Mechanisms (NPMs) to ensure the prevention of torture in the UK. Many countries have several NPMs; the UK has 18, ranging from prisons to immigration and school bodies. These organisations correspond with OPCAT and the treaty body of the CAT, the Committee against Torture, to ensure the likelihood of torture taking place in the UK is minimised. Article 5 of the CAT dictates that as a signatory (alongside the jus cogen status) the UK has an obligation not just to prevent torture on its own territory but also by its nationals and armed forces in other states “under its jurisdiction”. This obligation applies both in armed conflict and during periods of peace.
Despite its journey to securing jus cogens status and the early ratification of the CAT, the “UK government is attempting to bend the rules on torture”. This is demonstrated by the Overseas Operations Bill (OOB) which was presented to Parliament in late 2020. In response, Nicholas Mercer, senior military legal adviser to the 1st Armoured Division during the 2003 Iraq War, claims that the changes the British Government seeks to implement to national law “undermine international humanitarian law while shielding the government against what may be wholly deserving claims”.
The OOB appears to be trying to introduce several changes; the first, a sort of statute of limitations of five years for the offence of torture when committed by members of the British army when overseas. It also requires that the Attorney General give consent before the prosecution commences and that there be a presumption against prosecution. These are standards that have been labelled by the former Chief of the Defence staff, Field Marshal Lord Guthrie, as giving “de facto impunity” to British soldiers.
Lord Guthrie's argument is also supported by statements made by the United Nations Special Rapporteur on Torture. As the UN Office of the High Commissioner recently stated, “UN human rights experts today called on the UK Parliament to reject a government bill they say would give British soldiers advance immunity for war crimes and crimes against humanity”.
The Non-Governmental Organisation, Freedom from Torture, has also shared its concerns surrounding the bill, claiming that if implemented, it “would mean that British soldiers accused of committing war crimes, including torture, in Iraq and Afghanistan, could go unpunished”.
The bill not only seems to provide a level of immunity for those who commit torture after five years have passed but will seek to limit the consideration of compensation claims by victims when being claimed more than six years after the crime has been committed. The bill appears to reduce vexatious prosecutions (defined as those prosecutions that occur after many years, where both defence and prosecution are difficult because witnesses’ recollections can fade).
From the perspective of the UK government, the amendments to the bill are not designed to allow perpetrators to escape punishment or commit crimes of torture with the knowledge that they will not be prosecuted. The government declares that its “position on torture has not changed. The UK Government unreservedly condemns the use of torture and remains committed to its obligations under international humanitarian and human rights law, including the UN Convention against Torture”.
The British government responded to international concern surrounding the bill, assuring critics that it will not prevent further prosecutions. Rita French, the UK Human Rights Ambassador, addressed the UN Special Rapporteur’s concerns, stating that the presumption is not a statute of limitations and prosecutions can still occur. However, the “investigation of allegations is (to hopefully be) conducted as expeditiously as possible” for the benefit of all parties. Regarding torture and other cruel, inhuman or degrading treatment or punishments, she reiterates that six years is a “reasonable timeframe” to allow overseas claimants to prepare their claim against an alleged perpetrator of torture.
The bill understandably wants to make sure claims against British nationals who commit torture are as expedite as possible, ensuring fairness for both defence and prosecution, and fair redress for victims. It is somewhat understandable to try to limit case initiation to six years, to prevent unclear memory, loss of evidence, and further limitations from getting in the way of fair trial rights and standards. However, protections already exist within international law, such as fair trial rights listed in various treaties such as the International Covenant on Civil and Political Rights (ICCPR). These ensure that claims are bought within the right circumstances and meet set standards, making the new reservations unnecessary.
Whatever the UK government's intentions are with the bill, the fact is that it will potentially allow British soldiers to commit serious crimes, such as torture, and thereby contravene international law and human rights. Moreover, it protects them against being charged for such violations. Whether this would actually happen or not is irrelevant — the UK is a member of OPCAT, obligating the country to do everything within its power to prevent torture and to subsequently punish crimes of torture. The Overseas Operations Bills directly contradicts the UK’s obligations under both CAT (to prevent and punish torture) and OPCAT (to take active steps to prevent). The UK government should not effectively grant impunity or refuse to investigate or prosecute allegations of torture, regardless of when the crime was committed (taking into account retrospective application).
Further, while from the outset the bill may seem to protect British troops who commit crimes, it may place them in danger. In the event of capture or being detailed by a foreign nation, the UK can hardly ask that state to abide by international laws and norms against torture if it is not doing this itself. In this way, the UK’s actions and behaviours towards other state’s troops and citizens may set an example towards the way their own troops and citizens are treated.
The UK has set a good example in many areas by adopting domestic laws to fit international regulations, such as the Equality Act 2010 and Council of Europe Convention on Action against Trafficking in Human Beings in 2008. The UK even helped to set the stage for an absolute ban on torture, ruled out in English law as far back as the 13th century. Yet, this bill seems to be taking a huge step backwards in regards to the signal it sends to the rest of the world about the UK's priorities. The bill may intend to communicate a wish for efficient and fair trials but is more likely to be interpreted as leaning towards protecting the UK government from claims of torture, The UK can also be seen to prioritise its own sovereignty and nationals over the rights of other countries’ citizens, including alleged victims of torture from other states.
Victims of any nationality should be allowed to bring their concerns and accusations to any state and at any point. There should be no restrictions on claim timeframes for crimes that meet jus cogens definition. The war tribunals in Rwanda and Yugoslavia have shown that it is possible to achieve justice decades after a crime has taken place, despite issues with evidence and the memory of those involved. If the UK wishes to continue being seen as “committed to its obligations under humanitarian and human rights law” then it may need to seriously address local and international concerns over this bill. This will involve more than mere assurances that the UK still condemns torture. It will involve demonstrations that the UK prevents and punishes torture even when committed by its government or citizens.