The Conservative Party has announced a pledge to protect military veterans from prosecution against “vexatious” legal action over historical allegations by changing the law. The manifesto commitment was seen as offering protection in particular to veterans who served in Northern Ireland.
But the promise faced a backlash from human rights groups, with Amnesty International campaigners in Northern Ireland fearing it would place the armed forces “above the law”.
Some veterans have been demanding protection for years, as elderly ex-soldiers accused of killings and other abuses that took place during the Northern Ireland conflict face historic charges. Six former soldiers who served during The Troubles are currently facing prosecution. The current cases relate to the killings of two people on Bloody Sunday in January 1972, as well as the deaths of Daniel Hegarty, John Pat Cunningham, Joe McCann and Aidan McAnespie in separate incidents. Not all of the charges relate to murder.
The issue on how to deal with so-called ‘legacy’ cases has proven highly divisive. While many of the families of victims and their communities have fought tirelessly for answers, a recent petition which went before parliament in May after attracting more than 100,000 signatures arguing that criminal investigations should be outlawed after a certain period of time.
The decision to include the pledge in the Tory manifesto ahead of the December general election was announced brought out to coincide with Armistice Day. In a conversation with an armed forces veteran while on the campaign trail on Monday, Prime Minister Boris Johnson - who declared during the Tory leadership race in the summer that he wanted to end unfair trials of veterans where no new evidence had been produced - said he was doing his “best” to win the service personnel vote.
How do the Conservative Party want to change the law?
As part of a package of measures to support veterans if the Conservatives win the election, the party announced it would introduce legislation to ensure the Law of Armed Conflict has primacy and that peacetime laws are not applied to service personnel on military operations.
Under the proposals, the Tories would amend the Human Rights Act so it does not apply to issues – including deaths during the Troubles in Northern Ireland – which took place before it came into force in 2000.
The proposals are designed to eradicate repeated inquiries, preventing prosecutions from taking place where “no new evidence has been produced and when accusations have already been exhaustively questioned”.
Why would this change be so controversial?
How those accused of crimes during the Troubles should be dealt with has long been debated, and is one of the reasons the Northern Irish Assembly has not sat in almost three years.
Families left devastated by the deaths of loved ones in events such as Bloody Sunday – in which 28 unarmed civilians were shot, 14 of whom were killed by British armed forces during a protest march – have long campaigned for justice.
Following the conclusion of the Saville Inquiry, which investigated the circumstances around the killings, then-Prime Minister David Cameron described the events of Bloody Sunday as “both unjustified and unjustifiable”. “It was wrong,” he added.
His apology prompted some anger from a group of staunch supporters of the armed forces, who have since gone on to oppose the prosecution of former soldiers and have consistently campaigned for a form of amnesty for the ex-servicemen.
Dr Alan Greene, a senior lecturer in Law at the University of Birmingham with an expertise in human rights, explained that whilst examples of amnesties had been used with some success in the past, the changes the Tories wanted to make to the law missed one vital component – providing amnesty to those on the other side.
He told HuffPost UK: “The closest examples [to the UK’s proposals] might be amnesties in the aftermath of violent conflict in a country, but those tend to be amnesties for everybody, and used as a way to try and move on from the past.
“A good example would be the South African Truth and Reconciliation Commission, which was a way for everybody involved in post-apartheid South Africa to tell the truth and allow people to move on.
“This [the Tories’ proposal] is different in the sense that it would only be an amnesty on one side, which is then hugely problematic as you’re essentially not really digging into the root of what went wrong.”
Potential problems are not just rooted in the past.The proposal has come amid tensions over Brexit that have raised questions over security on the Irish border and the Good Friday Agreement peace treaty.
“Brexit has really just heightened the situation in Northern Ireland in terms of exposing, I won’t say old wounds, but divisions that are always just under the surface,” Greene explained.
“Brexit has potentially been turned into a Green and Orange issue in Ireland, in a way that it’s not in the rest of the UK.
“And then, to add this [the Conservative pledge] on top of it is hugely concerning.
“I’m wondering as to whether it’s a wise time to make changes, given the damage that has been done to the peace process and the relations between the communities. Given the fact that the Northern Ireland Assembly haven’t sat in three years, [partially because of debate over how to deal with legacy cases] to now add this on top of is a worrying development.”
Would the proposed changes to the law even work?
As soon as the pledge was announced, questions were raised about whether or not a change to the Human Rights Act was workable.
Greene described the proposal as “very clearly not compatible with the European Convention on Human Rights”. The Convention, and the European Court of Human Rights, are entirely separate from the EU, meaning the UK will remain signed up to the European Convention on Human Rights after Brexit.
“You have for example, the right to life, which doesn’t just oblige the state not to take your life, but it also places a very important obligation on the state to investigate any abuses where necessary,” Greene explained.
Defence Secretary Ben Wallace told BBC Radio 4′s Today programme on Monday that any changes would not affect the criminal prosecutions that are already underway, and confirmed that in future those who wanted to pursue a complaint against the armed forces would have to go to the European Court of Human Rights.
For Tories hoping the pledge will bring an end “unfair trials”, the situation is further complicated by the fact that Human Rights Act is never used to prosecute ex-soldiers anyway – there is nothing under the Act that says, for example, killing is a crime.
Murder is covered by common law, which means the way it’s punished has been developed by judges. It’s this common law which an ex-soldier could potentially be tried under, not the Human Rights Act.
This fact, Greene explains, means that the plan to change the Human Rights Act “draws a link between the Act and prosecution that maybe isn’t necessarily there”.
“The Human Rights Act really just kicks in in terms of saying the state has a duty to investigate crimes and prosecute where it is required to do so,” Greene said.
“The prosecution itself is then done under common law, so really it’s an attempt to try and get rid of a duty to investigate – which in itself is highly problematic.”