UK bill and Dutch case highlight developing context for war crimes litigation

Neil HodgeFriday 29 May 2020

The UK government argues that such claims and investigations have ‘the potential to do great damage to morale, and to undermine not only operational effectiveness, but also [the UK’s] ability to recruit future service personnel.’

The government says that military operations in Iraq resulted in nearly 1,000 compensation claims against the Ministry of Defence (MoD) for unlawful detention, personal injury and death, while there were also approximately 1,400 judicial review claims against the MoD seeking investigations and compensation for a variety of alleged human rights violations. However, the government does not say how many of these claims were vexatious.

The Bill would create what the government calls a ‘triple lock’ with respect to prosecution decisions about historical offences. As part of this, any prosecution would require the consent of the Attorney-General – or Advocate General in Northern Ireland – to proceed. Another part would involve the presumption against prosecution once five years have elapsed from the date of an incident; the intention would be for it to be exceptional for prosecutors to decide that a serving or ex-soldier should be prosecuted for alleged offences on operations outside the UK.

Under the new law, other requirements would include the need for a court to consider the ‘operational context’ when deciding whether to extend the normal time limits for bringing civil claims for personal injury or death and for bringing claims under the Human Rights Act in connection with overseas operations. Future governments would also be required to consider derogating from the European Convention on Human Rights in relation to significant overseas military operations.

The Bill doesn’t apply to operations within the UK, so incidents that took place in Northern Ireland would be excluded from its scope. The government has announced that it will introduce separate legislation to ‘address the legacy of the past in Northern Ireland’, which will seek to establish equal treatment for veterans who served in Northern Ireland as compared to personnel who served elsewhere.

Johnny Mercer, the Minister for Defence People and Veterans, stated that ‘This package of legal measures will reduce the unique pressure faced by personnel who perform exceptional feats in incredibly difficult and complex circumstances. This important next step has gone further than any other government before to protect military personnel who put their life in jeopardy to protect us.’

Steven Powles QC, Co-Chair of the IBA War Crimes Committee and a barrister at Doughty Street Chambers, however, is against the move. ‘There can and should be no limitation period on bringing claims against UK service personnel. It would not only be contrary to international law, but also send a very negative signal,’ he says.

‘There can be no time limit for making allegations of torture under the UN Convention against Torture or War Crimes before the International Criminal Court. It makes no sense for the UK to take a different approach,’ he adds. ‘Moreover, UK armed forces enjoy a hard-earned reputation around the world. That reputation can only be maintained if there is a willingness to hold those responsible for serious misconduct to account, no matter when such misconduct occurred. There can be no impunity for international crimes.’

In late March, meanwhile, the District Court of The Hague (the ‘Court’) ruled that 11 men were executed as a result of misbehaviour by Dutch soldiers in the Indonesian province of South Sulawesi between December 1946 and April 1947. The majority of the killings were summary executions during a time in which the Netherlands attempted to maintain its colonial rule of the country following the Second World War.

The verdict marks the end of more than eight years of litigation. The Dutch state had argued for the claims to be struck out, given the number of years that had passed since the acts in question were committed.

83-year-old Andi Monji witnessed his father’s execution and travelled to the Netherlands to give his account of events to the court. He was awarded €10,000. Eight widows and three children of other executed men were awarded compensation of between €123.48 and €3,634 for loss of income. The Court noted that the sums granted to the relatives of victims were ‘disproportionate’ to the suffering caused, and that the amounts awarded were relatively low by Dutch standards because many of the victims were farmers who received low incomes.

In 2013 the Dutch government introduced an out-of-court settlement scheme that allowed compensation for the widows of summarily executed men. However, the government did not make similar arrangements for the children.

Powles welcomes the Court’s decision. ‘International crimes can, and often do, have an intergenerational effect on victims,’ he says. ‘Trauma is easily passed from one generation to the next, so it is right that historic crimes are recognised and appropriate compensation paid. Money is not everything, but it goes some way to help heal the wounds.’

Earlier in March, King Willem-Alexander of the Netherlands apologised on behalf of his country for the ‘excessive’ violence committed by Dutch troops during the 1945–49 campaign in what was then known as the Dutch East Indies. Dutch law firm Prakken d’Oliveira, whose lawyers Liesbeth Zegveld and Brechtje Vossenberg have represented families of victims of the campaign, called the King’s apology ‘a welcome surprise to victims and surviving relatives of the violence’ in a statement.