Prosecution of military abuses should not be time-limited, argues Essex academic

Setting a time limit for legal action against former service personnel could inadvertently shield war criminals from prosecution, an Essex academic has argued.

Dr Carla Ferstman, from our Human Rights Centre, and Dr Thomas Obel Hansen, from the School of Law and the Transitional Justice Institute at Ulster University, have argued that proposals for a time limit would not be in the long term interests of the military or the UK Government as a whole.

The two academics submitted joint evidence to the Statute of limitations – veterans protection inquiry, which published its findings on Monday 22 July.

The issue of investigations into ex-service personnel has gained significant media attention in recent months.

The Inquiry, by the House of Commons Defence Select Committee, looked into how former service personnel might be protected from investigation and re-investigation for events that happened many years, sometimes decades, earlier.

The Inquiry report calls for the next government to introduce a bill to establish a "presumption against prosecution" for alleged offences occurring in military operations overseas.

Dr. Ferstman said: "This proposal is extremely concerning, given the clear and unambiguous obligation under UK and international law to investigate all credible allegations of serious abuses, whenever they occurred. Such a presumption goes counter to those clear and unambiguous obligations."

Dr Ferstman and Dr Hansen said in their submission: "The possible introduction of a statute of limitations... is, we would argue, an overly blunt instrument to address any challenges with the investigations.

"In certain circumstances, it would make it impossible for the UK to investigate or prosecute international crimes."

The two legal experts point out that a statute of limitations could actually lead to more prosecutions against UK citizens in the International Criminal Court (ICC). 

A statute of limitations would "make more likely the opening of a full investigation by the ICC in respect of the situation in Iraq (and potentially other situations including Afghanistan)... because the adoption of a statute of limitations covering international crimes sends the signal that the UK Government is not committed to principles of accountability."

They argued that the legal process in these cases actually needs to be strengthened, to ensure accountability.

They encouraged the Defence Select Committee to explore "a more detailed analysis of why investigations were judged to be so weak and ineffective and consequently resulted in judicial findings which saw the need for many to be re-opened or re-started."