Ministry of Defence impunity: the Overseas Operations (Service Personnel and Veterans) Act 2021

This article critically interrogates the policy objectives of the Overseas Operations (Service Personnel and Veterans) Act 2021 and its means to achieve them. While the Ministry of Defence claimed the legislation aimed to protect service personnel and veterans from the “problem of ‘lawfare’” following “repeated investigations … in connection with historical operations”, the Act, despite amendments, continues to strengthen impunity of the British Government for human rights violations, and international and domestic crimes committed in overseas military operations. It does so through three flawed modus operandi: introducing an unwarranted presumption against prosecutions, the superfluous curtailing of judicial discretion over time limitations to bring tort and human rights claims, and the securing of finality of claims despite less-than-adequate investigations. As such, the Act remains deeply problematic as it intentionally curtails the bringing of the types of claims that led to the International Criminal Court’s probe into British war crimes in Iraq. It is argued that the consequences of the Act’s policy aims are symptomatic of the British state’s refusal to confront the crimes, liability, and human rights violations of proximate military conflicts such as Iraq and Afghanistan and limit claims arising from abuse committed during future overseas operations. More generally, the Act is part of a wider attempt by this government to put the executive beyond legal or parliamentary reproach.

This is a pre-copyedited, author-produced version of an article accepted for publication in Public Law following peer review. The definitive published version Shiner, Bethany and Chowdhury, Tanzil (2022) Ministry of Defence impunity: the Overseas Operations (Service Personnel and Veterans) Act 2021. Citation: P.L. 2022, Apr, 289-310 is available online on Westlaw UK http://legalresearch.westlaw.co.uk/