Over the past decade, stories about British soldiers facing prosecution for alleged crimes committed in Iraq, Afghanistan and Northern Ireland have steadily appeared in the news. In 2013, “Marine A”, Sgt Alexander Blackman, became the first British soldier to be convicted of battlefield murder since the second world war, after being caught on camera killing an injured Taliban insurgent in Afghanistan. The Telegraph backed a petition calling for leniency, and the Daily Mail called for his early release, later claiming it “won him justice” after he left prison in 2017. Earlier this year, crowds gathered in support of “Soldier F”, or Dennis Hutchings, who appeared by video link at the Belfast court over the shooting of a young man with learning difficulties in 1974. Hutchings is 78 and in palliative care. Successive Conservative prime ministers and defence ministers have loudly voiced their disapproval of these legal processes.
On Monday, the Conservative party promised to end historic investigations into service personnel, including in Northern Ireland. If elected with a majority, the party promises to amend the Human Rights Act of 1998 – which allows us to defend our rights in court and compels public bodies to treat everyone equally – so that it does not apply to incidents that took place before it came into force in 2000. It also promised to “consider” legislation that would end all investigations, inquests and prosecutions from the Troubles. Six veterans are currently facing criminal prosecution over their actions in Northern Ireland, including over Bloody Sunday in 1972.
Politicians in Northern Ireland and the Republic of Ireland condemned the announcement. The Irish deputy prime minister, Simon Coveney, said in a tweet: “The law must apply to all, without exception, to achieve reconciliation.”
In the announcement, the Conservatives promised to protect armed forces personnel from “vexatious legislation”. Although the pledge has grabbed headlines, it is not actually new – and nor is the language. Boris Johnson made a similar promise in July, during the leadership election. In May, then defence secretary Penny Mordaunt said she wanted to stop veterans being “unfairly pursued” and promised to introduce a “presumption against prosecution” for allegations of crimes in Afghanistan or Iraq, although she exempted Northern Ireland. In her first speech as prime minister in 2016, Theresa May lambasted “activist, leftwing human rights lawyers” who “harangue and harass the bravest of the brave”. This language implies that all allegations against British troops are inherently unfair and even immoral. Taken together, they suggest that it is somehow wrong for civilians to try to unpick complex questions of the rights and wrongs of conflict.
This latest announcement from Johnson – timed for Armistice Day commemorations – is designed to play to the Conservatives’ core vote; but it also conveniently functions to sideline bigger structural questions about the accountability of the Ministry of Defence and the army. The outrage over these cases can be traced back to the spectacular failure of the Iraq Historic Allegations Team (Ihat), an investigative body set up in the last days of Gordon Brown’s government in 2010. With allegations of military misconduct in Iraq coming thick and fast, Ihat was intended to draw a line under the grossly unpopular war. It aimed to investigate credible claims of abuse in Iraq and secure criminal prosecutions where appropriate. But by February 2017, Ihat was the centre of a national scandal. An unexpected volume of cases coupled with poor oversight meant that investigations floundered, and in some cases soldiers were treated inappropriately, with, for instance, Ihat investigators turning up at their place of work with no prior warning. The way that Ihat was structured meant a focus on criminal culpability for individual soldiers, but no remit to examine the chain of command or bigger systemic problems with the military that might have been implicated too. This led to cases where soldiers were investigated for things they were ordered to do. Many felt betrayed by the army.
Yet the focus ended up not on the army, but on the lawyers representing Iraqis. Phil Shiner, one of the human rights lawyers most active in gathering allegations from Iraqis and taking them to Ihat, was struck off as a solicitor over his conduct in a separate public inquiry. Known as the Al-Sweady inquiry, it looked at extreme allegations of wrongdoing in Iraq that were found to be baseless. Although this was not directly related to his work on Ihat, Shiner was found to have a lack of integrity, and his downfall was used to discredit all his cases as “spurious”. After a damning House of Commons report around the same time, the government closed Ihat.
During the seven years that Ihat ran, public opinion in the UK shifted, from anger about the war to anger at those pursuing cases against soldiers. This is politically convenient for the army and the Ministry of Defence, which would rather avoid big questions about accountability. Yet this shift leaves serious questions unanswered: about the scale of abuses, who should be held accountable and how they should be held to account. Critics of the military argue that internal investigations processes are not fit for purpose. (After a trial over the bullying of teenage recruits collapsed last year, the Peace Pledge Union said, “The armed forces should not be allowed to police themselves.”) In the context of battlefield crimes, this is evidenced by dropped charges or light sentencing. Corporal Donald Payne is the only British soldier ever convicted of a war crime; he served one year in 2007 over the killing of Baha Mousa, a hotel receptionist tortured to death by British soldiers. Some of the soldiers involved in Camp Breadbasket – an early case of horrendous abuse of civilians in Iraq – received sentences of only five months. The longest was for a soldier photographed lifting an Iraqi prisoner with the prongs of a forklift truck. He served 18 months.
Questions of moral and legal responsibility are particularly complex when it comes to Northern Ireland. The legacy of the Troubles remains painfully unresolved, and there has never been any reckoning over the role played by the British state in escalating and prolonging the conflict. Civilians in Iraq and Afghanistan are far away and, sadly, easier to elide in conversations about British policy and legal processes – which is perhaps why Northern Ireland was exempted when, earlier this year, Mordaunt imposed a 10-year time limit on allegations against British troops. Everyone involved in the Northern Ireland cases is a British citizen – soldiers, loyalists and republicans alike – with equal recourse to British law. Lawyers have already pointed out that rewriting the Human Rights Act in the way the Conservative party has suggested is not a simple proposition. Such a move would likely put the UK on a collision course with the European convention on human rights, to which it is a signatory, as well as the Good Friday agreement, which promises “human rights for all, not just some”.
Outrage over ageing veterans being hauled before the courts has been used to silence larger questions about accountability. The idea that civilians do not have the right to interrogate what happens in war is gaining prominence, not just in rhetoric but in policy. This is profoundly undemocratic. There has been no true reckoning over the missteps of the British army in Iraq, Afghanistan or Northern Ireland. And it looks increasingly unlikely that it will ever come.
• Samira Shackle is deputy editor of the New Humanist