Will SL emulate UK’s Overseas Operations Bill? (Service Personnel and Veterans)

• The UK government enacted new legislation to protect military personnel and veterans from prosecution for alleged historical offences in conflicts overseas, according to a BBC report
• Sri Lanka is under scrutiny by the UNHRC over the alleged human rights issues and accountability issues during the war time. The war on terrorism is a legitimate duty by any government, be it Sri Lanka or the United Kingdom
• Sri Lanka currently faces another resolution against it by a core group of countries. Ironically, the group is led by the United Kingdom

As a democracy built on British parliamentary model, it is nothing new that Sri Lanka emulates legislative work of the House of Commons of the United Kingdom in evolving legislation here.  During the time of the former government, fresh initiatives were taken in working out the Counter Terrorism Bill to be enacted repealing the Prevention of Terrorism Act, a proposal envisaged even in the 30/1 resolution adopted by the United Nations Human Rights Council (UNHRC) in 2015 with co-sponsorship of Sri Lanka under the then government.  Also, then Prime Minister Ranil Wickremesinghe sought to reform the police service by deriving best practices of the British system. In fact, he spoke of the need to establish a mechanism in similar line with the Serious Frauds Bureau of the United Kingdom. 

Now there is another law enacted in the United Kingdom. If the new government, which has been elected with a fresh mandate, is interested in it, attention can be made to it. That is because this British law offers insights that gel with the thinking of the new government in Sri Lanka. 

The UK government enacted new legislation to protect military personnel and veterans from prosecution for alleged historical offences in conflicts overseas, according to a BBC report.
The law titled ‘The Overseas Operation (Service Personnel and Veterans)’ which was on September 2020 by the House of Commons. As per the Ministry of Defence of the UK, the Bill purports to raise bar against prosecutions of Service personnel and veterans in relations to historical events occurred during overseas military operations and to confer a duty on the secretary of state to consider derogating from the European Convention on Human Rights (ECHR) ahead of military operations abroad.

 The Bill was enacted in the context of ratification of the European Convention on Human Rights (ECHR). The UK enacted legislations to giving effect to its provisions.  ECHR has provision to exclude combat immunity of the personnel of the armed forces. As a result, using the extraterritorial application of the European Convention on Human Rights, foreign nationals filed numerous cases against British armed personnel in the UK courts. In order to address these prosecutions, several investigative committees or teams were appointed from time to time to probe into these prosecutions on alleged war crimes. 

Pursuant to going through findings of several inquiry or investigation Committees, which proved that most of the allegations were baseless, the Government of UK decided that a line should be drawn to end vexatious and baseless claims against the personnel of its armed forces.  As a result, the Ministry of Defence of the UK, brought the law to protect their armed forces from ‘baseless and vexatious claims’ through creating a high threshold, for prosecution to be proceeded in the domestic legal setting. 

According to a BBC report, “It also proposes a five-year limit on criminal prosecutions from the date of an incident - unless there is compelling new evidence - and a six-year limit for any civil case involving personal injury or death.
It provides for future governments of the United Kingdom to consider a derogation - effectively opting out - from the European Convention on Human Rights in any conflict overseas.

"Already, 18 countries pledged their support. Some of them are members of the UNHRC. If Sri Lanka defeats this resolution, it will be a major diplomatic victory for the government"

The UK Government by proposing the Bill has stated that, the Bill’s provisions are consistent with the UK’s obligations under domestic and international law and that “the measures in the Bill are a proportionate solution to the problem, and strike an appropriate balance between victims’ rights and access to justice on the one hand, and fairness to those who defend their country on the other”.

The Overseas Operations (Service Personnel and Veterans) Bill includes a series of proposals that would limit criminal and civil claims relating to the conduct of UK service personnel operating overseas. According to the British parliamentary website, the Bill proposes a ‘presumption against prosecution’ of service personnel accused of committing a crime overseas if more than five years have passed since the alleged offence took place. 

It imposes a time limit on civil claims for personal injury and death, and on human rights claims under the Human Rights Act 1988 (HRA), where the conduct in question took place in the context of overseas operations by the UK armed forces. The Bill includes a further requirement that the Secretary of State consider derogating from the European Convention on Human Rights (ECHR) in relation to future overseas operations.
The Bill has also come under criticism by the human rights groups which said that the legislation would place the military above the law and undermine existing international convention.

 No matter what, the Bill offers food for thought for  the present government of Sri Lanka given its political scrutiny.  Sri Lanka is under scrutiny by the UNHRC over the alleged human rights issues and accountability issues during the war time. The war on terrorism is a legitimate duty by any government, be it Sri Lanka or the United Kingdom. The issues highlighted in the UNHRC resolutions emanated from the Sri Lankan government’s response to the LTTE which fought a war for a separate state.  The only difference is that Sri Lanka’s war was confined to its territorial limits. 

Now the question arises whether the Sri Lankan government will look to this piece of legislation for insights to be adopted in the local context.
Sri Lanka currently faces another resolution against it by a core group of countries. Ironically, the group is led by the United Kingdom. The group has already circulated a zero draft of the resolution, but Sri Lankan Foreign Minister Dinesh Gunawardane rejected it. He also requested the UNHRC to thwart any attempt to pass it. Sri Lanka has been constantly under scrutiny by the UNHRC after the war was over. The proposed resolution calls for the repeal of the PTA.

An intense lobbying spree is currently underway to garner the support of the member states to counter this resolution. Already, 18 countries have pledged their support.  Some of them are members of the UNHRC. If Sri Lanka defeats this resolution, it will be a major diplomatic victory for the government.