The Overseas Operations Bill has been passed by the Commons and will now be examined in the Lords. The Bill seeks to protect troops from vexatious legal claims by creating a ‘triple lock’ that would make it very difficult for any claims to be pursued after five years. But General Sir Nick Parker, former Land Forces Commander in the UK, who also commanded British troops on foreign operations, argues that the Bill addresses the wrong end of the problem. The military chain of command should be under scrutiny, not the law.

The Overseas Operations Bill is an attempt to address the pernicious impact of malicious claims against serving members of the Armed Forces and veterans. This is an issue that needs to be confronted, but the Bill does not solve the root cause of the problem and it generates some significant unintended consequences. The logic of the bill is further undermined because for some reason rape and sexual offences are specifically excluded while murder, war crimes and torture are not.  

Even more worrying for an operational commander is that it perpetuates the illusion that it is always the troops on the front line who should be held accountable and not those who give the orders. Those of us who have been in military high command owe it to those we command to take direct responsibility for their legitimate actions in combat. This Bill assumes that we do not. I am not convinced that the Military Chiefs, collectively, have given enough thought to the wider implications of this Bill if it is enacted into law.

We all know that the UK Armed Forces must answer to the highest possible standards on operations, despite all the pressures. There is a body of eminent opinion which considers that the Bill puts the UK in conflict with many of the tenets of international law and the Geneva Convention. If this is true, we risk sending confused and contradictory signals to the wider international community, and not just our adversaries. It will have an impact on our ability to build coalition relationships with military partners who will be key to providing legitimacy and the necessary additional capability to achieve our objectives, crucial when our own defence policy recognises that we are unable to operate alone. It has implications for the level of support that we might expect from international organisations who are critical in the multi-agency environment in which we work. It would also be a victory for our opponents if our legitimacy were to be undermined. Our adversaries will use this to justify the threat of reprisal – bad for morale even if the likelihood is low.  

Internally, the integrity of our fighting capability depends on how we deal with illegal acts carried out by our people. No highly-trained, professional serviceman or woman would want a genuine crime to go unpunished, but they do not want to be caught up in a firestorm of spurious claims, or to feel that their superiors are unaccountable and it is they who will be hung out to dry. Assertions that an individual has acted outside the law must always be dealt with fairly and as quickly as possible. But the Bill’s ‘presumptions against prosecution’ and introduction of a five year ‘triple lock’ on any allegations spectacularly miss the point. It is chain of command accountability and the process of investigation that must be transformed.   

Clearly action must be taken to address the threat of malicious claims. Not to do so will undermine the motivation of our troops. The solution is to accept that the current mechanisms for prosecution are fit for purpose. We must turn our attention to the effective and rapid investigation of any allegation, and there is a lot that can be done. We need to transform our inadequate operational record keeping, which has not kept up with the massive increase in data available on the battlefield or the speed of events, so that the truth cannot be hidden. Our current investigative capability has been shown to be ineffective in the campaigns in Iraq and Afghanistan; we have to build a credible, independent, operational capability which can examine any allegations as rapidly as possible, and is respected by both individuals and the institution. This is core military capability, as important as a weapon system, and should be resourced accordingly. 

We have not been looking after our people properly when they are the subject of an investigation. We must ensure that those who are answering to allegations are properly supported and, if they are innocent, suffer no disadvantage. Our track record in this area is not good and the military establishment has to demonstrate that it can be resolved. Finally, we need to ensure that the commanders who give the orders at every level in the chain of command can be held properly accountable for their instructions and their behaviour. It is entirely possible in some cases that the hierarchy are culpable and the troops on the front line should be exonerated; but our current systems seem to be incapable of recognising this.   

This Bill follows from a manifesto pledge and is being rushed through Parliament without sufficient consideration. It will be trumpeted as political support for ‘our boys and girls’ and yet it leaves them just a vulnerable as before.

General Sir Nick Parker KCB CBE was Commander, Land Forces from 2010-12. He had previously served as Commander of British Forces Afghanistan, and Deputy Commander, International Security Assistance Force in Afghanistan.