Addressing civilian harm in UK overseas military operations: The role of international law in shaping accountability and reparations
Introduction:
In December 2024, former human rights solicitor Phil Shiner was sentenced for defrauding a legal aid fund in his pursuit of British war crimes allegations in Iraq.[1] The judge criticised Shiner’s conduct – which included using a fixer to seek his Iraqi clients – suggesting that he had allowed his enthusiasm to blight his judgment, but also demonstrating the complexities of using law to seek redress for civilian harm in UK overseas military operations.[2]Before the end of the same month, The Times brought UK Ministry of Defence (MoD) figures to light showing that nine members of the Special Air Service (SAS) currently face court martial for alleged war crimes in Syria, and another soldier for acts committed in Afghanistan.[3] Administered by the armed forces’ Service Prosecuting Authority (SPA) with no obvious concern for civilian accountability and reparations, the lack of transparency in this process is stark. Aside from his own disgrace, the legacy of Shiner’s litigation is also his involvement in cases related to Al-Saadoon, which will be shown to have led to the raising of the legal threshold necessary to pursue similar allegations in the UK of unlawful killings and practices.
In this essay, the role of international law in shaping such accountability and reparations for civilian harm as a result of UK overseas military operations will be assessed, considering particularly the UK military’s investigations and absence of a formalised civilian harm compensation scheme for victims, as well as the positions of relevant actors, including the UK government and MoD, civil society organisations, human rights bodies, and domestic and regional courts – in cases such as Al-Skeini and Al-Saadoon. While international law will be seen to provide some of the necessary framework in treaties and human rights courts to which the UK is party – specifically the procedural obligations to investigate allegations under Articles 2 and 3 of the European Convention on Human Rights (ECHR) – its effectiveness will be hindered by domestic resistance and systemic gaps in enforcement.[4]
The UK’s record:
The absence of a formalised civilian harm compensation scheme or reparations programme for overseas military operations is a clear demonstration of the UK’s failure to acknowledge its investigatory obligations under International Humanitarian Law (IHL) and International Human Rights Law (IHRL). There is a clear duty within the Geneva Conventions to respect IHL and provide compensation for civilian harm.[5] The UK’s obligation to mitigate civilian harm and provide remedy and reparation for violations of rights is also drawn from a range of international legal frameworks including the ECHR, the 1966 International Covenant on Civil and Political Rights (ICCPR), and the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“UNCAT”). Under IHRL, states have strict investigatory obligations to uphold such fundamental rights, triggered whenever there is a suspected violation even in the absence of a formal complaint, and these are important for providing remedies to victims and preventing future violations.
These investigations must be effective, prompt, independent, and transparent – yet, even while an independent statutory inquiry to investigate and report on allegations of unlawful activity by SAS members in Afghanistan is ongoing, the MoD is defensive.[6] In 2019, MoD officials privately acknowledged that allegations of SAS war crimes revealed by BBC Panorama were “broadly accurate,” but publicly denied claims of unlawful killings of Afghan civilians by SAS soldiers in night raids between 2010 and 2013.[7]
Elsewhere, in January 2014, the Iraq Fatality Investigations (IFI) body was established; as of November 2024, the IFI has concluded just eight cases and seven reports.[8] Historic inquiries into military activity in Iraq include the Baha Mousa Public Inquiry, and £24 million Al-Sweady Public Inquiry.[9] While the UK has also established various other bodies – the Iraq Historic Allegations Team (“IHAT”) which ran from 2010-2107, the Service Police Legacy Investigations (“SPLI”) from 2017-2021, and the 2016 Chilcot ‘Iraq’ Report – domestic investigations have tended to demonstrate a lack of independence, transparency, and trust.[10] In the face of sickening allegations of civilian harm such as the killing of Baha Mousa in Basra, and ‘night raids’ in Afghanistan, this seems feasibly attributable to a combination of liability concerns and political resistance to international accountability mechanisms.[11]
Accountability mechanisms in the UK fall primarily under domestic legal frameworks – including the Human Rights Act 1998 (“HRA”).[12] Under ECHR Articles 2 and 3, the UK must investigate breaches of the right to life and the prohibition of torture or inhuman or degrading treatment, with ECtHR jurisprudence shaping these duties.[13] The application of the international human rights legislation in the context of UK military actions in Iraq has been deeply contested – and extensively litigated! Equally, while the HRA and other human rights treaties such as UNCAT mostly include some form of an individual right to remedy – for example ICCPR Article 2(3), and ECHR Article 13 – IHL has no such cause of action, and this tension between IHL and human rights law can be unhelpful.[14] According to Elizabeth Stubbins Bates, some of the confusion has arisen from misinformation that obligations “are a creature of IHRL alone” – although the ICJ’s ruling on the consequences of the wall in the OPT established that IHL and human rights law can apply concurrently during armed conflicts.[15] For Stubbins Bates, a key failure in the UK’s current approach has been its failure to recognise the breadth of its investigatory duties and the civilian harm to be investigated.[16]
Fortunately, the extent of such obligations has been elaborated upon in ECHR case law. In 2010, the European Court of Human Rights (‘ECtHR’) found that Al-Saadoon and Mufdhi was admissible under Article 13, that there had been violations in Articles 13 and 34, and that the UK had been in breach of Articles 2 and 3 by transferring two Iraqis to Iraqi custody where they faced a threat of execution; finding that the applicants were “at all times within UK jurisdiction for the purposes of Article 2”.[17] The case had been brought due to the intervention of various human rights organisations including Human Rights Watch, Liberty, and Redress, and its ruling that there is a duty to investigate under ECtHR jurisprudence bolstered legal activism. In 2011’s Al-Skeini v United Kingdom, the ECtHR found a procedural duty to investigate a use of lethal force, including extraterritorial applications, and established two key exceptions to the territorial principle: “public powers” and “state agent authority and control”.[18] Al-Skeini thusestablished jurisdiction for relatives of Iraqis killed during the occupation of Iraq by finding that Article 1 applied where, by consequence of military action, a state exercises “effective control” of an area beyond its territory.[19]
The Court of Appeal’s decision in Al-Saadoon and Others v. Secretary of State for Defence (2016), however, overturned an earlier High Court ruling that the UK’s obligations under the ECHR could be triggered extraterritorially through the use of physical force by “state agents” alone, establishing new limiting criteria for prosecutions in the UK: “reasonableness, cost-effectiveness, and proportionality.”[20] The case, involving nearly 1,300 public law claims stemming from UK military actions in Iraq, revisited the debate on the ECHR’s extraterritorial applicability under Article 1, drawing on cases such as Banković v Belgium.[21] While the High Court previously found that the use of force constituted “physical power and control” sufficient to engage the ECHR, the Court of Appeal adopted a more conservative interpretation, which was upheld by the UK Supreme Court the following year. The criteria set by the judgement has led to the closure of hundreds of investigations into civilian harm allegations, undermining the investigatory obligations required under international law.[22] This criteria is incompatible with the non-derogable and absolute nature of Articles 2 and 3.
Where accountably has been sought within the UK, the focus on criminal investigations under domestic criminal law– opposed to war crimes under the Rome Statute – has also detracted focus from state responsibility for violations of IHL and IRHL.[23] The UK’s only war crimes conviction to date arose from the prosecution of Corporal Donald Payne in 2007 under the International Criminal Court Act 2001, for his inhuman treatment of detainees in Basra in 2003.[24]Payne admitted to abusing Iraqi civilians, including Baha Mousa, a hotel receptionist who died in British custody with 93 injuries on his body.[25] The conviction demonstrates some accountability under international law, but it highlights other failings. The “Camp Breadbasket” crimes, for example, only came to light after an employee developing a soldier’s photographs in a chemist alerted authorities, suggesting a major lack of military investigatory obligations and structural issues such as discrimination and racism.[26]
Other regressions include the UK’s Overseas Operations Act (2021), with its presumption against criminal prosecutions five years after the event and restrictions on pursuing civilian claims against military personnel after six years, although lobbying did manage to result in no time restrictions for the investigation of potential war crimes, crimes against humanity, and genocide.[27] The Act “risks leaving the UK in violation of its international legal obligations under human rights treaties,” Lattimer and Burke warn.[28] In contrast, the MoD’s 2023 Armed Forces Compensation Scheme Statement of Policy considers its arrangements to be “consistent with the Government’s commitment to human rights”.[29]
The role of international law:
Despite later rulings, the ECtHR cases of Al-Skeini and Al-Saadoon can be taken as positive international contributions in shaping accountability through extending jurisdiction extraterritorially. In contrast, the role of the International Criminal Court (ICC) in overseeing the UK’s compliance with civilian protection has been disappointing. In December 2020, the ICC’s Office of the Prosecutor (OPT) announced the closure of its preliminary investigation into alleged war crimes by British forces in Iraq, despite finding evidence, shutting off another litigation route.[30] Iraq is not itself a member of the ICC – pressured by the US not to join – and according to former Prosecutor Fatou Bensouda, the ICC could not conclude that UK authorities had been unwilling to carry out investigations and prosecutions.[31] It was therefore found necessary to stop the ICC’s proceedings due to the principle of complementarity, despite significant opposition among human rights groups.[32]
Commenting on the (then, proposed) Overseas Operations Act, the OPT suggested “that the impact of the SDT [Solicitors Disciplinary Tribunal]’s findings against Phil Shiner in justifying the need to introduce legislation aimed at curbing the phenomena of vexatious litigation has been considerably exaggerated.”[33] Shiner’s professional misconduct cast doubt on legitimate grievances of human rights abuses by UK forces in Iraq, and beyond. Coupled with subsequent rulings such as Al-Saadoon, which narrowed the scope of the ECHR's applicability in military operations, the narrative of overreach in legal challenges against the MoD was inevitable, leading to calls for protecting troops against ‘unfounded’ legal attacks. Having previously acted on behalf of Afghan families seeking justice for alleged extrajudicial killings in Afghanistan, Richard Hermer KC’s new position as the UK’s Attorney General may perhaps see this political narrative shift – at the very least, he understands the context.[34]
Another framework which could have been used to better effect in pressing the UK to comply with human rights norms is the International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts, which sets out how internationally wrongful acts entail international responsibility and include investigatory obligations.[35] In his 2015 Al-Saadoon judgement, Justice Leggatt referred to Article 16 of the Draft Articles when considering the principle for ‘which responsibility may be based,’ but did not explore other, more relevant, articles such as Articles 30-31 or 34-37.[36] Another judge might well have chosen to cite from Article 15 of the more recent 2005 United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation, which set out how, “adequate, effective and prompt reparation is intended to promote justice by redressing gross violations of international human rights law.”[37] Or even cite Article 18, which warns that a lack of remedy violates reparation norms for “restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition”.[38]
Civilian harm reparations and redress:
The MoD has historically made payments to civilians harmed by UK military operations overseas, although these payments are ex gratia – not an acknowledgment of legal liability – and processed on a case-by-case, often without clear guidelines or consistency. While some compensation mechanisms exist, including ad hoc compensation payments in Afghanistan, they have come under criticism for their lack of transparency and the scant details that have emerged, including compensation for the death of a three-year-old child.[39] Between 2003 and 2017, the UK paid over £20 million to claimants in Iraq alone, with the UK previously establishing “Area Claims Offices” in Basra and Lashkar Gah (in Afghanistan), although necessary Treasury approval was only granted in 2010; one year after the UK’s office was closed in Iraq, whereupon civil litigation became the only option available to civilians seeking redress for damages inflicted upon them or their families, in English and with the burden of proof, making it difficult for affected civilians to navigate these processes, not least in conflict zones, and likely for claims to be rejected on technical grounds, or lack of evidence.[40]
In the UK, civil society, academics and advocacy groups have led the way in pushing for a more coherent approach to reparations in conflict, for example Roseanne Burke and Mark Lattimer’s 2021 Ceasefire Centre for Civilian Rightspublication on the need for a UK policy on reparations for civilian harm from military operations.[41] At the launch event for another recent Ceasefire report in November 2024 on strengthening military investigations into civilian harm, speakers echoed the need for a compensation scheme harm in order to comply with international law, and provided insights into potential mechanisms by highlighting best practices from other countries including the Dutch military, which operates a civilian harm compensation programme – and in 2017 was responsible for the deaths of hundreds of Iraqis in Hawija. In Mosul, Bassim Razzo lost his beloved wife, brother, nephew and one of his daughters in a coalition strike attributed to the Dutch military.[42] After seeking redress against the Netherlands, its government awarded Bassim around €1 million in 2020 – the first case of compensation for coalition airstrikes.[43] There should be many more.
Conclusion:
Addressing civilian harm and ensuring justice for communities affected by UK military operations through international law is not only a legal imperative, but essential for rebuilding trust. There has only been one prosecution of a soldier for war crimes overseas since 2001, and still not a single prosecution of any kind because of IHAT, SPLI, or SPA investigations.[44] Though the ECHR has extended jurisdiction extraterritorially and established investigatory obligations, not enough has been done on establishing reparations for victims of unlawful harm. Equally, the effectiveness of any potential mechanisms for providing such reparations has been consistently undermined by domestic resistance and the political prioritisation of state sovereignty and military action over global norms for human rights and civilian protection. Under IHRL, investigations should be re-opened, and victims provided with remedy and reparations in line with international norms.
As Justice Leggatt notably put it, “One of the legacies of the Iraq war is litigation.”[45] But there have been no winners in the fog of war, and legal warfare has not brought healing or peace. Cases such as Al-Skeini and Al-Saadoon highlight some progress in holding states accountable, but compared with the UN’s right to remedy and reparation principles and other international best practices, the UK’s ad hoc reparations and limited investigations fall far short. Failures in mechanisms such as IHAT expose the gaps in enforcement and transparency. Ultimately, international law provides a foundation for addressing civilian harm, but its impact depends on the willingness of states to implement and internalise these principles. Until the UK complies, the best use of human rights law remains in engaging with civilian victims abroad and seeking to prevent war in the first terrible place.
(Word Count: 3,220)
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[1] Jonathan Ames, ‘Why judge ruled that Phil Shiner should not be jailed for Iraq war fraud’ The Times (12 December 2024).
[2] R v Philip Shiner (2024) Sentencing remarks.
[3] Larisa Brown, ‘Nine special forces troops could face war crimes prosecution’ The Times (31 December 2024).
[4] Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), Arts 2 and 3.
[5] Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva Convention IV) (12 August 1949) 75 UNTS 287.
[6] UK Ministry of Defence, ‘MoD launches independent inquiry to investigate allegations of wrongdoing by British Armed Forces in Afghanistan’ (15 December 2022).
[7] Joel Gunter and Hannah O’Grady, ‘BBC report on unlawful SAS killings 'broadly accurate', MoD concluded’ BBC News (23 September 2024).
[8] Elizabeth Stubbins Bates, ‘Strengthening UK military investigations into civilian harm: Towards compliance, mitigation and accountability’ Ceasefire Centre for Civilian Rights (November 2024) 28.
[9] UK House of Commons, Report of the Baha Mousa Inquiry (2011) HC 1452.
[10] UK House of Commons, Report of the Iraq Inquiry (2016) HC 265.
[11] Lynzy Billing, ‘The Night Raids’ ProPublica (15 December 2022) <https://www.propublica.org/article/afghanistan-night-raids-zero-units-lynzy-billing> accessed 3 January 2025.
[12] International Criminal Court Act (2001); Human Rights Act (1998).
[13] ECHR, Arts 2 and 3.
[14] International Covenant on Civil and Political Rights (1966), Art 2(3); ECHR, Art 13.
[15] Stubbins Bates, Ceasefire 38.
[16] ibid 38-42.
[17] Al-Saadoon and Mufdhi v United Kingdom (Application no. 61498/08) ECtHR (2010).
[18] Al-Skeini v United Kingdom (Application no. 55721/07) ECtHR (2011).
[19] ibid [138].
[20] Al-Saadoon and Others v Secretary of State for Defence EWCA Civ 811 (2016).
[21] David Goddard, ‘The UK’s Al-Saadoon Case’ Just Security (30 September 2016).
[22] David Hart, ‘War remains inside the court room’ UK Human Rights Blog (11 September 2016).
[23] Rome Statute of the International Criminal Court UNTS 2187.
[24] BBC News, ‘UK soldier jailed over Iraq abuse’ (30 April 2007); R v Payne DEP 2007/411 (April 2007).
[25] UK House of Commons, Report of the Baha Mousa Inquiry.
[26] Audrey Gillan, ‘Five soldiers took 22 pictures’ The Guardian (19 January 2005).
[27] The Overseas Operations (Service Personnel and Veterans) Act (2021), ss 8-10.
[28] Roseanne Burke and Mark Lattimer, ‘Reparations for civilian harm from military operations: Towards a UK policy’ Ceasefire Centre for Civilian Rights (December 2021) 61.
[29] UK Ministry of Defence, Armed Forces Compensation Scheme Statement of Policy (September 2023) JSP 765 (V10.0) 2.
[30] International Criminal Court (ICC), ‘Situation in Iraq/UK - Final Report’ (2020) 4-5, 7-9, 36, 180-84.
[31] Philippe Sands, Lawless World (Allen Lane 2005).
[32] Human Rights Watch, ‘ICC Prosecutor Ends Scrutiny of Iraq Abuses’ (10 December 2020).
[33] ICC 173.
[34] Doug Faulkner and Hannah O'Grady, ‘Afghanistan inquiry hears senior officers hid SAS killings’ BBC News (11 October 2023).
[35] International Law Commission (ILC) Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001), Arts 1, 30-31, 34-37.
[36] ibid 16; Al-Saadoon and Others v Secretary of State for Defence EWHC 715 (2015) [192].
[37] UN General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (16 December 2005) A/RES/60/147 Principle 15.
[38] ibid Principle 18.
[39] Murray Jones, ‘Blood Money: UK Compensation Payments for Afghan Civilian Harm Examined’ Action on Armed Violence (23 September 2021).
[40] The New Arab ‘UK paid over $28 million in Iraq compensation, newly released documents reveal’ (13 June 2017); Burke and Lattimer, Ceasefire 29.
[41] ibid 4-5.
[42] Author’s interview with Bassim Razzo, 30 December 2024.
[43] Jane Arraf, ‘A Path of Forgiveness After Unimaginable Loss in Iraq’ New York Times (12 June 2021).
[44] ICC 176-180.
[45] Al-Saadoon and Others v Secretary of State for Defence (2015) [1].
