Rifkind criticises bill to restrict British soldier torture prosecutions

The former Conservative defence secretary Sir Malcolm Rifkind has said a government bill to restrict torture prosecutions against British soldiers serving abroad risks “undermining the UK’s position as a champion for the rule of law”.

He said the government’s overseas operations bill, due in the Commons on Wednesday, risked creating a two-tier system, in which the military had a favoured position when faced with accusations of war crimes.

Rifkind also joined the former attorney general Dominic Grieve in criticising plans to introduce a “statutory presumption against prosecution” after five years to apply to all military personnel.

Rifkind said: “There is a deeply held belief in the British system that the military have neither privileges or disadvantages in relation to the general population. Many in the military do not want to have such a privileged position.

“Even if such derogations are introduced in a minor way for relatively good reasons it risks undermining the UK’s position as a champion for the rule of law. That makes it harder to rebuke countries like China for breaking the Hong Kong treaty.”

Rifkind, who was defence secretary between 1992 and 1995, is the most senior former Conservative minister to express objections to the bill, intended to fulfil a party election pledge to tackle “vexatious legal claims” involving the armed forces.

Human rights groups have argued the presumption against prosecution amounts to decriminalising torture, Labour has said it could breach the Geneva conventions covering humane behaviour in conflict and the former chief of defence staff Lord Guthrie has said it could let “torturers off the hook”.

The bill is expected to pass its second reading of the Commons on Wednesday, given the Conservative party’s 80-strong majority. Many backbenchers believe soldiers have been unfairly pursued in the courts.

Last week Ben Wallace, the defence secretary, and Johnny Mercer, the veterans minister, wrote to MPs saying the bill was intended to reduce uncertainty. “The measures in the bill will help tackle vexatious claims and the cycle of reinvestigations against our armed forces, to whom we owe a vast debt of gratitude,” they wrote.

Grieve, who was forced out of the party over Brexit, said that while he understood concerns about soldiers being at risk of vexatious prosecution he thought the bill “would make things worse”.

“If it means what they say, this legislation is reputationally damaging to the United Kingdom. It carves out crimes that might have been committed by soldiers on operations overseas and says, completely contrary to normal practices, there will be a presumption against soldiers being prosecuted.”

Grieve, who was the government’s most senior law officer between 2010 and 2014, said he thought the bill increased the prospect of lengthy courtroom battles. “I can’t think of anything more likely to lead to complex legal proceedings [than] this,” he said.

Allegations of torture or war crimes can take years to resolve. Last month, Wallace was ordered by a court to explain why the government withheld evidence suggesting SAS soldiers may have executed 33 civilians in Afghanistan in a series of raids in Helmand province in early 2011 in a case where no prosecutions had been brought.

Kolbassia Haoussou, a torture survivor who works with the campaign group Freedom from Torture, said that setting a deadline on prosecutions created an uncomfortable precedent because it could take several years before victims were prepared to come forward.

“There is so much stigma and shame attached to torture that it can destroy your mental attitude and identity,” said Haoussou, who also acts as a survivor champion for the Foreign Office’s preventing sexual violence in conflict initiative. “Five years is absolutely nothing. It takes time for people even to understand what is going on in their mind.”