Iraq redux: British commanders before the ICC?

Evidence has been compiled suggesting agents of the UK state committed war crimes in Iraq, punishable before the International Criminal Court. Institutional amnesia about Britain’s early intervention in Northern Ireland may prove to have been costly.

Luke Moffett
20 January 2014

On January 10 Public Interest Lawyers (PIL) and the European Centre for Constitutional and Human Rights (ECCHR) submitted a 250-page dossier to the Office of the Prosecutor (OTP) at the International Criminal Court (ICC) on alleged war crimes committed by British armed forces in Iraq from 2003 to 2008. The allegations include torture, ill-treatment and killing of Iraqi detainees while in the custody of British armed forces.

The dossier is based on 85 representative cases of more than 400 former Iraqi detainees represented by PIL, which by themselves involve more than 2,000 separate allegations of torture and ill-treatment in UK custody. Due to their systematic nature, the dossier points beyond the responsibility of low-level soldiers to claim that effective authority and control rested with senior commanders and civilian members of the UK Cabinet, such as Geoffrey Hoon (secretary of state for defence) and Adam Ingram (former minister of state for the service personnel)—a claim which has been denied by the current foreign minister, William Hague.

Iraq revisited

This is not the first time allegations of torture, ill-treatment and killing of Iraqis by British armed forces have been brought before the ICC. In its early years the prosecutor began a preliminary examination into the situation in Iraq, having received more than 400 communications from different individuals and organisations regarding the legality of the war and abuses by British forces. The OTP can only open an investigation into international crimes under article 15 of the Rome Statute establishing the ICC if, first, there is a reasonable basis to believe such crimes have been committed within the jurisdiction of the court and, secondly, the state is unable or unwilling to investigate or prosecute such crimes (complementarity), the crimes are grave enough (gravity) and such investigation would be in the ‘interests of justice’.

The five techniques had been banned in 1972 after it was revealed that British forces used them on suspected IRA members in Northern Ireland.

Based on the evidence received until 2006, the OTP found on the first issue of jurisdiction that while Iraq was not a state party to the statute the UK was and so crimes committed by British nationals came within the court’s jurisdiction. Many of the 2006 allegations focused on the legality of the conflict, but at the time the crime of aggression had not been included in the jurisdiction of the court. There were also allegations of genocide, crimes against humanity and war crimes of targeting civilians but the OTP found insufficient information to satisfy the legal prerequisites for these crimes. On allegations of wilful killing and inhuman treatment of victims, however, the OTP found there was a ‘reasonable basis to believe that [such] crimes within the jurisdiction of the Court had been committed.’

Despite finding evidence of such abuses, the prosecutor concluded that due to the small number of potential victims (around 20 individuals) it did not satisfy the requirement of ‘gravity’ under article 8(1), which requires war crimes to be ‘committed as part of a plan or policy or as part of a large-scale commission of such crimes’. Accordingly, the OTP did not examine the issue of complementarity or initiate an investigation, yet it did state that this decision could be ‘reconsidered in the light of new facts or evidence’. The dossier presented by PIL and ECCHR could open up this decision by demonstrating the large-scale commission of inhuman treatment of Iraqi detainees.

Moreover, since the 2006 decision the OTP has developed other criteria for determining gravity beyond quantitative factors—extending to means, degree of participation, cruelty (particularly the vulnerability of the victims) and a motive of discrimination—which could mean gravity being decided differently for allegations of abuse of Iraqi detainees. That said, the issue of complementarity, in that domestic courts are the first port of call for accountability, would still prove a hurdle to an investigation being initiated at the ICC.

Accountability before British courts

There have been investigations and prosecutions of British soldiers for the treatment of Iraqi detainees. In the past few years there have been high-profile inquiries into deaths of Iraqi detainees in British army custody. The Gage inquiry examined the death of Baha Mousa, an Iraqi detained by soldiers in Basra who died after 36 hours in custody; he was ‘hooded’ and forced to adopt a stress position and 93 external injuries were discovered on his body. The inquiry found in 2011 that Mousa had been unlawfully killed and suffered inhuman treatment. In 2007 one corporal was convicted for inhuman treatment by a court martial and sentenced to one year but a senior officer was acquitted.

It also found, however, a lack of discipline and ignorance surrounding use of the ‘five techniques’ by senior commanders and corporate responsibility on the part of the Ministry of Defence but such ill-treatment did not indicate systemic violations or a culture of violence. The five techniques involved individuals being spread-eagled against walls for hours, deprived of food, water and sleep, hooded and subjected to continuously loud or monotonous noise.

Bloody Sunday memorial

They haven't forgotten in Derry: the Bloody Sunday memorial. Wikimedia / Zubro. Creative Commons.

The five techniques had been banned in 1972 after it was revealed that British forces used them on suspected IRA members in Northern Ireland. In the Ireland v United Kingdom case before the European Court of Human Rights (ECtHR), the court found such techniques amounted to inhuman and degrading treatment, a violation of article 3 of the European Convention on Human Rights. Worryingly, despite this highly significant case, it would seem such practices continued to be used by British forces.

Another public inquiry (Al-Sweady) continues into the battle of Danny Boy in 2004, where it is alleged British forces executed 20 unarmed Iraqis and ill-treated prisoners. Public inquiries do not however determine civil or criminal responsibility: they just establish the facts and circumstances. There are also inquests into the 150 Iraqi detainees who died in UK custody. And the Ministry of Defence has created the Iraq Historic Allegations Team (IHAT) to review and investigate allegations of deaths and ill-treatment of Iraqis by British forces between 2003 and July 2009. IHAT has been found by the Court of Appeal and High Court to lack independence, questions of delay and inadequate training pointing to more systemic issues of accountability.

Although units investigating allegations of ill-treatment and death in detention of Iraqis in UK custody have been created, they have found to be in violation of the European Convention of Human Rights before the ECtHR in the Al-Skelini, Al-Jedda, and Hassan cases (currently before the Grand Chamber). Importantly, in Al-Skelini the ECtHR found that human-rights obligations binding on the UK applied to centres of detention under its control. It also found the UK had violated the procedural obligations of the right to life for detainees who died in British forces’ detention.

Human-rights obligations and the NI experience

The procedural obligations represent positive duties on the state to investigate cases of death or ill-treatment, by state or private actors. The ECtHR has stipulated that such investigations have to be prompt, transparent, independent from any state agent implicated in the death or ill-treatment and effective—in leading to a determination of whether the force used was justified in the circumstances and to the identification and punishment of those responsible. This examination of the investigation pertains to the ‘means’ or process focus of allegations, rather than prescribing that states have to achieve a particular outcome such as a conviction. In applying this means-focused analysis in Al-Skelini the court found that investigations into deaths of Iraqi detainees by the UK were not effective, due to delays preventing identification of those soldiers responsible, and the investigators lacked independence from military command, with only a handful of low-ranking soldiers prosecuted and sentences ranging from 140 days to two years.

The lack of effective investigations and accountability has been acutely apparent in contentious killings in Northern Ireland by British forces. The ECtHR has found in 14 cases since 2001 that obligations to investigate violations of the right to life have been breached by the UK. Many relate to the use of force by soldiers or collusion with paramilitaries. In the latest series of cases decided in July 2013 the court found that investigations suffered from ‘excessive delays’, with some inquests into contentious deaths retarded by over 20 years. A Historical Enquiries Team (HET), similar to the Iraq Historic Allegations Team, was created in 2005 to investigate more than 2,000 unsolved murders during Northern Ireland’s ‘troubles’; to date this has only resulted in three convictions. Last year Her Majesty’s Inspectorate of Constabulary found that the HET had failed properly to investigate soldiers and lacked sufficient independence, echoing problems with the IHAT.

Human-rights obligations established in jurisprudence surrounding UK violations in Northern Ireland currently guide the inquest and inquiry system in abuses by British forces in Iraq. It is questionable whether the focus on the effectiveness of investigations by the ECtHR can achieve timely outcomes of prosecutions and convictions to satisfy the ICC.

British commanders in the dock?

The appearance of British commanders at the court could perhaps counter perceptions of the ICC as targeting Africans, raised recently with the Kenyan case against the president, Uhuru Kenyetta, and the vice-president, William Ruto, by making the court appear more impartial and less neo-colonial. The UK is however the third biggest contributor to the ICC, providing over €10 million to the court’s fund in 2012 alone and a further €2 million to the court’s Trust Fund for Victims since 2011. In more legal terms, it is unlikely British soldiers or commanders will appear in the Hague on the basis of complementarity, as the ICC is a court of last resort to investigate and prosecute those most responsible where state parties are unable or unwilling to do so. If there is sufficient evidence to warrant an investigation at the ICC on the basis of the dossier submitted by PIL and ECCHR, the British government will probably affirm its willingness to investigate and prosecute such allegations through investigations by the IHAT, public inquiries and courts martial. It is questionable whether such efforts are aimed at ensuring accountability for those ‘most’ responsible for such crimes—allegedly involving commanders and civilian members of the Cabinet named in the dossier—as required by the Rome Statute.

A state’s ability and willingness to investigate and prosecute international crimes are key criteria of admissibility and complementarity. Jurisprudence by human-rights courts into the ‘effectiveness’ of such processes is important to avoid a simulacrum of complementarity, through the conduct of investigations and trials which fail to achieve accountability. The experience in Northern Ireland attests to this: a soldier has yet to be prosecuted nearly 40 years on from the massacres on Bloody Sunday in Derry in 1972 or the contemporary ill-treatment of detainees—despite inquiries finding unlawful killing of unarmed civilians and inhuman treatment of those interned. Perhaps the ICC, established to combat impunity, will prove a more substantive ‘stick’ in achieving accountability for such international crimes allegedly committed by British forces in Iraq.

That said, the ICC by itself is not the best forum to ensure accountability for ill-treatment of Iraqi detainees by British forces, owing to the court’s focus on individual criminal responsibility rather than on the wider structures needed to prevent the recurrence of such crimes. This is the benefit of human-rights oversight of state responsibility, which requires institutional reform and safeguards to tackle a culture where Iraqi detainees were allegedly dehumanised, degraded and abused.

Accordingly, there is a need for any possible future investigation and prosecutions before the ICC to be complemented by the focus on effective investigations and structural accountability through human-rights monitoring at the ECtHR. Perhaps attention from both the ICC and ECtHR on the UK government will ensure greater compliance with international humanitarian and human-rights law, prevent future use of the ‘five techniques’ and provide some form of justice to the victims.

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