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The ICC Prosecutor Office’s Cop-Out on UK Military Crimes in Iraq

UK nationals committed abuses in Iraq after 2003 on a significant scale. The International Criminal Court’s Office of the Prosecutor (OTP) Final Report on the UK and Iraq on December 9 is the latest official report to find that members of UK armed forces subjected Iraqi detainees to abuse, and concludes there is a reasonable basis to believe these were war crimes. But the prosecutor’s decision to close her examination of the UK without proceeding to an investigation on the basis that the UK is willing to genuinely investigate and prosecute these war crimes defies belief.

The Prosecutor Office’s report amounts to one of the clearest findings by any official body of the extent of UK abuses in Iraq.

The key paragraph in the report is §113. Here the Office concludes in clear terms that, given all the information available, there is a ‘reasonable basis to believe’ that members of the UK armed forces in Iraq committed the war crimes of wilful killing/murder (in at least 7 cases);  torture and inhuman/cruel treatment and outrages upon personal dignity (at least 54 cases); and sexual violence, including rape (at least 7 cases).

The Office makes clear (§114) these are a ‘sample pool’ that does not reflect the full scale of the alleged crimes. It notes (§129)

that the UK High Court in civil claims on the evidence before it – applying a standard of proof which appears relevant to the reasonable basis standard applied by the Office at the preliminary examination stage – has made findings in relation to hundreds of Iraqi detainees that “conditions in which they were held and certain practices to which they were subjected amounted to inhuman or degrading treatment.

The OTP then goes on  (§148) to make clear findings, again, to a reasonable basis standard, that the crimes were sufficiently grave to warrant further action before the ICC. This is based on the scale, nature, manner of commission, and impact of the crimes committed on victims.  The report states that the manner in which these crimes are alleged to have been committed appears to have been “particularly cruel, prolonged, and severe”.

The Office found  (§144) an aggravating factor was that the underlying conduct leading to the crimes arose from ‘institutional factors’, including training programmes that encouraged prolonging the “shock of capture” without sufficient regard for humane treatment of detainees.  In terms of impact (§145)  the alleged crimes appeared to have had “severe short-term and long-term impact on the physical and mental health of detainees.” Furthermore, “[v]ictims’ families were also deeply traumatised from witnessing the abuses and left in a state of despair, fearing for the fate of detainees.”

With crimes on this scale, which continued for years, many UK nationals – not just a ‘few bad apples’ – will have been responsible, not just for committing war crimes but also for ordering and assisting them, looking the other way, and failing to prevent, stop or prosecute them. The Office states that it is wrong to dismiss allegations of such crimes as ‘vexatious’ (frivolous) – a word that has been repeatedly used by UK government ministers who continue to deny crimes occurred.

The UK has a lamentable record of failing to prosecute war crimes committed by its nationals overseas. There has just been one prosecution of UK forces for war crimes in Iraq and Afghanistan in the last 20 years. The UK government has blatantly interfered in the military justice system to prevent investigations and prosecutions, including shutting down the main criminal investigation into war crimes in Iraq. But throughout its report, the Office of the Prosecutor ignores the bigger picture of UK failings on prosecutions related to abuses in Iraq and bends over backwards to give the UK government the benefit of the doubt.

Human Rights Watch looked at these failings in detail for our 2018 report examining whether the OTP’s preliminary examinations can serve to catalyze pressure for genuine national proceedings, including in the UK. We spoke with lawyers, nongovernmental organizations, government officials, members of parliament, journalists, and others who have been following these issues very closely for many years, as well as OTP staff. We also studied a range of documents, including relevant domestic judicial decisions, inquiry reports, government statements and reports, and British press articles.

The Office in 2014 reopened a preliminary examination into war crimes allegedly committed by UK nationals in Iraq that it had  closed in 2006. At the ICC, preliminary examinations are conducted by the OTP to determine whether formal ICC investigations are warranted under the court’s treaty, the Rome Statute.

The prosecutor’s office decided to not to seek to proceed to an investigation on the basis that there is insufficient evidence that the UK is unwilling genuinely to investigate and prosecute the allegations, given that the ICC is a court only of last resort.  Article 17 of the Rome Statute provides that if the Court were to look at these cases, it would need to consider: if the investigations, or decisions not to prosecute are taken for the purposes of ‘shielding’ the person concerned from criminal responsibility; if there has been an unjustified delay in the proceedings; or if the investigations or prosecutions are not being conducted independently or impartially and in a manner inconsistent with an intent to bring the person concerned to justice. On almost any reading of the evidence the answer to the final question at least should be yes.

The UK does not have a  record of genuine willingness to investigate and prosecute war crimes independently. Despite the evidence of war crimes that emerged from 2003 onwards, including from official inquiries, and rulings of courts in civil claims, the UK’s record of prosecution of war crimes has been derisory. On the same day as the prosecutor office’s report came out, the Ceasefire Centre for Civilian Rights published a report showing that since 2001, there had been precisely one prosecution of UK armed forces personnel for war crimes overseas, under the UK’s own ICC-implementing Act. This prosecution, in 2007, concerning the death of Baha Mousa after being beaten by UK forces in custody, resulted in the conviction of one corporal who had pled guilty to one war crime. The OPT Report summarises this in §213

The court convicted Corporal Donald Payne of inhuman treatment but acquitted him of manslaughter and perverting the course of justice. He was sentenced to one year’s imprisonment. Payne appears to have been the first British soldier ever to be convicted in the UK of a war crime. In the case of five other defendants, the Judge Advocate ruled that there was no case to answer due to lack of evidence, while two further accused were cleared by the jury of negligently performing the duty of ensuring that detainees were not ill-treated by men under their command. Justice MacKinnon, who presided over the court martial, acknowledged that despite his finding that Baha Mousa’s injuries were the result of numerous assaults over 36 hours “none of those soldiers have been charged with any offence simply because there is no evidence against them as a result of a more or less obvious closing of ranks”.

In 2010, after court rulings against it in cases brought by victims of the abuses and their families, the UK government created a special Iraq Historic Allegations Team (IHAT) to conduct criminal investigations regarding the allegations in Iraq. But, as the OTP report points out, this resulted in no prosecutions and was shut down prematurely by the UK government in 2017. In 2019, the BBC Panorama programme and the Sunday Times newspaper published detailed allegations, including from former IHAT investigators, that UK political and military authorities had attempted to cover up crimes in Iraq and prevent investigations and prosecutions.

The OTP report examines some of the individual cases and decisions not to prosecute, setting out difficulties in obtaining evidence years after the crimes took place.  But three issues are striking in its approach to the UK’s record. First, that the Office seems to be setting itself a standard that is almost impossible to prove, especially in a preliminary examination when the office lacks full investigating powers – that in each individual case it would have to prove there was an active attempt to shield the perpetrators.

Second, the report gives the impression that the Office often bends over backwards to give the UK the benefit of the doubt, even when the evidence is against it. On the detailed BBC/Sunday Times claims, it said it could not ‘substantiate the allegations to the required level of proof’. It praises the government for setting up IHAT – but it ignores that the government was forced to do so by the courts due to cases brought by victims.

The Office says it could find ‘no affirmative plan’ of UK commanders to commit abuses. But it then describes the notorious ‘techniques’ of deliberate sensory deprivation of detainees (e.g. through hooding) that were used by UK forces in Iraq. These are practices of serious abuse, which often amount to torture, that the UK officially promised in the 1970s had been abolished. The Office’s report uses very mild language  (§143) about their use in Iraq, saying that they ‘re-entered practice’ through ‘gradual attrition of institutional memory and lack of clear guidance’.  This gives the impression that such atrocities were accidental – whereas their use requires authorisation and orders.

But most important is that the Office apparently fails to see the forest for the trees. It justifies individual decisions not to prosecute, while not examining the overall political context and clear statements and actions of UK governments to prevent investigations and prosecutions of UK forces.  Although the Office acknowledges in the report  (§487) that it should consider the ‘totality of the relevant  factors in their context’ and not just individual cases, its conclusion completely fails to come to grips with the role of the UK government.     

The overall context is one in which historically the UK has a poor to nonexistent record of prosecuting members of its armed forces and military and civilian commanders for atrocities committed overseas. This was apparent in Iraq, where although the media and litigation uncovered abuses, hardly any attempt to investigate and prosecute occurred until the UK courts forced the government to set up IHAT. And along with IHAT’s failure to prosecute anyone, there has been no sign of any criminal investigation – by civilian police and prosecutors –  of government ministers who could bear command or superior responsibility for the armed forces.

What’s worse is the government’s repeated dismissal of claims of abuse in Iraq using rhetoric like ‘vexatious’ and its ever-stronger measures to prevent accountability for such abuses. The OTP report acknowledges  (§461) some of this, briefly, including the rhetoric of UK prime ministers and defence ministers saying the claims were ‘spurious’ and that they would ‘stamp out’ the litigation and no longer permit ‘left wing activist human rights lawyers’ to ‘harass’ the armed forces. 

The defence secretary’s decision to close down IHAT in 2017 followed a campaign by members of parliament and segments of the UK media attacking IHAT. And in 2019 the current government introduced its Overseas Operations Bill, with the explicit aim of making it extremely difficult to prosecute members of the UK forces for war crimes, torture and other crimes committed overseas, including through a ‘presumption against prosecution’ of such crimes and requiring the consent of the attorney general, a politician and member of the government, to prosecute.

The OTP report expresses deep concern about the new bill and notes (§479) it could reconsider the decision based on new facts or evidence.  It states that:

The effect of applying a statute of limitations to block further investigations and prosecution of crimes alleged committed by British service members in Iraq would be to render such cases admissible before the ICC as a result of State inaction or alternatively State unwillingness or inability to proceed genuinely under articles 17(1)(a)-(c).

But in its decision, the OTP appears to ignore many of the key issues highly relevant to assessing whether the UK is willing to genuinely have independent investigations and prosecutions. For example, in §497, the Office concludes « that the UK authorities had not remained inactive in relation to broader allegations of systemic abuse or of military command or civilian superior responsibility. » But it does not address the apparent lack of any criminal investigation of UK ministers, civilians who had command or superior authority over the armed forces, by UK civilian police and prosecutors. It does not explore the role of the attorney general and its impact on independence of prosecutorial decisions.

Most extraordinarily, the OTP does not treat the government’s decision to shut down IHAT, direct political interference in the justice system with the aim of ‘protecting’ the armed forces, as amounting to interference with the independence of the investigation. Even though, as it acknowledges in §435, ‘political interference in the investigation’ is a key factor in assessing the independence of an investigation.

The OTP report’s publication serves to confirm that UK forces committed multiple war crimes in Iraq, with a potential criminal liability of many, including senior military commanders and UK ministers.  This is a major failing of the UK state, compounded by the lack of domestic prosecutions.  On this, the OTP report has some very clear words in §6:

The lengthy domestic process, spanning more than 10 years and involving the examination of thousands of allegations, has resulted in not one single case being submitted for prosecution: a result that has deprived victims of justice.

Despite these powerful words, the OTP has chosen to gloss over the broader picture of the UK’s institutional failure on accountability for war crimes, and to give the UK government the benefit of the doubt, despite all the evidence that it is actively obstructing justice.

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