10 Dec The Nine Words that (Wrongly) Doomed the Iraq Investigation
As most readers will know by now, the Office of the Prosecutor (OTP) at the ICC has decided for a second time not to investigate war crimes committed in Iraq by British soldiers. There are many posts to write about the OTP’s decision, but in this one I want to focus on nine words in the Final Report that explain why it is closing the Iraq preliminary examination. As I will show, those nine words fundamentally misstate the procedural and substantive requirements for the OTP to ask the Pre-Trial Chamber to authorize an investigation.
At the outset, it’s important to note that this decision not to investigate is very different than the one made by Luis Moreno-Ocampo in 2006. The latter declination, much reviled by both civil society and academics, turned solely on the alleged lack of gravity of the crimes committed by British soldiers in Iraq — “wilful killing, torture, inhuman/cruel treatment, outrages upon personal dignity, and rape and/or other forms of sexual violence.” The new declination, by contrast, specifically acknowledges that those crimes are grave enough to justify a formal investigation:
148. According to the information available, the crimes set out in the report, for which the Office makes findings at the reasonable basis to believe standard, are sufficiently grave to justify further action before the Court, having regard in particular to their scale, nature, manner of commission, and impact.
The new declination is instead based on one — and only one — factor: the OTP’s conclusion that the UK’s failure to submit even “one single case… for prosecution to date” (to quote the OTP’s Press Release) does not indicate it is unwilling to genuinely investigate British war crimes in Iraq. Here is what the Press Release says, summarising why the OTP is not moving forward with the investigation (emphasis mine):
If shielding had been made out, an investigation by my Office would have been warranted. Following a detailed inquiry, and despite the concerns expressed in its report, the Office could not substantiate allegations that the UK investigative and prosecutorial bodies had engaged in shielding, based on a careful scrutiny of the information before it. Having exhausted reasonable lines of enquiry arising from the information available, I therefore determined that the only professionally appropriate decision at this stage is to close the preliminary examination and to inform the senders of communications.
The OTP’s conclusion that the UK is willing to genuinely investigate the crimes mentioned is deeply troubling. Time and again the Final Report notes problems with the UK’s investigation, only for the OTP to conclude that those problems do not amount to shielding. That is particularly apparent in the section of the Final Report entitled “cover-up,” which addresses a number of very serious allegations made by former members of IHAT, the Iraq Historic Allegations Team, that the UK military and government went to great lengths to ensure that British soldiers could not be prosecuted domestically. Here are the relevant paragraphs, which I quote nearly in full:
372. Among the most serious allegations of shielding that the Office has examined have been allegations of cover-up within IHAT/SPLI itself and/or the SPA to intentionally shield members of UK armed forces and members of the MoD from genuine criminal inquiry. The Office has paid particular attention to the findings published in November 2019 by the BBC’s Panorama programme and the Sunday Times (‘BBC/Times’) which alleged efforts to shield the conduct of British troops in Iraq and Afghanistan from criminal accountability. In particular, the reports allege that this has involved the intentional disregarding, falsification, and/or destruction of evidence as well as the impeding or prevention of certain investigative inquiries and the premature termination of cases.
373. The BBC/Times reportedly interviewed a range of individuals, including: ten former Iraq Historic Allegations Team (‘IHAT’) investigators; several Iraqi witnesses, including family members of alleged victims; former British military interrogator Frank Ledwidge;and other unnamed army personnel, including soldiers of the Black Watch Battalion. Only one of the ten IHAT investigators was named publicly, with the rest either assigned pseudonyms or described as former IHAT investigators. The BBC/Times also accessed documentation from both the RMP’s and IHAT’s investigations, including photographic evidence and investigative reports. The BBC/Times concluded that UK authorities had attempted to cover up killings in Iraq, including through the obstruction of investigative steps, political pressure and the premature termination of cases.The principal reported allegations are set out below.
[snip]
375. With respect to alleged failures in investigating command responsibility, former IHAT investigators reported to the BBC/Times that they had found evidence that the Black Watch’s (then) commanding officer, Lieutenant-Colonel Michael Riddell- Webster, had been warned about mistreatment of detainees by the regiment’s chaplain before the deaths of Rhadi Nama and Abdul Jabbar Mossa Ali at Camp Stephen. Reportedly, IHAT investigators had recommended that senior officers and soldiers at Camp Stephen should be prosecuted, but no charges ever eventuated.One former IHAT investigator asserted that the officers running the camp must have known about the abuse given the confined nature of the space.
376. In terms of the alleged political pressure to close IHAT cases, ten former IHAT investigators reportedly told the BBC/Times that credible evidence of war crimes was swept aside for political reasons and that there was pressure from the MoD to close cases as quickly as possible. According to one former IHAT investigator, a senior civil servant was appointed as an IHAT official by the government in order to exert pressure on investigators to ensure that they did not look further up the chain of command beyond low-level perpetrators.According to another former IHAT investigator, cases were closed against the wishes of senior investigating officers and key decisions were taken out of their hands.
377. More generally, a number of former IHAT investigators reported to the BBC/Times that they believed UK authorities were attempting to cover up alleged crimes. For example, IHAT investigators who sought permission to interview senior officers at Camp Stephen were blocked from doing so by the Ministry of Defence. One IHAT investigator who had requested permission to interview a senior army officer in relation to a killing was refused and repeatedly blocked by IHAT’s leadership and the MoD from pursuing this line of inquiry. According to the same investigator, other IHAT colleagues were told by either a MoD lawyer or IHAT senior leadership to drop a case that had sufficient evidence for prosecution. Former IHAT investigators further alleged that Major Chris Suss-Francksen used falsified witness testimony to exonerate a soldier for shooting Iraqi policeman, Raid al-Mosawi. Suss- Francksen had found that the soldier acted in self-defence, as another soldier witnessed al-Mosawi fire first. However, the supposed witness to the death told IHAT that he did not witness the shooting and he could not say the soldier had acted in self-defence. The soldier also told IHAT that he only heard one gunshot, indicating that al-Mosawi did not fire, and that Suss-Francken’s report was “inaccurate”. IHAT investigators recommended that the soldier should have been charged with unlawful killing and Suss-Francksen charged for covering up the killing, but no charges were laid.612 One former IHAT investigator described this as a “cover up”.
378. The BBC/Times showed former Director of Public Prosecutions, Ken Macdonald, a copy of the evidence they had obtained on the deaths of Rhadi Nama and Abdul Jabbar Mossa Ali at Camp Stephen.Macdonald said that it was “staggering” that no one had been charged based on that evidence.In a piece published by the Sunday Times, Macdonald asserted that the evidence suggests that “many crimes witnessed” at Camp Stephen “were not spontaneous, but sanctioned at senior levels”.He further asserted that the geography of Camp Stephen and its layout rendered it “inconceivable that officers were unaware of the appalling excesses that occurred daily in plain sight”.
The OTP rightly attempted to independently confirm the BBC/Times reporting. And by and large they found confirmation, concluding (para. 407) that, “[o]n the whole, the information received by the Office corresponds to the reports made in the BBC Panorama programme and in the Sunday Times.” Here are the relevant paragraphs, again quoted at length:
380. The Office has pursued a number of lines of inquiry to independently ascertain the veracity of the BBC/Times allegations with a view ultimately to speak with the primary sources of the allegations and other persons directly involved or with knowledge of facts related to the events. Overwhelmingly, those former IHAT staff the Office spoke to indicated that they had concerns about the outcome of IHAT’s investigations. Most considered that the investigative teams did a thorough job, but when it came time for the investigations to progress to prosecutions, there was something obstructing this. The former IHAT investigators were unable to specify what this obstruction was, given their limited access to decision-making, but insisted that such obstruction came at levels higher up within IHAT or the SPA.
381. Several former IHAT investigators reported their frustration at the outcome of inquiries into systemic issues submitted for internal IHAT/IHAPT review, whether in terms of recommendation for further investigative steps or referrals for prosecution, in view of their concern that cases involving superior responsibility were prematurely terminated or that there was leadership pressure within IHAT/IHAPT not to pursue them.
382. Several former IHAT staff were of the view that IHAT’s independence and impartiality was undermined by its relationship with the army and MoD, including: its physical location on a British Army base; IHAT’s use of MoD resources and systems; and requirements that IHAT staff go through the RNP or MoD personnel for certain functions (such as securing custody and travel).
383. Multiple former IHAT staff described difficulties in accessing evidence in the possession of the RMP or the MoD. They described how some RMP and MoD personnel obstructed access to files, in their view unjustifiably; did not permit IHAT staff to locate documents they had been vetted to inspect; and imposed restrictions on access; or were repeatedly told that they had been given all of the relevant material pertaining to a certain matter, only to later discover that they had not. The former IHAT staff described how some storage boxes had been mislabelled, obscuring the discovery of relevant evidence, and their view that the RMP only gave IHAT a fraction of the relevant material they possessed.
384. The former IHAT staff the Office spoke to also conveyed the difficulties the teams encountered in attempting to interview witnesses and suspects and to conduct other investigative steps. They described multiple occasions on which their requests to interview important witnesses were blocked for either unexplained reasons or for administrative ones, such as ‘expenses not allowing’. They described how witness interviews were hampered by IHAT refusing to reimburse witnesses for travel, travel details being changed at the last minute and in one case a potential witness being arrested before meeting with investigators. Some had the impression that IHAT management were trying to put obstacles in their way. Multiple former IHAT staff relayed their impression that there was no will on the part of IHAT management to allow proper investigations which would result in prosecution.
385. Concern was also expressed over the SPA’s involvement in the termination of cases. Several former IHAT staff that the Office spoke to felt that the SPA, as part of the MoD, was not truly independent or impartial respecting the armed forces. Multiple individuals with extensive civilian criminal investigations experience described how the investigation teams built cases which they considered were evidentially strong and ready to proceed, but the SPA refused to lay charges. With respect to certain alleged killing incidents, the view was conveyed that evidence supporting charges of manslaughter or murder, which would have proceeded in a domestic civilian police inquiry, were discontinued by the SPA.
Needless to say, these paragraphs paint a damning portrait of IHAT, SPA, and government obstruction. Even without considering all of the other problems detailed in the Final Report, the BBC/Times reporting and the OTP’s own investigations make it difficult to credit the OTP’s ultimate conclusion that the UK has been willing to genuinely investigate British war crimes in Iraq.
The OTP confronted the relevant senior IHAT, SPA, and UK officials about these allegations. And the Final Report spends considerable time detailing how those officials responded. (See paragraphs 387-406.) Some of those responses are the typical pablum — the staff members left before the investigations picked up, some were bitter because they had been fired, etc — but, in fairness, other responses make sense. Regardless, though, it is clear that the OTP was deeply disturbed by the allegations of a cover-up. Indeed, the Final Report frankly acknowledges that the OTP would have found the UK to be engaged in shielding if there was sufficient evidence to support the IHAT allegations:
407. The Office has treated the allegations of cover-up from former personnel of IHAT with the utmost seriousness. The allegations of intentional disregarding, falsification, and/or destruction of evidence, as well as the impeding or prevention of certain investigative inquiries and the premature termination of cases, are of direct relevance to the Office’s genuineness assessment. Verification of these allegations could have established a basis to seek the opening of an investigation by the ICC, since the relevant domestic proceedings would have been demonstrably vitiated by an unwillingness of the State concerned to carry them out genuinely. Given the determinative nature of the results of these inquiries, the Office undertook the necessary due diligence to verify whether the allegations could be substantiated for the purpose of admissibility proceedings.
The problem, according to the Final Report, is that there isn’t enough evidence. And that brings us to the nine words referenced in the title of this post (emphasis mine):
409. The Office views with concern the fact that professional IHAT investigators – drawn from experienced retired officers of civilian police forces or serving Royal Navy Police personnel – would have made allegations of a cover-up or expressed concerns over the fate of the IHAT investigations that they worked on. At the same time, the Office has put the specific allegations with respect to specific cases, lines of inquiry or decisions taken to the former and current leadership of IHAT, SPLI and SPA in both oral meetings and subsequent written exchanges, and considers that the explanations offered to the Office on each of these allegations appeared generally reasonable. More specifically, after exhausting relevant lines of inquiry, the Office has not been able to substantiate, with evidence that it could rely upon in court, the allegation that decisions were taken within IHAT or the SPA to block certain lines of inquiry or that viable cases with a realistic prospect of conviction were inappropriately abandoned. While the Office cannot categorically rule out such a hypothesis, the evidence available to it at this stage does not allow it to conclude that there was intent on the part of the UK authorities to shield persons under investigation from criminal responsibility.
As the paragraph makes clear, this is why the OTP has decided not to ask the PTC to authorize the Iraq investigation: it can’t substantiate the allegations about shielding “with evidence that it could rely on in court.”
But here is the problem: that is not the legal standard — neither procedurally nor substantively. Procedurally, the OTP does not need to have “evidence that it could rely on in court” that demonstrates the UK is unwilling to genuinely investigate. In fact, it does not have to present the PTC with any evidence at all concerning unwillingness. That was the explicit holding of the Appeals Chamber in the Afghanistan situation (my emphasis):
39. The Appeals Chamber notes that the information that the Prosecutor must provide at this stage is of a limited and very general nature. This is consistent with the preliminary stage of proceedings when the Prosecutor has not had the opportunity to gather evidence and ascertain the facts in the course of an investigation. The Prosecutor is not required to present evidence to support her request and is not required to present information regarding her assessment of complementarity with respect to the cases or potential cases.
I find the Appeals Chamber’s position problematic, but there is no doubt about what the paragraph above means. As long as the OTP believes the UK is unwilling to genuinely investigate British war crimes in Iraq, it can ask the PTC to authorize an ICC investigation. The PTC has no power to review that belief — much less second-guess it.
To be sure, the OTP cannot simply say “we don’t believe the UK is willing to genuinely investigate.” It is bound by Art. 53(1)(b) of the Rome Statute, which provides that, in determining whether “there is no reasonable basis to proceed” with an investigation, “the Prosecutor shall consider whether… [t]he case is or would be admissible under article 17” — an inquiry that includes a complementarity assessment. But that unreviewable determination does not require the OTP to substantiate an unwillingness assessment with “evidence that it could rely upon in court,” a phrase that suggests a quite high substantive standard of proof. It must simply — pursuant to Art. 53 — find a “reasonable basis” to believe that the UK is unwilling to genuinely investigate.
What exactly qualifies as a “reasonable basis” for purpose of Art. 53 is not self-evident, and a complete analysis of that standard of proof is beyond the scope of this post. I will simply quote the OTP’s own Matthew Cross, who has written the most complete study of what a “reasonable basis” substantively requires (emphasis mine):
It would seem to follow that while information meeting the Article 53(1) standard need not be comprehensive or conclusive, it must amount to something more than an entirely unsupported allegation. In other words, it would not suffice for the Prosecutor to initiate an investigation based merely on her determination that the allegations in a referral or Article 15 communication, if true, could satisfy the elements of at least one crime under the Statute. She would, instead, need to be assured that there was at least some factual foundation for those allegations, consistent with the general practice of the Pre-Trial Chamber under Article 15(4).
I challenge anyone to conclude, after reading the “cover-up” section of the Final Report, that the allegations of UK shielding are “entirely unsupported” and do not have “at least some factual foundation.” On the contrary, the OTP’s own independent investigation makes clear that those allegations, though not “comprehensive or conclusive,” establish a reasonable basis to believe that the UK has been unwilling to genuinely investigate war crimes committed by British soldiers in Iraq. That is all that Art. 53(1)(b) requires. Whether the OTP has “evidence that it could rely on in court” is irrelevant.
This analysis, of course, raises the question of why the OTP thinks it needs such evidence. The answer seems to be that the OTP has confused — perhaps deliberately — complementarity at the situational level with complementarity at the case level. At one point in the Final Report, the OTP says the following:
283, More generally, the Appeals Chamber has described the finding by the Court that a State is unwilling genuinely to investigate or prosecute as having to meet a “high threshold”.
The OTP’s citation for that paragraph, however, is to the appeals judgment in the Al-Senussi case — which had nothing to do with whether Libya was generally willing to investigate allegations of criminal wrongdoing. Instead, the judgement concerned a challenge to the admissibility of a specific case. When a defendant challenges admissibility on complementarity grounds, it does indeed make sense to hold the OTP to a “high threshold” for finding unwillingness — a low threshold would make it too easy for the OTP to retain control over the case, thereby undermining the entire point of complementarity. But no such concern is present when the OTP is unilaterally considering whether a state is generally willing to investigate criminal allegations. Indeed, at the situational level, there are many reasons why a low threshold of unwillingness should (and does) apply, such as the fact that the OTP’s powers of investigation are very limited at the preliminary-examination stage. The Al-Senussi judgment thus provides no support for the OTP’s claim that there is a “high threshold” for concluding — in a non-reviewable manner! — that the UK is unwilling to genuinely investigate. Again, a reasonable basis for that conclusion is all that is substantively required.
So, what now? Unfortunately, the Rome Statute does not seem to permit judicial review of the OTP’s decision to close the Iraq preliminary examination. Because this is a proprio motu situation, the only applicable provision is Art. 53(3)(b), which allows the PTC to refuse to confirm an OTP declination that is based solely on the interests of justice. The PTC can review a declination based on admissibility concerns only when the situation in question was referred by a state (as with Comoros) or the Security Council, which is not the case here.
The OTP’s decision not to investigate British war crimes in Iraq, therefore, is almost certainly final — at least under the current OTP. Perhaps, with enough outcry, the next Prosecutor will reverse course and seek authorization to investigate. Such a reversal would be completely warranted, given that the OTP’s decision is based solely on its belief that it cannot open an investigation without “evidence that it could rely on in court” satisfying the “high threshold” for finding the UK to have shielded British soldiers from justice. As I have shown in this post, that belief is mistaken.
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