Guest Post: Meloni–Can the ICC investigate UK higher echelons’ command responsibility for torture committed by the armed forces against Iraqi detainees?

[Dr. Chantal Meloni teaches international criminal law at the University of Milan is an Alexander von Humboldt Scholar at Humboldt University of Berlin.]

1. A new complaint (technically a Communication under art. 15 of the Rome Statute) has been lodged on the 10^th of January to the Intentional Criminal Court, requesting the Prosecutor to open an investigation into the denounced abuses committed by UK military forces against Iraqi detainees from 2003 to 2008.

The complaint has been presented by the British Public Interest Lawyers (PIL), representing more than 400 Iraqi victims, jointly with the Berlin-based European Centre for Constitutional and Human Rights (ECCHR).

The lawyers’ allegation is that grave mistreatments, including torture and other degrading abuse techniques, were commonly used during the six years in which the UK and Multinational Forces operated in Iraq.

According to the victims’ account the mistreatment was so serious, widespread and spanned across all stages of detention as to amount to “systemic torture”. Out of hundreds of allegations, the lawyers focused in particular and in depth on eighty-five cases to represent the mistreatment and abuses inflicted, which would clearly amount to war crimes.

2. This is not the first time that the behaviour of the UK military forces in Iraq is challenged before the ICC. In fact, hundreds of complaints have been brought on various grounds both to domestic courts and to the ICC since the beginning of the war. As for the ICC, after the initial opening of a preliminary examination, following to over 404 communications by Iraqi victims, in 2006 the ICC Prosecutor issued a first decision determining not to open an investigation in the UK responsibilities in Iraq. According to that decision, although there was a reasonable basis to believe that crimes within the jurisdiction of the Court had been committed, namely wilful killing and inhumane treatment, the gravity threshold was not met. Indeed the number of victims that had been taken into account at that time was very limited, totalling in all less than 20 persons, so that the Prosecutor found that the ‘quantitative criteria’, a key consideration of the ICC prosecutorial strategy when assessing the gravity threshold, was not fulfilled.

Therefore, what is there new that in the view of the lawyers warranted the re-proposition of such a request? In the first place it shall be noted in this regard that during the eight years that passed since then many more abuse allegations have emerged (see the Complaint, p. 110 ff.). Most notably, hundreds of torture and mistreatment allegations show a pattern – spanning across time, technique and location – which would indicate the existence of a (criminal) policy adopted by the UK military forces when dealing with the interrogation of Iraqi detainees under their custody.

In the words of the lawyers, “it was not the result of personal misconduct on the part of a few individual soldiers, but rather, constituted widespread and systematic mistreatment perpetrated by the UK forces as a whole”.

3. In the light of the systemic nature of the abuse, the crucial question is how to determine the responsibility for the alleged war crimes, which were now brought before the ICC Prosecutor. As it is well known, indeed, one of the most problematic issues in international criminal law is the determination of the individual accountability for the commission of macro-crimes, as war crimes, crimes against humanity and genocide, which are typically the result of a multitude and multi-layered responsibilities.

It can be here recalled what was already and more in depth observed with regard to the similar and parallel abuse against Iraqi detainees committed by the US forces: the repeated and systematic occurrence of acts torture and mistreatment of prisoners in Iraq implies a number of legal questions regarding the criminal accountability of the subjects involved, from the ordinary soldier, direct perpetrator of the offences, up along the chain of command (I discuss this in C. Meloni, Superior Responsibility for acts of torture committed by subordinates under International Criminal Law. The case of US abuse against Iraqi prisoners, p. 577).

There is certainly no doubt that soldiers who intentionally mistreat individuals under their custody shall be held responsible for their criminal actions; but what about officers that ordered, approved or failed to intervene when they knew that their subordinates were about to commit or had committed such crimes?

In the US, the infamous Abu Ghraib abuse was described – despite the evidence of involvement at the highest levels – as if it were just the result of the deviant behaviour of some “bad apples”: similarly the military inquires and criminal proceedings conducted by the UK authorities on the abuses against detainees committed by their armed forces in Iraq are unsatisfactory to the extent that they fail to address the possible responsibility of the higher echelons for the commission of such crimes (for an overview of the investigations carried out in the UK, see the UK-ICC Communication, p. 215 ff.).

4. The lawyers’ effort to analyse in detail and reconstruct thoroughly the chain of command of the UK forces in charge for the Iraqi operation in those years is in my opinion the most notable and valuable point of this complaint (see the UK-ICC Communication, p. 157-202). Beside the criminal liability of those who were responsible for the interrogation policy in Iraq, who may be held liable pursuant to article 25(3) of the Rome Statute, the lawyers point out in particular to the command and superior responsibility, under article 28 of the Rome Statute, of individuals higher up in the chain of command of the UK military and political apparatus, including senior civil servants and lawyers within the MoD; the complaint indicates, with names, those who knew or should have known that war crimes were being committed by UK armed forces, and failed in their obligation to prevent and punish such crimes.

Of these individuals, there is an analysis of the responsibility of the  highest civilian commanders of UK forces and had primary responsibility for ensuring that military and civilian personnel acted in accordance with the law: Geoffrey Hoon, the Secretary of State Defence during the Iraq operations (until May 2005), and Adam Ingram, the Minister of State for the Service Personnel (until June 2007). Indeed, as the complaint suggests, there is strong evidence that these individuals knew or consciously disregarded information (including ICRC and Amnesty International timely reports, as well as the ICC Prosecutor decision of 2006) that clearly indicated that the UK forces were committing war crimes in Iraq, including unlawful interrogation techniques and other serious detainees’ mistreatment, and that they failed to take any measures to prevent or punish such crimes (within the meaning of article 28 lett. b) of the Rome Statute).

5. It now remains to be seen what the ICC Prosecutor will decide with regard to this new communication brought on behalf of hundreds of Iraqi victims: if she will follow the track of her predecessor and, as in 2006, refuse the opening of such an “uncomfortable” investigation, or, taking into account the new elements which have emerged in the last eight years, will reconsider the issue under a different light. For sure one major difficulty can be anticipated with regard to the complementarity principle: the circumstance that several military proceedings, and even some criminal investigations, have been taken place in the UK over the last years (see for instance the Baha Mousa Inqury) may be used as an argument to conclude that the UK has a functioning domestic legal and judicial system and therefore no intervention of the ICC is needed/possible. However, at a closer analysis it appears clear that those who bear the gravest responsibility for the crimes have been granted so far virtually complete immunity. Given the systematic character of the abuse, the failure to ensure accountability at the higher levels for ending such criminal practices fostered a criminal environment and became a cause for further abuse against the Iraqi detainees in UK custody (the so-called “force-drift”).

This is why we can only auspicate that the commanders’ failure to exercise effective control over their subordinates, the failure to prevent, repress or punish the criminal behaviour, which lead to the systematic commission of war crimes by the UK armed forces in Iraq (as well as it happened with regard to the US forces), be effectively investigated and, if needed, punished by the ICC.