The ICC, British War Crimes in Iraq and a Very British Tradition

[Andreas Schueller is the Director of the International Crimes and Accountability Program at the European Center for Constitutional and Human Rights.]

On 9 December 2020, the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) in The Hague announced its decision to close the preliminary examination into alleged war crimes by British troops in Iraq between 2003 and 2009. The OTP explained its reasons in an unprecedented 184-page report.

The history of the Iraq/UK situation before the ICC is long, with a tumultuous history of ups and downs starting with initial communications filed to the then-newly-established court in 2004, when the first allegations of British war crimes in Iraq came to light. The OTP prematurely closed the preliminary examination in 2006, arguing that the gravity threshold had not been reached due to the low number of cases. In 2014, the European Center for Constitutional and Human Rights (ECCHR; case page) and Public Interest Lawyers filed a new Article 15 communication, which led to the re-opening of the situation within months. Further communications by ECCHR and PIL followed and, in 2017, the OTP acknowledged that there was a reasonable basis to believe that war crimes had been committed by UK troops in Iraq. In 2019, another ECCHR submission argued that, according to the principle of complementarity, the OTP should move to open investigations, as the UK had proved unwilling to adequately investigate and prosecute command chain responsibility for its forces’ systematic abuse of detainees in Iraq. With its decision on 9 December 2020, the OTP closes the preliminary examination once again, with the option of further re-opening it if new information or evidence should come to light.

In its report, the OTP confirmed that members of the British armed forces committed war crimes of wilful killing, torture, inhuman/cruel treatment, outrages upon personal dignity, and rape and/or other forms of sexual violence (para. 113). Further, it found that “several levels of institutional civilian supervisory and military command failures contributed to the commission of crimes against detainees by UK soldiers in Iraq” (para. 371). The OTP also found the reported cover-up allegations around the Iraqi Historic Allegations Team (IHAT) to be accurate and credible (para. 408). Finally, the OTP criticized the length of domestic proceedings in the UK that, by now, have taken more than ten years, noting their impact on later investigations’ “practical ability to progress many allegations” (para. 432). The report’s strong findings on the commission of international crimes by UK troops and on the failure of the UK’s domestic justice system do not correspond at all with the OTP’s final decision to close the preliminary examination. Indeed, the OTP’s conclusion demands serious attention, analysis and discussion about the shortcomings of prevailing domestic and international justice systems, as the allegations and facts of the UK forces’ crimes, as such, are undisputed.

Article 17 of the Rome Statute requires that the Court determine whether a case is admissible or not. More specifically, when examining the requirements in Article 17(2) for proving a state’s unwillingness to genuinely proceed with domestic investigations and prosecution, the Statute speaks of “the person concerned” that should not be shielded by a state. Both parts of Article 17 suggest that the Statute is concerned about testing admissibility in the context of a concrete case with a concrete suspect, not an overall situation with individual suspects who have yet to be determined. Moreover, different requirements exist in terms of the level of information or evidence necessary to address a situation or a case, as Kevin Jon Heller argues in an earlier post.

The OTP’s report analyzes the entire situation and a multitude of potential cases and suspects, concluding that it does not find “a larger pattern of shielding” (para. 487) nor sufficient evidence that would allow it to prove admissibility before the Pre-Trial Chamber. As such, the OTP acts as an oversight body for the UK’s competent authorities and their investigations in general, rather than a prosecutor’s office responsible for investigating specific individual cases. Instead of pushing for formal investigations, something one would expect from a prosecutor, and making a case with the information available that supports arguments of the UK’s shielding of perpetrators, the OTP applies an overly high evidentiary standard for proving the UK’s general shielding of perpetrators and thus doesn`t proceed to request the opening of investigations. While the OTP report quotes the view of the Appeals Chamber to emphasize that information on shielding perpetrators based on “impulse, intuition and conjecture or on mere sympathy or emotion” (para. 487) would not be sufficient for a judicial decision, there is certainly sufficient factual information available about the UK’s behavior in shielding perpetrators in the context of its domestic investigations into war crimes in Iraq, partially referenced in para. 486 of the OTP report itself, to meet the Appeals Chamber requirements and to warrant the opening of an investigation in this situation.

Shielding its personnel from criminal accountability is a distinct tradition within the UK and its armed forces, especially with regard to those civilian and military leaders at the top of the chain of command. This tradition stretches from Britain’s colonial wars to the Troubles in Northern Ireland and, most recently, Iraq. The so called “five techniques” – illegal interrogation methods defined as prolonged wall-standing, hooding, subjection to noise, deprivation of sleep, and deprivation of food and drink, which constitute torture, ill-treatment and outrages upon personal dignity – have formed a part of British counterinsurgency strategy for decades, used against local populations in countries and territories invaded and occupied. Definitively banned by the UK government in the 1970s, the five techniques reappeared during the Iraq occupation, where they were practiced by UK troops from the first day to the last.

In the context of war crimes committed by British forces in Iraq, the UK has not secretly shielded its high-ranking personnel from accountability, but done so in a blatant and aggressive manner. It has attacked those representing Iraqi victims and witnesses with the aim of destroying the evidentiary value of their testimonies in an unprecedented approach that it continues to pursue across a range of cases even today. By taking legal actions and calling claims “vexatious” and law firms “ambulance-chasing” (para. 461), the state’s executive branch has attacked the domestic justice system, as such, and successfully brought down many of those seeking to enable victims’ access to justice. The Ministry of Defense supported and applauded the Solicitors Disciplinary Tribunal’s decision that, in the end, led to the closure of Public Interest Lawyers and left hundreds of Iraqi victims without legal representation in the UK, without witness support during their interviews with IHAT, and without the possibility to exercise their rights as part of investigations. Further, investigative mechanisms like IHAT were shut down in an extremely hostile climate. The Prime Minister at the time and several Secretaries of Defense over the years have openly attacked the idea of holding any form of investigation into British soldiers, let alone commanding officials, and have pressured investigative bodies to shut down all cases as soon as possible.

In its report, the OTP failed to address the UK as a state. By focusing only on the judiciary, it turned a blind eye to the power and influence of the legislative and executive branches in obstructing the judiciary to a degree that eliminates all room for domestic prosecutions. The OTP decided “in situations where different national institutions may demonstrate varying and inconsistent degrees of willingness/unwillingness, primary consideration should be given to the conduct of the competent authorities responsible for carrying out the proceedings in question” (para. 457). By taking such a narrow approach, the OTP willingly overlooks the effects that aggressive political statements and actions (including the recently proposed Overseas Operations Bill that threatens to make prosecutions even more unlikely) have on the culture and climate of the armed forces, linkage witnesses, investigators and prosecutors, even if many still try to perform their work as professionally as possible under the given circumstances.

The UK was certainly unwilling to investigate when the Royal Military Police acted in a way that obstructed evidence rather than gathered it, leading to a situation in which subsequent investigative bodies have been unable to secure sufficient evidence for prosecutions (see also para. 447). Indeed, the UK has managed to get by with zero prosecutions to date because domestic entities’ initial unwillingness to adequately investigate and prosecute led to an inability to do so later on. In other words, the UK’s initial years of obstructing justice are the only reason it is able to demonstrate that it is not engaged in shielding perpetrators today. If allowed to go unchallenged by the ICC, this approach will undoubtedly be adopted by other states going forward.

The ICC, founded in 2002 as the global institution of last resort for investigating and prosecuting grave international crimes, has failed to break the cycle of states shielding their own and getting away with war crimes. Created as a criminal court to close the impunity gap and hold responsible high-ranking officials to account, the OTP has let the British off the hook. Neither the UK nor the ICC will hold those who brought the illegal five techniques back into practice in Iraq to account. They will not ensure accountability for those who trained UK armed forces in the techniques prior to their deployment, nor accountability for those who were in a position to stop their use after knowledge of their resurgence became known. All of these actions and omissions are criminalized under the principle of command and superior responsibility. The decision by the OTP displays a troubling self-image of Court’s role in the broader system of international criminal justice in the 21st century.

The OTP’s decision reinforces longstanding double standards in international justice and shows once again that powerful actors can get away with systematic torture. It fails to close the impunity gap for which the ICC was created. States will take the decision as a confirmation that an appearance of justice is all that it is required to neutralize an ICC criminal investigation and get away with war crimes and torture at the highest levels. At the end of Fatou Bensouda’s time in office, the OTP took a sharp turn in the wrong direction.