First flight to Iraq by British forces by Dan Pupek.

ICC Prosecutor’s Decision Not to Investigate UK Abuses in Iraq is a Further Blow for Accountability

The ICC Prosecutor’s decision to close a preliminary examination into alleged war crimes committed by British personnel during British military operations in Iraq, announced today, highlights the need for the UK to continue pursuing accountability domestically for the alleged crimes in the light of the extent and gravity of the abuse allegations. 

The ICC Prosecutor’s detailed report explaining her decision not to open an investigation found that there is a reasonable basis to believe that members of the British armed forces committed the war crimes of wilful killing, torture, inhuman/cruel treatment, outrages upon personal dignity, and rape and/or other forms of sexual violence, and that the initial response of the British Army “was inadequate and vitiated by a lack of a genuine effort to carry out relevant investigations independently or impartially.”  

The ICC Prosecutor also concluded that the fact that the allegations investigated by the UK authorities did not result in prosecutions does not mean that these claims were vexatious, as stated by former Prime Minister Theresa May and several Defence Secretaries, but was in large part due “to the inadequacies of the initial investigations conducted by the British military in theatre.”  

“The Office has found untenable the proposition that these various processes all arose from vexatious claims,” the ICC Prosecutor said in her statement. While acknowledging the efforts made by the UK authorities to address these allegations at a later stage, she noted that the lack of prosecutions “has deprived the victims of justice.”  

In her report the ICC Prosecutor pointed to numerous failings of the investigation process undertaken in the United Kingdom, including: 

  • the initial response of the British Army in theatre at the time of the alleged offences was inadequate and vitiated by a lack of a genuine effort to carry out relevant investigations independently or impartially. The institution of public inquiries and the subsequent creation of IHAT were a response to the admitted failures of the British army at the time to conduct effective investigations into allegations of wilful killing and abuse of detainees in Iraq. (para. 5) 
  • a significant and recurrent weakness in the cases that [IHAT] investigated was the dearth of forensic evidence and inconsistencies in witness testimony given the historical nature of the investigations, years after the events [which]…was also due – at least in part – to the inadequacies of the initial investigations conducted by the British army in theatre(para. 7) 

The Office of the Prosecutor singles out for criticism statements made by former Prime Minister Teresa May as well as Defence Secretaries Penny Mordaunt and Ben Wallace who suggested that claims brought by lawyers against the government were spurious. The Office of the Prosecutor said that the statements appeared to “considerably exaggerate or misstate those findings:  

For example, while the Al Sweady Inquiry did find the most serious allegations of torture and unlawful killing involving the six claimants in that case to be baseless and lies, it upheld as proven other lesser allegations of ill treatment Indeed, numerous other claims have been accepted by UK courts, the Baha Mousa Inquiry, the various IFIs [Iraq Fatality Investigations], and a significant volume of compensation awards at the civil law standard have been settled out of court by the MoD. Moreover, official UK bodies and inquiries, including those of the MoD (such as the SIWG [Systemic Issues Working Group]), have accepted as proven that various prohibited acts complained of (such as the use of the five techniques) occurred as a matter of practice at least during the early period of Op TELIC. Given these findings, it appears disingenuous to describe the entire body of claims, involving hundreds of claimants, as baseless or spurious.” (para. 462) 

The law demands – and victims deserve – that all credible allegations of abuse get effective, prompt, independent investigation. Where there is sufficient evidence and it is in the public interest, prosecution should follow. And yet the number of prosecutions brought by UK authorities related to Iraq and Afghanistan has been vanishingly small. There has been no accountability whatsoever for senior officials who may have ordered the abuses or turned a blind eye to them.  

The UK is subject to clear obligations under international law to prosecute serious crimes, such as those which the Prosecutor believes were committed by UK forces in IraqIf the UK is unable or unwilling to investigate or prosecute such crimes itself, the ICC can step in to ensure that accountability is achieved. 

Such prosecutions are not just important for the victims of such crimes. Adherence to such standards also help to ensure the safety of UK forces in conflict.  

Most outstanding investigations by UK authorities into alleged detainee abuses have now been closed. Unfortunatelythe Prosecutor’s decision means that the suspicion remains that justice has not been done or been seen to be done in all detainee abuse cases, and that the roots of the systemic abuse remain uninvestigated 

Rupert Skilbeck, Director of REDRESS, said: 

“Survivors of torture and ill-treatment will be profoundly disappointed that the ICC Prosecutor will not now be pursing her investigation against the UK. The Prosecutor is clear that there was strong evidence of war crimes  – including the use of the ‘five techniques’ – and identifies numerous concerns with the UK investigations, not least that there were no prosecutions despite such a large number of accepted claims.  The fact remains that the UK should itself have mounted prompt and effective prosecutions in the light of the extent and gravity of the abuse allegations. It remains clear that the initial investigations were woefully inadequate.”

 The decision of the ICC Prosecutor highlights the need to ensure that any wrong-doing is identified and those responsible (whether soldiers on the ground, or commanders and senior officials giving the orders) are held accountable, and the high standards of the UK armed services are preserved.  

For more information or for an interview, please contact Eva Sanchis, REDRESS’ Head of Communications, on or +44 (0) 7857110076. 

Notes to editors 

  1. In 2014, the International Criminal Court re-opened its preliminary examination of the UK in relation to allegations of systematic detainee abuse by UK armed forces personnel between 2003-2008.
  2. Despite its ultimate conclusion not to proceed to open a full investigation, the report from the ICC Prosecutor published today confirms that: 

… there is a reasonable basis to believe that various forms of abuse were committed by members of UK armed forces against Iraqi civilians in detention. In particular, … there is a reasonable basis to believe that from April 2003 through September 2003 members of UK armed forces in Iraq committed the war crime of wilful killing/murder … at a minimum, against seven persons in their custody. The information available provides a reasonable basis to believe that from 20 March 2003 through 28 July 2009 members of UK armed forces committed the war crime of torture and inhuman/cruel treatment …; and the war crime of outrages upon personal dignity …against at least 54 persons in their custody. The information available further provides a reasonable basis to believe that members of UK armed forces committed the war crime of rape and/or other forms of sexual violence … at a minimum, against the seven victims, while they were detained at Camp Breadbasket in May 2003. (para. 2) 

 … several levels of institutional civilian supervisory, and military command, failures contributed to the commission of crimes against detainees by UK soldiers in Iraq. (para. 4) 

 …despite the existence of standards of procedure in the MoD requiring detainees to the treated humanely, a number of techniques found unlawful in UK domestic law in 1972 and banned from use – especially in interrogations – re-entered practice through gradual attrition of institutional memory and lack of clear guidance. (para. 4) 

3. The findings of various inquiries and criminal prosecutions, combined with evidence presented to UK High Court trials, suggests that abuse was indeed systemicExamples include the following: 

3.1. Mr Justice Leggatt’s judgment in the civil action brought by Mr Alseran [emphasis added]: 

…[the Claimant] was subjected to the following practices which were routinely used at the relevant time in handling prisoners, but which amounted to inhuman and degrading treatment: 

a. “harsh” interrogation, which involved a deliberate attempt to humiliate the detainee by insulting and shouting personal abuse at him;  

b. being deliberately deprived of sleep for the purpose of interrogation during the first day and a half of his detention; and  

c. complete deprivation of sight and hearing by being made to wear blacked out goggles and ear defenders for most of the first 12 hours following his arrest and thereafter whenever he was taken out of his cell while undergoing interrogation during the first 13 days of his detention.1 

 3. 2. The findings of the Baha Mousa inquiry: In the notorious case of Baha Mousa, a hotel worker who was effectively tortured to death, a court martial judge blamed the weak evidence on a “more or less obvious closing of the ranks”, which prevented all the perpetrators who administered the blows from being identified. 

Photo credit: Dan Pupek.