THE INTERNATIONAL Criminal Court has said it will not take action against the UK, despite its finding of evidence British troops committed war crimes in Iraq.
Its 180-page report specifically says that ‘hundreds of Iraqi detainees were abused by British soldiers between 2003 and 2009’. But the ICC could not determine whether the UK had ‘acted to shield soldiers from prosecution’, and its Special Prosecution Authority declined to prosecute.
The UK’s Ministry of Defence (MoD) said that the ICC’s report ‘vindicates our efforts to pursue justice where allegations have been founded’. Yet the ICC has specifically told the BBC: ‘It is without dispute there is evidence war crimes were committed.’
And its report said too that there was a ‘reasonable basis’ to conclude that ‘at least seven Iraqis were illegally killed while in British custody’ between April and September 2003.
The report’s Executive Summary reads as follows:
‘1. On 13 May 2014, the Prosecutor re-opened the preliminary examination into the situation in Iraq/United Kingdom (UK). In its 2017 Report on Preliminary Examination Activities, the Office announced that, following a thorough factual and legal assessment of the information available, it had reached the conclusion that there was a reasonable basis to believe that members of UK armed forces committed war crimes within the jurisdiction of the Court against persons in their custody …
‘The Office’s admissibility assessment has now been completed. For the reasons set out in this report, the Prosecutor does not conclude that the UK authorities have been unwilling genuinely to carry out relevant investigative inquiries and/or prosecutions (article 17(1)(a)) or that decisions not to prosecute in specific cases resulted from unwillingness genuinely to prosecute (article 17(1)(b)).
‘On this basis, having exhausted reasonable lines of enquiry arising from the information available, the Office has determined that the only appropriate decision is to close the preliminary examination without seeking authorisation to initiate an investigation.
‘2. The preliminary examination has found 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, as set out below, 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 pursuant to article 8(2)(a)(i) or article 8(2)(c)(i)), 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 (article 8(2)(a)(ii) or article 8(2)(c)(i)); and the war crime of outrages upon personal dignity (article 8(2)(b)(xxi) or article 8(2)(c)(ii)) 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 article 8(2)(b)(xxii) or article 8(2)(e)(vi), at a minimum, against the seven victims, while they were detained at Camp Breadbasket in May 2003.
‘3. These crimes, while not exhaustive, were sufficiently well supported to enable a subject-matter determination on crimes within the jurisdiction of the Court. In this respect, the Office recalls the wider body of findings by other public authorities and institutions in the UK that hundreds of Iraqi detainees were subjected to conditions of detention and practices which amounted to inhuman or degrading treatment.
‘Although the Office’s findings may not be fully representative of the overall scale of Page 5/184 the victimisation, they appear to correspond to the most serious allegations of violence against persons in UK custody.
‘4. The Office has not identified evidence of an affirmative plan or policy on the part of the Ministry of Defence (MoD) or UK Government to subject detainees to the forms of conduct set out in this report. Nonetheless, the Office has 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.
‘As set out in this report, despite the existence of standards of procedure in the MoD requiring detainees to be 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.
‘As the Baha Mousa Inquiry found, by the time of the Iraq war, the MoD had no generally available written doctrine on the interrogation of prisoners of war, other than at a high level of generality …
‘Instead, doctrine had largely become restricted to what was taught during interrogation courses, with varying degrees of understanding of what was permissible, as well as variations in emphasis and interpretation between different instructors.
‘This spilled over into the early rotations of Operation Telic (“Op TELIC”), with UK service members holding differing views on what was permissible. But even if doctrinal shortcomings may have contributed to such processes, as domestic public inquiries have stressed, this could not excuse or mitigate the serious and gratuitous forms of violence inflicted in some incidents concerned.
‘Indeed, as set out below, a key aspect of the Iraq Historic Allegations Team (IHAT)’s work following the ECtHR’s 2011 ruling in Al Skeini and the High Court’s 2013 ruling in Ali Zaki Mousa and others, was to determine whether evidence available supported referring criminal charges against commanders and other superiors for the underlying conduct.
‘5. The Office’s findings that some members of UK armed forces subjected Iraqi detainees to forms of abuse are not new or unique. Other public bodies and judicial reviews examining the body of evidence relating to the conduct of members of British forces have reached the same conclusion.
‘Nor is it controversial to conclude that 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.
‘As such, one of the key areas of focus for the Office’s preliminary examination into the situation in Iraq/UK, which was re-opened on 2014, was to examine the relevance and genuineness of subsequent investigations into historical allegations by IHAT and later the Service Police Legacy Investigations (SPLI), and of decisions by Service Prosecuting Authority (SPA) on the submission of cases for prosecution.
‘6. The outcome of the more than ten-year-long domestic process, involving the examination of thousands of allegations, has resulted in not one single case being submitted for prosecution: a result that has deprived the victims of justice.
‘Although IHAT and SPLI did refer a handful of cases to the SPA for prosecution, the SPA declined to prosecute in each instance on the grounds that the cases failed to meet the evidential test or the public and service interest component of the “full code test”.
‘This outcome might trigger apprehension that either the claims submitted were frivolous and vexatious, or, conversely, that the UK process was not genuine and was designed to intentionally shield alleged perpetrators from criminal responsibility.
‘Unpacking these issues has proven more complex than might immediately be expected …’
