Updated: February 24, 2021
Human Rights Watch on Thursday condemned the International Criminal Court (ICC) prosecutor’s decision to close a preliminary examination of alleged war crimes by British forces in Iraq, saying it is likely to fuel the perception of a double standard in international justice.
On December 9, 2020, the ICC prosecutor, Fatou Bensouda, announced that after a six-year initial inquiry, her office will not pursue a formal investigation into alleged war crimes by United Kingdom nationals in the context of the Iraq conflict and occupation between 2003 and 2008.
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The prosecutor’s office confirmed, though, that there was clear evidence that UK forces were responsible for numerous war crimes in Iraq, including wilful killing or murder, torture and other serious abuses of detainees, and rape and other sexual violence.
“The UK government has repeatedly shown precious little interest in investigating and prosecuting atrocities committed abroad by British troops,” said Clive Baldwin, senior legal advisor at Human Rights Watch. “The prosecutor’s decision to close her UK inquiry will doubtless fuel perceptions of an ugly double standard in justice, with one approach for powerful states and quite another for those with less clout.”
In a nearly 200-page report, Bensouda’s office said that it would not pursue a full investigation because it could not conclude that the UK authorities have been unwilling genuinely to carry out relevant investigative inquiries and/or prosecutions. At the same time, it detailed some areas of concern related to the UK approach to addressing allegations of serious crimes. Bensouda said that her office remained open to reconsidering the decision based on new facts or evidence.
The ICC prosecutor confirmed an earlier finding that there is a reasonable basis to believe that UK armed forces committed war crimes against detainees in Iraq. Though Iraq is not an ICC member, the court has jurisdiction over alleged serious crimes by the nationals of its member countries – in this case, UK nationals.
The ICC is a court of last resort. Under the principle of “complementarity,” cases are only admissible before the ICC if national authorities have not conducted genuine, domestic proceedings. If countries have an interest in avoiding ICC intervention, they can conduct national proceedings. In May 2014, the ICC prosecutor’s office had announced that it was reopening a preliminary examination, closed in 2006, into alleged British war crimes in Iraq.
Between March 2003 and May 2009, British forces took part in the invasion, occupation, and governing of Iraq. During and after these six years, information emerged indicating widespread, serious abuses of Iraqis in British detention, including assaults, torture, and deaths. Many of the abuses, amounting to torture or other war crimes, were the result of broader systemic failures. Starting in 2004 – and continuing after UK forces left Iraq – Iraqis who alleged that British troops had unlawfully killed, detained, or abused them or their relatives pursued various legal remedies in the United Kingdom.
Under pressure, UK governments agreed to several public inquiries that found evidence of serious and repeated abuse of detainees in Iraq, including the beating death of a hotel receptionist, Baha Mousa, in 2003. One inquiry found allegations of the murder of prisoners to be false but still found systematic abuse of detainees. A UK court, after hearing evidence in claims for damages in test cases, found that Iraqis had been systematically abused in British detention. The Defense Ministry has paid out millions of pounds to hundreds of other Iraqis who said they had been abused.
Despite the repeated findings by British courts, inquiries, and other inquests that some UK soldiers mistreated Iraqis in detention during the Iraq war, there has been virtually no domestic criminal accountability, Human Rights Watch said. In 2017, the UK government interfered with and prematurely shut down a domestic criminal investigation into the allegations, the Iraq Historic Allegations Team (IHAT), after pressure from some media and members of parliament. The IHAT process had not resulted in any prosecutions by the time it was effectively closed, with a few cases transferred to another body for further investigation.
In November 2019, a BBC TV Panorama and Sunday Times joint investigation reported that the British government and military repeatedly covered up evidence of war crimes in Iraq and Afghanistan. The investigation reported that detectives involved in IHAT had serious concerns that military prosecutors had declined to bring charges despite credible evidence of offenses. The Defense Ministry has denied the allegations.
Only one British soldier has received a prison sentence – of one year – for war crimes in Iraq. There has been no criminal accountability for senior British military and political figures who either ordered the abuses, turned a blind eye, or prevented prosecutions, although they could be held criminally liable, including under the principle of command responsibility, Human Rights Watch said.
In recent years, following an official finding of misconduct and the disbarment of one lawyer representing Iraqi claimants, UK governments have repeatedly attacked the entire legal profession for bringing cases against it concerning abuses in Iraq. The UK government pressured the lawyers’ regulator to bring professional misconduct charges against three lawyers from a separate leading human rights firm that had brought many of the civil claims by Iraqis. A tribunal cleared them of all charges. Former Prime Minister Theresa May, announced in a public speech that she would not permit “activist, left-wing human rights lawyers” to “harass the bravest of the brave,” and her defense minister said, “we don’t need these ambulance-chasing British law firms.”
The ICC prosecutor’s decision to end her inquiry follows moves by the UK government to seek parliament’s approval of a law – the Overseas Operations Bill – that would make it nearly impossible to prosecute British soldiers for torture and other war crimes committed overseas. The law would create a “presumption against prosecution” after five years and would also increase the authority of the attorney general, a member of the government, to protect soldiers from prosecution. In her decision, the ICC prosecutor noted that the adoption of such a law “remains prospective” and that her office would only be able to factor its impact on the UK’s ability to address ongoing cases or other allegations once it was in place.
In spite of the ICC’s growing docket, the UK has insisted on restricting increases in the court’s budget to a bare minimum. It has also called for setting timelines for completion of the prosecutor’s preliminary examinations. This has given rise to the appearance that the UK sought to indirectly pressure the prosecutor’s office over its UK preliminary examination, Human Rights Watch said.
“No one can be in any doubt after reading this report that UK forces were responsible for multiple war crimes in Iraq,” Baldwin said. “And yet the ICC prosecutor seems to have given the UK government the benefit of the doubt despite its failure to prosecute anyone in over a decade for war crimes, and its blatant interference in justice by shutting down the criminal investigation.”