20.11.19 | 0 Comments

An investigation by BBC Panorama and the Sunday Times has revealed what 11 detectives have called “credible evidence” of war crimes committed by British soldiers in Iraq. This will not come as news to those who are aware of the European Centre for Constitutional Human Rights (ECCHR)’s file that was submitted to the Office of the Prosecutor (OTP) at the International Criminal Court in 2014, but the television programme and its claim that there may have been a “cover-up”  has reignited the discussion.

“Panorama, War Crimes Scandal Exposed” aired on BBC on the 18th of November and it suggests that there is new evidence implicating British troops in the killing of children and in the torturing of civilians in Iraq and Afghanistan. In addition, it suggests that the British government was complicit in covering up the alleged crimes.

The evidence was allegedly obtained from within the specialised unit, Iraq Historic Allegations Team (IHAT) which investigated alleged war crimes committed by British troops in Iraq. IHAT was set up by the UK Ministry of Defence in March 2010 and it consisted of Royal Navy Police officers and ex-civilian police detectives, who were tasked with investigating and establishing the facts. According to the ECCHR, 70% of the allegations received were dismissed before they even reached the full investigation phase.

The UK government shutdown IHAT in June 2017 after solicitor Phil Shiner, former head of Strategic Litigation at Public Interest Lawyers, (who had brought over 1000 cases to IHAT’s attention) was disbarred after he was accused of paying people in Iraq to secure clients.  Some former IHAT investigators told British reporters that Shiner’s conduct was used as an excuse to bring an end to all the inquiries. The Service Police Legacy Investigations (SPLI) took over IHAT’s work in July 2017. According to the latest SPLI Quarterly Update (31 March 2019 to 30 June 2019), they “have closed or are closing” 1,133 allegations.

Therefore, according to the British press, none of IHAT’s cases or the 3392 (some sources put the figure at over 3600) allegations brought to their attention has resulted in prosecution. The OTP’s 2018 Preliminary Examination Report states that at least one of IHAT’s referrals lead to a guilty plea.

The Ministry of Defence (MoD)’s  response to British news outlets was that the police conducted extensive investigations into allegations and the SPA decided not to prosecute any of the cases brought to its attention. The MoD called the allegations of a cover-up “unsubstantiated.”

In 2014, The ECCHR, a German based “independent, non-profit legal and educational organization dedicated to enforcing civil and human rights worldwide” in conjunction with the UK Public Interest Lawyers, sent a communication to the Prosecutor at the ICC containing allegations of war crimes and widespread and systematic abuse by detainees in Iraq at the hands of British troops and evidence pointing to the criminal responsibility of senior civilian and military officials.

On 13 May 2014, the ICC re-opened its preliminary examination having received new information that they did not have in 2006 when the first preliminary examination was terminated.

The current preliminary examination focuses on alleged crimes committed by UK troops during the Iraq conflict and occupation from 2003 to 2009. The allegations of war crimes include torture, murder and other forms of ill treatment. The 2018 OTP Preliminary Examination Report includes war crimes against at least 61 victims in custody – rape, sexual violence, outrages upon personal dignity, inhuman treatment and torture. There are also allegations of deaths in detention. In terms of crimes committed during military operations, the Report mentions, acts of killing through air strikes and ground combat operations.

According to the OTP’s report, “… criminal proceedings have resulted in at least: one conviction at court martial (via guilty plea) for ill-treatment in the Baha Mousa incident.” Baha Mousa was a 26 year-old hotel receptionist who was arrested, deprived of food and water, forced to remain in stress positions, and severely beaten, all of which contributed to his death. His post-mortem revealed that he had 93 injuries, including a broken nose and fractured ribs. 

Seven British troops were charged with ill treatment and war crimes under the British ICC Act, only one pleaded guilty to inhuman treatment in 2006 and he, Corporal Donald Payne, was incarcerated for a year and dismissed from the army. He is the first British soldier to be found guilty of a war crime. The rest were cleared of the charges.

The Preliminary Examination Report goes on to mention that, four people were convicted of assault and that one IHAT referral resulted in a guilty plea from a person who beat an Iraqi civilian in a UK armed forces vehicle. The Report notes that there  “have been no convictions for killing, although there have been several trials for manslaughter resulting in acquittal.”

The OTP is due to release it next Preliminary Examination report at the annual Assembly of States Parties to be held during the first week of December this year, hopefully shedding light on progress made by all parties, domestic and international over the course of the year. 

Given that the ICC is a court of last resort, it can only pursue an investigation when the state in question (in this instance the UK) is unwilling or unable to genuinely pursue the matter. Some would say that the UK is taking all the necessary steps whilst others  are of the view that they are simply not doing enough. The ECCHR would agree with the latter, as they sent a follow-up communication to the OTP focusing on the “UK’s unwillingness to investigate.” and the fact that only low-level perpetrators have been subjected to scrutiny.

Should the OTP decide that the UK/Iraq case is admissible before the ICC then the UK could find itself the subject of an OTP investigation. If such a decision is reached it could have far-reaching implications. Whilst the OTP should remain focused on the business of following the evidence and the law, it is undeniable that a decision to investigate the UK could significantly impact the perception that the ICC only goes for “low hanging fruit” in the form of states perceived to be weaker. 

This could be particularly important after the poorly-reasoned judgement on Afghanistan from the ICC Pre-Trial Chamber II, denying the OTP’s request to open an investigation into Afghanistan despite an investigation being clearly warranted. Thankfully, the Afghanistan decision is going on appeal. All of this continues to affect the ICC-Africa dynamic, and may influence some African states in their decision to support, resist or abandon the ICC.

Whatever happens, it is clear that decisions made in the UK case will have serious implications for international criminal justice. “Panorama War Crimes Scandal Exposed” not only takes a closer look at cases that could be classified as war crimes but also details inconsistency in incident reports and conflicting testimony, reminding us that the story is more complex than we thought. This exposé and the critical work done by all the victims, lawyers, investigators and activists seeking accountability will continue to raise much needed-awareness, and keep the pressure on all the relevant institutions, (both domestic and international), to fulfil their mandates and deliver justice.

** This article first appeared on the Opinio Juris blog on 20 November 2019