The opening of a formal investigation into UK forces is now one step closer as prosecutors at the International Criminal Court in The Hague progress to the next phase of their preliminary examination into war crimes committed by UK forces in Iraq. On 4 December 2017, the Court’s Office of the Prosecutor (OTP) announced that it sees a reasonable basis to believe that members of the UK armed forces committed war crimes against detainees in Iraq. Prosecutors in The Hague will now move to what it refers to as Phase 3 of the proceedings, examining issues of gravity and complementarity. The complementarity assessment will consider whether genuine investigations and prosecutions are being conducted in the UK.
Over 400 Iraqi former detainees have brought allegations to ECCHR's former partner organization Public Interest Lawyers (PIL) of grave mistreatment committed during the five years which the UK and Multinational Forces operated in Iraq, from 2003 to 2008. Together, ECCHR and PIL chose 85 representative cases for analysis within their communication to the ICC. That submission details how techniques including physical assault, hooding, electric shocks, stress positions, deprivation of food, water and sleep, and sexual humiliation were used against detainees. The submission presents the 85 sample cases along with extensive corroborative evidence including from independent inquiries in the UK and the International Committee of the Red Cross.
In 2006, the OTP of the ICC declined to open a formal investigation into UK military abuses in Iraq. After preliminary fact-finding it concluded that there was a reasonable basis to believe that the war crimes of willful killing and inhuman treatment had been committed by UK forces in Iraq, but that the cases at hand were not of sufficient gravity to justify a formal investigation. At that time, the OTP found quantitative criteria to be the key consideration and assumed only four to twelve victims of willful killing and a limited number of victims of inhumane treatment, "totaling in all less than 20 persons." However, the OTP explicitly stated that its decision not to investigate could be reconsidered in light of new information.
The ICC Prosecutor opened a preliminary examination of the situation in May 2014 following a communication from ECCHR and Public Interest Lawyers (PIL) in January 2014. It is clear that an investigation by the OTP is not only proper, but compelling. Hundreds of abuse allegations, in several locations over several years, indicate that the UK military had a sustained policy of committing abuse against Iraqi detainees in order to prepare them for interrogation. This alone warrants the ICC to intervene. Furthermore, proceedings within the UK have been inadequate. UK officials have been all too reluctant to prosecute or investigate the high ranking officials for the systemic abuses committed in Iraq. As such, the Office of the Prosecutor of the ICC must now begin an investigation into war crimes committed against Iraqi detainees by the UK, in order to identify and hold accountable those most responsible for these crimes.