After more than six years, the International Criminal Court in The Hague closed its preliminary examination of war crimes by UK forces in Iraq. The decision from December 2020 reveals systematic failures of international justice and proves, once again, that powerful actors can get away with torture.
ECCHR argued in several submissions to the ICC that the UK has, to date, entirely failed to address the extent to which its forces’ abuse of detainees in Iraq was systemic and that the state failed to investigate or prosecute those most responsible for these crimes. In closing its preliminary examination, the ICC refuses to close the impunity gap, despite finding that war crimes were committed by British soldiers.
Hundreds of Iraqis who were detained during the Iraq war have described abuse at the hands of UK forces. Their testimonies show a pattern of violent beatings, sleep and sensory deprivation, “stress positions,” deprivation of food and water, sexual and religious humiliation, and, in some cases, sexual abuse.
Some survivors of abuse have been awarded compensation after litigation in the UK High Court and hundreds of Iraqis have agreed out-of-court settlements with the Ministry of Defence. But to date, there have been no investigations in the UK examining the potential criminal liability of the senior officials responsible for the abuse. Because there are no prospects for genuine accountability in the UK for the systematic war crimes committed by UK forces in Iraq, ECCHR had called on the ICC to open a formal investigation.
In 2014, the ICC’s Office of the Prosecutor opened a preliminary examination into British war crimes in Iraq after ECCHR and Public Interest Lawyers submitted a dossier of evidence of the widespread and systematic abuse of hundreds of detainees by UK armed forces in Iraq between 2003 and 2008.
In 2017, after two other ECCHR submissions, the OTP confirmed that there was a reasonable basis to believe that members of UK forces committed war crimes in Iraq – including willful killing, torture, inhuman/cruel treatment, outrages upon personal dignity, and rape and/or other forms of sexual violence.
ECCHR filed a follow-up submission in 2019, focusing of the failures by the UK to prosecute torture cases domestically. Nevertheless, in December 2020, the ICC’s OTP decided to close the preliminary examination.
Read about the legal background of the ICC submissions.
The use of “stress positions,” sleep deprivation, sensory deprivation (including hooding), food and water deprivation as well as beating and other forms of abuse have been used by British forces and intelligence services as part of counter-insurgency and interrogation efforts for decades, from Malaya and Kenya to Aden and Northern Ireland. These techniques are often applied in combination and will in many cases reach the level of torture under international law. Subjecting detainees to such techniques is prohibited by the Geneva Conventions as well as the European Convention on Human Rights. They also represent war crimes under the Rome Statute of the International Criminal Court.
Available evidence suggests that the responsibility for the widespread abuse of detainees by UK forces in Iraq from 2003 extends up the chain of command to several of the military and civilian superiors who oversaw the arrest, detention and interrogation of Iraqis.
With its work on this case, ECCHR aims to help obtain justice for Iraqis who were subjected to abuse in UK detention in Iraq from 2003 to 2008. We also aim to challenge the impunity enjoyed by those ultimately responsible for these widespread war crimes, namely individuals who held senior positions in the British Army and Ministry of Defence. Criminal investigations and proceedings at the International Criminal Court would represent an acknowledgement that war crimes were committed by UK forces and send a clear message that such crimes should not and will not go unpunished.
ECCHR works to challenge double standards in the application of international law. International crimes such as torture are subject to an absolute prohibition under various conventions including the Geneva Convention and the UN Convention against Torture. These laws must be enforced, including in cases of violations by powerful states. With this work ECCHR seeks to uphold and enforce the absolute prohibition of torture all over the world.
The International Criminal Court can investigate and prosecute what are known as core crimes under international criminal law, including genocide, crimes against humanity and war crimes. It is a court of last resort, i.e. it can only take action in the absence of genuine national proceedings.
The UK ratified the Rome Statute of the International Criminal Court in 2001. The ICC therefore has jurisdiction over war crimes, crimes against humanity and genocide committed by UK nationals or on the territory of the United Kingdom as of 1 July 2002, the date of the entry into force of the Rome Statute.
The UK has to date failed to conduct any genuine investigations examining those bearing the greatest responsibility for war crimes in Iraq, i.e. senior military and civilian officials who oversaw, ordered or tolerated war crimes. As such, it falls to the International Criminal Court to ensure that the crimes do not go unpunished.
The legality of the decision to go to war in Iraq does not fall within the jurisdiction of the International Criminal Court. The amendment to the Rome Statute concerning the crime of aggression came into force on 17 July 2018. This crime relates to the planning, preparation, initiation or execution of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the UN Charter. This amendment, which the UK has yet to ratify, does not apply retroactively.
In December 2020, the ICC’s Office of the Prosecutor decided to close its preliminary examination. The decision is based on the requirement in the ICC Rome Statute that a case is only admissible if a state is unable or unwilling to prosecute. The test for unwillingness must determine if a state intentionally shields perpetrators from prosecution. The OTP did not find sufficient evidence to prove such shielding by UK judicial authorities and thus closed the situation. However, the OTP confirmed the war crimes allegations made in ECCHR’s submissions and harshly criticized the overall domestic investigations, prosecutions and attacks on lawyers representing Iraqi victims. The OTP announced the possibility of reopening investigations should certain information come to light that would enable them to prove the UK is unable or unwilling to prosecute.