United Kingdom - Iraq - Torture

War crimes by UK forces in Iraq

ICC urged to finally investigate detainee abuse

Detainees at Battle Group Main Headquarters, Basra, August 2003 © Photo: Baha Mousa Public Inquiry (Crown copyright protection)
Detainees at Battle Group Main Headquarters, Basra, August 2003 © Photo: Baha Mousa Public Inquiry (Crown copyright protection)

United Kingdom - Iraq - Torture

War crimes by UK forces in Iraq

ICC urged to finally investigate detainee abuse

On 31 July 2019, ECCHR filed a follow-up submission to the International Criminal Court (ICC) in The Hague concerning war crimes by UK forces in Iraq from 2003 to 2008. ECCHR is calling upon the Court to finally commence a formal investigation.

With its latest submission, ECCHR argues that the UK has to date entirely failed to address the extent to which the abuse was the result of systemic issues as well as to investigate or prosecute those most responsible for the crimes. Domestic proceedings have led to a handful of prosecutions against lower-level soldiers only.

Case

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; 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 those senior officials responsible for the abuses. Because there are no prospects of genuine accountability in the UK for the systematic abuse, ECCHR is calling on the ICC to open a formal investigation.

Context

In 2014, the ICC's Office of the Prosecutor (OTP) opened a preliminary examination into British war crimes in Iraq after ECCHR and the organization Public Interest Lawyers submitted a dossier of evidence of the widespread and systematic abuse of hundreds of detainees by UK armed forces personnel.

In 2017, the OTP then confirmed that there is a reasonable basis to believe that members of UK forces committed war crimes in Iraq – including wilful killing/murder, torture and inhuman/cruel treatment.

Background

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.

  • 31 July 2019: ECCHR submits a follow-up communication to ICC's Office of the Prosecutor (OTP) with a focus on the UK's unwillingness to investigate.
  • 4 December 2017: The OTP announces it is progressing to the next stage in its preliminary examination, having concluded that there is a reasonable basis to believe that members of the UK armed forces committed war crimes against persons in their custody in the context of the armed conflicts in Iraq, including wilful killing/murder, torture and inhuman/cruel treatment, outrages upon personal dignity and rape or other forms of sexual violence.
  • 1 September 2017: ECCHR submits a follow-up communication to OTP with a focus on subject matter jurisdiction, i.e. the grounds for a reasonable basis to believe that war crimes were committed by members of the UK armed forces.
  • 29 June 2017: ECCHR submits a follow-up communication to OTP on, inter alia, the UK's efforts to discredit war crimes allegations and shield perpetrators from prosecution.
  • 13 May 2014: ICC's Prosecutor announces she is reopening the preliminary investigation into the situation in Iraq following the filing of a communication by ECCHR and Public Interest Lawyers
  • 10 January 2014: ECCHR and Public Interest Lawyers submit a communication to the OTP detailing war crimes by UK forces in Iraq and setting out the evidence for the criminal responsibility of senior military and civilian officials.
  • 9 February 2006: The OTP, having received over 240 communications concerning the war in Iraq decides that although there is a reasonable basis to believe that war crimes had been committed by UK forces in Iraq, it would not seek authorization to open an investigation. The OTP notes that this decision could be reconsidered in the future in the light of new facts or evidence. 

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.

The Office of the Prosecutor at the International Criminal Court is currently undertaking a preliminary examination into war crimes by members of the UK armed forces in Iraq. These crimes could be the subject of a formal investigation and, depending on the result of that investigation, UK nationals could subsequently be charged and put on trial in The Hague.

The Office of the Prosecutor (OTP) will decide whether to seek authorization of the Pre-Trial Chamber to open an investigation. At the investigation stage, the OTP will be able to formally collect evidence, e.g. by questioning witnesses and suspects and by securing video material as well as documentary evidence.

Related Topics

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glossary

The International Criminal Court deals with core international crimes such as war crimes.
The principle of complementarity forms the basis of the relationship between the International Criminal Court and national courts.
War crimes are serious breaches of international humanitarian law committed in armed conflict.
A preliminary examination is the process by which the International Criminal Court's Office of the Prosecutor decides whether or not to open an investigation into a situation.