Ten years after the UK joined in the invasion of Iraq, the repercussions continue to hit at the heart of the establishment. This week a law firm and a leading international justice organisation jointly sent a 250-page submission to the International Criminal Court, asking the prosecutor to open an investigation into alleged war crimes by UK nationals in Iraq, including the possible responsibility of senior military and political figures. William Hague dismissed the move, saying the British armed forces are the “finest in the world”. But recent history shows that at the very least the British are failing to practice what they preach to the rest of the world about holding senior figures accountable for war crimes.
We still do not know the extent of the abuses that took place in the six years British forces were in southern Iraq. The ICC prosecutor’s office in 2006 declined to open an investigation, finding that the small number of UK war crimes alleged at that time were insufficient for the ICC to take action. But last year the English High Court said it had received about 150 cases alleging unlawful deaths by British forces, and more than 700 allegations of torture or inhuman or degrading treatment of Iraqis. If true, most or all could be war crimes.
But both the current coalition government and its Labour predecessor have fought tooth and nail to prevent public inquiries into these abuses, meaning we still do not know what happened and who knew. The government has in recent years effectively acknowledged many abuses by agreeing to financial settlements with victims or their families, but on the condition they stay silent. Only after years of tenacious litigation, using the Human Rights Act, was the government forced to concede two public inquiries, most notably concerning Baha Mousa, a hotel receptionist who the inquiry found died in British custody after days of serious abuse.
What is clear is that the British military justice system has not shown itself fit for purpose to deal with war crimes committed outside the UK. Even in the Baha Mousa case, only one person, a corporal, was convicted after pleading guilty to the war crime of inhumane treatment, and served one year in prison. A court martial threw out cases against other soldiers at the base during the abuse and, even after the public inquiry confirmed the abuse, there do not appear to have been any significant moves to reopen criminal investigations into others implicated in the killing. The government eventually set up an ‘Iraq Historic Allegations Team’, but the High Court ruled last year that it was not capable of dealing with criminal investigations promptly and effectively.
In particular the UK authorities appear to have failed to consider (or just plain ignored) one of the basic principles of international criminal law, that of command responsibility. This is set out in the statute of the International Criminal Court, and was incorporated into UK law in 2001, so it applies to what happened in Iraq. The principle holds military commanders criminally liable for war crimes committed by their subordinates when they were aware or should have been aware that crimes were being committed or were about to be committed, and failed to take all necessary and reasonable measures to prevent or end the crimes. This criminal responsibility also applies to civilian officials who have command over forces that commit war crimes (there the test is whether they knew or 'consciously disregarded information' that their subordinates were about to commit war crimes).
This does not require the commanders to actually have ordered the crimes, it does not require the crimes to be systematic, but it does apply in situations in which war crimes continue and commanders do little or nothing to stop them. Despite the evidence suggesting that war crimes connected with British detention continued for years in Iraq, that reports of abuse by the International Committee of the Red Cross reached the desks of ministers and senior military commanders, no criminal investigation, yet alone prosecution, has taken place.
A key problem is that decisions over British military and civilian criminal investigations and prosecutions are not taken independent of senior military and political figures. Even though a civilian now heads the UK’s military prosecution system, military criminal investigations are still conducted by forces within the chain of command. England’s Attorney General, himself a politician and member of the government, would need to approve the prosecution of any politician.
The basic problem may be simply a matter of history and will. As Ian Cobain and others have shown, historically, when faced with evidence of torture by its armed forces overseas, the British establishment’s knee-jerk response has been first to deny such abuses, and then to blame them on a few 'bad apples'. Senior figures have never been held criminally responsible. The last English military commander who was criminally punished for abuses committed by his troops appears to have been the Earl of Derby in 1651, whose army massacred the inhabitants of Bolton during the English Civil War.
The submission to the ICC highlights the British authorities’ failure for over a decade to investigate and prosecute these alleged war crimes, including the command responsibility of its senior military and political figures. This failure is in sorry contrast to the UK’s stated commitment to justice elsewhere, as in its strong and important support for ICC action in Syria. It’s high time the authorities reverse course and take action to ensure justice.
Clive Baldwin is senior legal advisor at Human Rights Watch. Follow him on Twitter @cliveabaldwin