Categorized | Conflict, Iraq, Terrorism, UK News, World

In Pursuit of Accountability for War Crimes in Iraq

What comes next as British Government targets lawyers and closes investigative body?

By Thomas Obel Hansen

International Criminal Court by OSeveno – Own work, CC BY-SA 4.0

This Article is based on research conducted under a British Academy grant involving interviews with relevant stakeholders. A more comprehensive academic article addressing the same topics is scheduled for publication later this year. 

An examination opened by the International Criminal Court (ICC) Prosecutor may be the last avenue for accountability for war crimes allegedly committed by British soldiers during the Iraq war. In June the British government closed an investigative body looking into the same crimes. This followed a backlash against lawyers in Britain which could have broader ramifications for the rule of law in the country and may further complicate the ICC’s examination. A democratic debate about the responses of the British government to crimes in Iraq – and the legal processes aimed at addressing them – has so far been largely absent.   

The ICC’s preliminary examination

In May 2014, Chief Prosecutor of the International Criminal Court (ICC) Fatou Bensouda announced that she had decided to re-open a preliminary examination into war crimes allegedly committed by British soldiers during the Iraq war and occupation.

Bensouda’s decision followed in the wake of a “devastating dossier” of evidence relating to allegations of hundreds of cases of torture and unlawful killings by British soldiers being provided to her office by Public Interest Lawyers (PIL) – a relatively small law firm based in Birmingham – together with the Berlin-based European Center for Constitutional and Human Rights (ECCHR).

PIL was shut down last summer after Britain’s Legal Aid Agency ended its contract with the company, and in February this year PIL’s lead lawyer, Phil Shiner, was struck off the bar following findings of misconduct relating to paying Iraqi middlemen to find claimants. With reference to Shiner’s misconduct, the government soon after closed the Iraq Historic Allegations Team (IHAT), the national body tasked with investigating claims of abuses in Iraq.

These events must be understood in light of a broader government campaign that appears to aim at avoiding accountability for crimes in Iraq, including pressure on the ICC to end its examination.

Government officials’ promotion of a narrative of ‘ambulance chasing lawyers’, said to profit from wrongly accusing soldiers of crimes, has come to the detriment of any real debate in Britain about accountability for crimes in Iraq.

Partly due to the closure of PIL and Shiner’s disbarment, ICC prosecutors have made only limited progress to date. Three years after it was opened, the preliminary examination – the term used for the phase where prosecutors decide if there is reasonable basis to proceed with a formal investigation – continues to focus on whether crimes that fall within the jurisdiction of the Court were likely committed.

This is surprising to some because the evidence submitted by PIL and ECCHR is quite substantial, involving allegations of torture and other forms of ill-treatment of a total of 1071 Iraqi detainees and 319 cases of unlawful killings. Several other sources similarly suggest there is, at least, a reasonable basis to believe that crimes within the jurisdiction of the ICC were committed in Iraq. This brings into question whether ICC prosecutors may be applying too high a threshold for determining whether there is a reasonable basis to believe that crimes were committed.

If ICC prosecutors are stepping rather carefully in this case, this may be partially explained by the UK’s international standing, diplomatic leverage and the country’s general support for the Court. Even if prosecutors say they apply the same standards to this examination as they apply to others, the strategies adopted by the British government appear to have impacted how this examination is proceeding.

Responses of the British government to the ICC’s examination

The British government has reacted to the re-opening of the ICC’s preliminary examination deploying a range of strategies which, taken together, suggest that it takes the ICC’s intervention – and more broadly the legal processes surrounding the alleged crimes in Iraq – quite seriously.

Government officials have stated their intention to cooperate with the Court – and have seemingly done so to date in all ways expected by ICC prosecutors. At the same time however the government has made it clear it believes the preliminary examination should be closed. In so arguing, British authorities cite three factors. First, they suggest that the Court lacks jurisdiction since crimes in Iraq were not committed on a large scale and were not systematic. Second, government officials have intimated that the situation would be inadmissible under the ICC’s so-called complementarity regime due to the existence of judicial processes in the UK which they argue adequately address crimes committed in Iraq. Finally, they claim that the information that the preliminary examination is based on is not credible.

Related to that last point, British authorities have targeted the lawyers involved in the legal processes aimed at advancing accountability for crimes in Iraq. Penny Mordaunt, the Minister for Armed Forces, went so far as to suggest to Britain’s Parliament that the “behaviour of parasitic law firms churning out spurious claims against our armed forces on an industrial scale is the enemy of justice and humanity”.

What is making British authorities so uncomfortable? 

That British authorities are uncomfortable with the ICC’s intervention is unsurprising because the allegations are that senior civil servants either authorized or condoned abuses in Iraq.

The submission made by ECCHR and PIL suggest that criminal responsibility “may attach all the way up the chain of command to the Chief of Defence Staff”, specifically naming former Defence Minister Adam Ingram and former Defence Secretary Geoff Hoon as being the most senior people responsible for the crimes on the basis that they “knew or consciously disregarded information about the abuse of Iraqi detainees by UK Services Personnel in Iraq”.

No ‘smoking gun’ has been presented to support these allegations. While British judges have established that some acts of torture and unlawful killings did take place in Iraq, they have not adequately examined whether they were systematic, nor have they addressed the possible responsibility of military and political leaders. However, in the Baha Mousa Inquiry, which concerned the beating to death of an Iraqi detainee, Sir William Gage found that there had been a “gradual loss of the doctrine” prohibiting the use of the so-called five techniques – involving hooding, white noise, food and drink deprivation, painful stress positions, and sleep deprivation – in guidelines on interrogation. Gage pointed to a “corporate failure” in the Ministry of Defence as among the causes.

In a rare example of former service personnel speaking out about the alleged abuses, Nicholas Mercer, who served as the most senior legal advisor to the British Army during the Iraq War, told this author that he personally witnessed detainees subject to conditions that breach the Geneva Conventions – and could therefore amount to crimes under the ICC’s jurisdiction – and reported this to the military leadership, but to no avail.

Crucially, Mercer also explains that he saw written instructions to interrogators allowing them to use some of the five techniques, specifically hooding and stress positions. The European Court of Human Rights has determined that these techniques – previously used by the British military in Northern Ireland – amount to inhuman and degrading treatment.

The Ministry of Defence denies there was any authorization of crimes in Iraq, and more generally argues that crimes committed were the result of a ‘few bad apples’. Yet, the Ministry has paid out compensation to hundreds of Iraqis in settlements of suits brought by British lawyers. This makes some question the government’s narrative that no systematic abuses took place in Iraq. As Mercer explained in an interview with this author, “anyone who has fought the Ministry of Defence knows that they don’t pay out for nothing … clearly this isn’t just one or two bad apples, as they have been characterised, this is on a fairly large and substantial scale”.

Complementarity and the closure of IHAT

Even if ICC prosecutors should find that some of the allegations brought by PIL and ECCHR are sufficiently substantiated, they will need to satisfy themselves that the so-called ‘gravity requirement’ is met. It was with reference to this requirement that former Chief Prosecutor Moreno-Ocampo decided in 2006 to close an examination into the same situation because he believed the allegations of UK abuses in Iraq were not numerous enough to warrant further action by the Court. However, the allegations brought by PIL and ECCHR are much more numerous than those available to Moreno-Ocampo, making it less likely ICC prosecutors will repeat that decision if they believe the material submitted by PIL and ECCHR is credible.

Should the examination proceed, this time round prosecutors are likely to focus on the ICC’s complementarity regime whereby the Court can only prosecute cases that national authorities are unable or unwilling to purse. If so, one key question will be whether the government’s recent decision to close IHAT could be taken as an indication of unwillingness.

IHAT, set up by the Ministry of Defence in March 2010 to investigate allegations of criminal conduct by British military personnel during operations in Iraq, originally aimed at satisfying Britain’s obligations under human rights law to investigate possible breaches of the right to life and the prohibition of torture. However, once ICC prosecutors opened the preliminary examination IHAT quickly came to be seen as a means to keep the ICC away. The obligations under human rights law and the ICC are however not identical. Unlike the case-by-case analysis endorsed by human rights law, ICC prosecutors would likely expect domestic processes to focus on systemic issues. While British government officials say IHAT has done so, some observers are sceptical.

What is more, IHAT investigations – costing well above 50 million Pounds – have largely failed to bring about accountability for war crimes in Iraq, raising serious questions as to how effective this mechanism is from a complementarity perspective. Despite having had thousands cases under some form of review, IHAT investigations have not led to a single prosecution for war crimes in Iraq. Ironically, the only criminal conviction resulting from IHAT’s work to date involves an IHAT investigator who falsely impersonated a police officer in the course of his inquiries. In his review of IHAT, Sir David Calvert-Smith emphasized that the investigations have been carried out by persons with “no experience of policing the Army and, although of course familiar with the other ordinary criminal offences, unfamiliar with the concept of a ‘war crime’”.

In all events, the British government closed down IHAT by end June 2017. This happened despite some government officials fearing this could make the ICC proceed to a formal investigation. In the words of the Attorney General, closing IHAT and assuming that the ICC would not proceed with an investigation was not “a risk worth taking”. However, the Commons Defence Sub-Committee had a different view. The committee recommended that IHAT be closed, in part because it was unconvinced that the ICC would “commit to investigate such a large case load which is based, to a great extent on discredited evidence”.

The committee labelled IHAT a “seemingly unstoppable self-perpetuating machine, deaf to the concerns of the armed forces, blind to their needs, and profligate with its own resources”, which had proven “unfit for purpose”. IHAT was never a popular enterprise among Britain’s pro-military establishment. As Bob Stewart, who sits on the Commons Defence Sub-Committee, so plainly puts it: “IHAT is irksome, irritating and upsetting for the Armed Forces”. In short, the political costs associated with keeping IHAT alive were seen to outweigh the risk that an ICC investigation will be opened.

With IHAT being terminated by the Ministry of Defence, Defence Secretary Michael Fallon announced that remaining cases were to be investigated by service police. But expected to number “around 20”, the caseload to be dealt with by the service police is significantly smaller than IHAT. In part this is because, as Mercer puts it, “anything that comes from PIL goes in the bin”. Even if this is the case it is not clear why the number of remaining cases will be as low as 20.

The narrative of ‘ambulance chasing lawyers’

To understand the rise and fall of IHAT, one needs to understand the rise and fall of PIL and its lead lawyer, Phil Shiner.

Shiner – who was named human rights lawyer of the year in 2004 – had for years worked vigorously on bringing justice to Iraqi victims. For many, he became synonymous with the pursuit of justice for wrongdoing in the Iraq war. The human rights community embraced Shiner for his passion and bravery. Many in the armed forces, the pro-military establishment and the right-wing press in turn despised him for pursuing the ‘boys in Iraq’.

PIL and Shiner quickly got in the spotlight and gained significant influence on the Iraq investigations, both through submissions to the ICC and by bringing thousands of allegations to IHAT. IHAT in turn depended on PIL for getting access to victims and witnesses. As the frustrations of the armed forces and its supporters grew over PIL and Shiner – often labelled ‘ambulance chasing lawyers’ and worse – so did their frustration with IHAT’s inability to simply close the cases.

Government officials took the unprecedented step of urging Britain’s Solicitors Regulation Authority to pursue Shiner and other British lawyers involved in the Iraq claims before the Solicitors Disciplinary Tribunal (SDT). Shiner’s admission to a number of counts of misconduct and subsequent SDT conviction relating to paying Iraqi middlemen to find claimants hammered the nail in the coffin of IHAT.

The government’s narrative – strongly supported by the tabloid press in Britain – quickly became that IHAT had to be closed because PIL had been closed. According to this narrative, the vast majority of cases before IHAT were spurious by virtue of Shiner’s misconduct (leaving aside the fact that one third of IHAT’s caseload had nothing to do with PIL).

In a sense, the government succeeded turning the narrative from one of justice for crimes in Iraq to one of justice for soldiers wrongly accused of misconduct. As Defence Secretary Michael Fallon stated after Shiner’s conviction: “Justice has finally been served after we took the unprecedented step of submitting evidence on his abuse of our legal system. Phil Shiner made soldiers’ lives a misery by pursuing false claims of torture and murder – now he should apologise.”

Even if some human rights organizations have rightly made a call for differentiating between Shiner’s wrongdoing and the credibility of the allegations he took forward, it seems clear that the government’s narrative following his conviction has not only intimidated lawyers in Britain but also to a considerable extent undermined the broader support for accountability for crimes in Iraq and potentially in other contexts. As Andreas Schüller of the ECCHR explained in an interview with this author: “This goes not only against two individual law firms, but against basically all lawyers doing this kind of work in the UK. And that’s highly problematic […]  if you try to stop representation of victims and so on at this level, that has a broader impact than on the Iraq war related cases”.

Some argue this is exactly what the government sought to achieve. Carla Ferstman, director of REDRESS, a London based organization working to promote the rights of victims of torture, suggested in an interview with this author that there was a “very deliberate” strategy to target lawyers involved in the processes, both to undermine the current accountability processes and to avoid lawyers pushing for new ones in the future.

Broader ramifications of the government’s campaign

It remains an open question to what extent the closure of PIL and Shiner’s disbarment from legal practice will impact the ICC’s preliminary examination. If nothing else, it will surely impact prosecutors’ assessment of the credibility of the lawyers who submitted the allegations to their office. It could also impact the evaluation of the evidence at hand, already because prosecutors’ ability to obtain clarifications from these lawyers is now more limited.

More broadly, the developments discussed in this article are likely to put ICC prosecutors on the defensive due to a perception that they need to counter the government’s narrative that the claims are all vexatious. Bethany Shiner – who formerly worked with PIL – told this author this has created “quite a bizarre situation” because she feels compelled to try to provide ICC prosecutors with counter-evidence.

Regardless of how ICC prosecutors will react to IHAT’s closure and the issues surrounding PIL’s closure and the proceedings against Phil Shiner, the government’s campaign against PIL and other law firms in the UK involved in legal processes addressing crimes in Iraq has proven highly ‘effective’. Not only did it largely change the narrative from one of justice for war crimes in Iraq to one of justice for soldiers wrongly accused by ‘ambulance chasing lawyers’, but it also appears to more broadly have created a climate where human rights lawyers could become excessively careful about challenging the armed forces. Prime Minister Theresa May’s statement during her Party’s conference in Birmingham in October 2016 will hardly encourage anyone to think otherwise: “We will never again — in any future conflict — let those activist left wing human rights lawyers harangue and harass the bravest of the brave, the men and women of our armed forces”.

Image courtesy of OSeveno

This article has been updated on 13 November 2017 to include a new briefing paper by the author, titled ‘Policy Choices, Dilemmas and Risks in the ICC’s Iraq-UK Preliminary Examination‘.

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About Thomas Obel Hansen

Dr Thomas Obel Hansen works as a lecturer of law with the Transitional Justice Institute at Ulster University. He has published widely on accountability, international law and human rights issues.

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