The Iraq Inquiry Report (2009-2016) documents how Tony Blair committed Great Britain to war early in 2002, lying to the United Nations, to Parliament, and to the British people, in order to follow George Bush, who had planned an aggression on Iraq well before September 2001.
Australian Prime Minister John Howard conspired with both reckless adventurers, purported ‘to advise’ both buccaneers, sent troops to Iraq before the war started, then lied to Parliament and to the Australian people. He continues to do so.
Should he and his cabal be charged with war crimes? This, and more, is investigated by Dr George Venturini in this outstanding series.
The bloody cost and legacy of the invasion (continued)
Some of Britain’s most senior military and political figures came a step closer to facing a war crimes inquiry in May 2014, as the International Criminal Court announced that it would make a “preliminary examination” into claims of “systemic” abuse by British forces in Iraq.
The ground-breaking decision by the I.C.C. Prosecutor came in response to a detailed dossier presented to the I.C.C. in January. New evidence presented in the dossier, revealed exclusively in The Independent earlier in the year, included allegations of electrocution, mock executions, beatings, and sexual assault.
General Sir Peter Wall, the head of the British Army, former Defence Secretary Geoff Hoon, and former Defence Minister Adam Ingram, were among those named in the evidence submitted by Public Interest Lawyers, which incidentally stopped offering legal services and/or advice on 31 August 2016, and the European Center for Constitutional and Human Rights, E.C.C.H.R., an independent, non-profit legal organisation which enforces human rights by holding state and non-state actors responsible for abuses through innovative strategic litigation. More than 400 individual cases were cited, representing “thousands of allegations of mistreatment amounting to war crimes of torture or cruel, inhuman or degrading treatment.”
In a statement on its website, the I.C.C. announced: “The new information received by the Office alleges the responsibility of officials of the United Kingdom for war crimes involving systematic detainee abuse in Iraq from 2003 until 2008.” The I.C.C. is to look in detail at the evidence to “ultimately determine whether there is a reasonable basis to proceed with an investigation.” Professor William Schabas, an expert on human rights law, based at Middlesex University, said: “This is a very positive development. It shows the matter is being taken very seriously in The Hague.”
He said that the likes of Mr. Hoon, Mr. Ingram and Sir Peter Wall “should be very worried” and “can’t assume that, because they are important people in the British establishment, that they are immune from the reach of the law.”
Cori Crider, strategy director of Reprieve, said: “Today’s announcement by the ICC should put the UK and other rich democracies on notice: fail to account properly for war crimes or torture and you could find your officials in the dock at the Hague one day.”
The head of the British Army, Sir Peter Wall, is named in the dossier submitted to the I.C.C.
But in a statement on 13 May 2014, Attorney General Dominic Grieve said the Government “completely rejects” claims that British forces had been responsible for systemic abuse and pledged to do “whatever is necessary” to show any allegations were being dealt with within the British justice system. He described British soldiers as “some of the best in the world” and said “the vast majority” of the armed forces “operate to the highest standards, in line with both domestic and international law.” Mr. Grieve added: “I will provide the office of the prosecutor with whatever is necessary to demonstrate that British justice is following its proper course.”
The Ministry of Defence did not respond to a request for comment, but General Lord Dannatt, former chief of defence staff, told The Independent: “I fully support the principle that where credible accusations of misconduct by British soldiers are made then they should be investigated and the due process of law be applied to anyone proven to have done wrong.”
He added: “There have been isolated cases of misconduct in Iraq – the Baha Musa case was one example – but I am deeply sceptical that allegations of widespread misconduct and abuse will be upheld. I suspect mischief on the part of those seeking compensation.”
However, Clive Baldwin, senior legal advisor for Human Rights Watch, said: “The British military justice system has failed for a decade to properly investigate criminal responsibility in the hundreds of allegations of war crimes in Iraq, especially of senior military and political commanders.” He welcomed the I.C.C.’s decision and said it “should be taken as a final warning by the UK authorities that they need to ensure proper independent criminal investigations, including of senior military and political commanders now.”
Phil Shiner, of Public Interest Lawyers, said: “This is an unprecedented and extremely important breakthrough in a 10 year struggle for accountability for the criminality that was the UK’s detention and interrogation policies in Iraq. The prosecutor has recognised that the gravity threshold has been crossed and that accordingly she must investigate thoroughly whether war crimes have been committed under article 8 of the ICC statute, and if so who was responsible, in particular at the top of the chain of command including: politicians, senior civil servants, lawyers, Chief of Defence Staff and Chief of Defence Intelligence.”
Carla Ferstman, director of human rights charity Redress, said: “Until justice is done and seen to be done in all outstanding detainee abuse cases, the ICC most certainly has grounds to pursue allegations of systematic detainee abuse by UK troops in Iraq. The ICC has jurisdiction if a country is unable or unwilling to investigate or prosecute. To date, the UK has failed to mount credible prosecutions which reflect the extent and gravity of the abuse allegations. In the notorious case of Baha Mousa, a hotel worker who was effectively tortured to death, a court martial judge blamed the weak evidence on a ‘more or less obvious closing of the ranks’, which prevented all the perpetrators who administered the blows from being identified. Criminal justice is not an optional policy objective but a clear obligation. We hope the renewed interest by the ICC Prosecutor will help ensure that justice is achieved, for the sake of the victims and for the sake of the rule of law.”
Labour MP Madeleine Moon, a member of the Commons Defence Select Committee, said: “If the ICC has genuine concerns then they must be investigated and I am pleased to see the Attorney General offering to provide all of the information needed by the Court. There is always the risk that the actions of a few, as we saw in the recent Camp bastion trophy photographs, can besmirch the reputation of the many fine disciplined personnel in our armed forces. The suggestion of ‘systemic abuse’ is alarming and one I find difficult to imagine.”
The I.C.C. has previously admitted that there was a “reasonable basis to believe that crimes within the jurisdiction of the court had been committed, namely wilful killing and inhuman treatment” by British forces in Iraq. Yet at that time, in 2006, prosecutors cited the low number of cases as a reason for not mounting an investigation. The years since have seen hundreds of cases emerge, and the decision marks another step along a process which could result in British politicians and generals being put in the dock on war-crimes charges, if the I.C.C. finds sufficient evidence to warrant an investigation under Article 15 of the Rome Statute. (J. Owen, Iraq inquiry: International Criminal Court will investigate ‘abuse’ by UK troops, the Independent, 14 May 2014).
The Iraq Inquiry Report contains much information about British troops and their behaviour during the invasion. It details failures starting with the exaggerated threat posed by Saddam Hussein through the disastrous lack of post-invasion planning. However, what is missing in the Report is any reference to alleged systematic abuse by British soldiers, despite the fact that many accusations have been and are presently being considered by a domestic investigative body as well as the International Criminal Court.
The claims relate to offences committed against Iraqis held in detention by British soldiers between 2003 and 2008. On the basis of a dossier outlining numerous incidents, the I.C.C. Prosecutor Fatou Bensouda in 2014 reopened a preliminary examination into abuse allegations. The same examination, a step below an official investigation that could yield court cases at The Hague, was initially closed in 2006 for lack of evidence.
Submitted to the Court by the firm of Public Interest Lawyers and the Berlin-based European Center for Constitutional and Human Rights, the original communication were followed up by a second batch of cases in September 2015. By November 2015, the I.C.C. reported that it had received 1,268 allegations of ill treatment and unlawful killings committed by British forces. Of 259 alleged killings, 47 were said to have occurred when Iraqis were in U.K. custody.
Both Public Interest Lawyers and Leigh Day, a separate law firm, which has helped plaintiffs bring hundreds of parallel civil cases, have a long and tangled history with the British government. They face ongoing criticism for employing agents in Iraq to gather clients in the country and have them sign witness statements, and have been confronted with possible penalties for alleged improprieties during previous British inquiries.
According to a December 2015 Freedom of Information release, the United Kingdom government has already settled 323 cases, totalling some 19.6 million pounds. On the ground of confidentiality, the British government found itself unable to present further information.
“The [Ministry of Defence] doesn’t settle unless there’s good cause – that’s the fairest assumption.” said Andrew Williams, professor of law at the University of Warwick. “One would think that with almost 20 million pounds and 300 cases you are settling some significant allegations.”
Professor Warwick is the author of an account of the killing of Baha Mousa, an Iraqi hotel receptionist who died while in the custody of British soldiers in September 2003. That case led to the sole prison sentence handed to a British soldier for war crimes during the occupation of Iraq. Skirting charges of manslaughter, Cpl. Donald Payne pleaded guilty to the inhumane treatment of Mousa – who suffered 93 injuries while in custody before his death – and served just one year in prison. All other members of the British military tied to the case were acquitted.
Domestically, an investigative mechanism called the Iraq Historic Allegations Team has fielded 3,363 cases since it was founded in 2010, including 325 which involved unlawful killings. According to recent figures obtained by The Guardian, a further 1,343 stem from allegations of ill treatment. Public Interest Lawyers said that all the cases sent to the I.C.C. had also been provided to I.H.A.T.
In a rare interview, given to The Independent in early January 2016, the investigative unit’s chief, Mark Warwick, said that his team was reviewing “serious allegations,” including homicide, “where I feel there is significant evidence to be obtained to put a strong case before the Service Prosecuting Authority to prosecute and charge.”
But it remains unclear how long those investigations will take, or how many British nationals may eventually face charges. A more important question, said Clive Baldwin, senior legal analyst at Human Rights Watch, is whether high-ranking officials will face charges. To his knowledge, no senior British politician or military officer has been put on trial for the crimes of their subordinates since 1651.
“Commanders who know or should have known and failed to take measures to prevent abuses can be criminally liable.” said Baldwin. “None of the criminal investigations in the UK have attempted to address this.”
The Iraq Inquiry decided it was unequipped to tackle individual cases of abuse. The inquiry wrote that it “did consider whether it might examine systemic issues related to the detention of military and civilian prisoners” but ruled against that in light of continuing “inquiries and investigations.”
“Government will consider its findings carefully, and there will be a chance to study and debate the findings in depth.” the Ministry of Defense said in a statement. “We will ensure that lessons are learnt and acted on.”
It was precisely that systemic nature that human rights officials fear could be brushed under the rug, as it has been historically. On 18 November 2015, shortly after the I.C.C. released its annual report on preliminary examinations, Ms. Catherine Adams, the legal director at the U.K.’s Foreign and Commonwealth Office, told a meeting of I.C.C. member states that the British government “rejects the allegations that there was any systemic abuse by British forces in Iraq.”
The I.C.C. prosecutor, has said that she would consider the contents of the report, as well as the results of the Iraq Historic Allegations Team. In line with its mandate, if domestic accountability measures are determined to be lacking, the I.C.C. could begin an official investigation. But that has always been seen as a distant possibility for powerful ‘western’ countries like the U.K.; in its history, the Court has never brought charges against any individual outside of Africa. The I.C.C. has no jurisdiction over American abuses committed in Iraq, as neither the U.S. nor Iraq is a member. The United Kingdom is, however.
On 4 July 2016 Prosecutor Bensouda issued a statement in response to a Telegraph article which claimed that only members of the British armed force – and not former Prime Minister Blair – could be prosecuted for war crimes. That interpretation was “inaccurate” said the Prosecutor. While the Court does not yet have jurisdiction over “the crime of aggression” and “the specific question of the legality of the decision to use of force in Iraq in 2003,” it does have remit over war crimes, crimes against humanity, and genocide, she wrote. She also refused to rule out prosecuting anyone, including Blair, for such violations.
Tomorrow: The bloody cost and legacy of the invasion (continued)
Dr. Venturino Giorgio Venturini – ‘George’ devoted some sixty years to study, practice, teach, write and administer law at different places in four continents. In 1975, invited by Attorney-General Lionel Keith Murphy, Q.C., he left a law chair in Chicago to join the Trade Practices Commission in Canberra – to serve the Whitlam Government. In time he witnessed the administration of a law of prohibition as a law of abuse, and documented it in Malpractice, antitrust as an Australian poshlost (Sydney 1980). He may be reached at George.Venturini@bigpond.com.