Backgrounder: Preliminary Examination into Abuses by United Kingdom Personnel in Iraq

As we reported earlier, the ICC Office of the Prosecutor has reopened the preliminary examination into crimes committed by United Kingdom personnel in Iraq from 2003-2008  during Operation Iraqi Freedom. As with the Ukraine preliminary examination, the purpose of this process is to determine whether there is a reasonable basis to proceed with a full-scale investigation, which would trigger the United Kingdom’s obligations to cooperate with the Court according to Part IX of the Statute.

Preliminary Examinations Generally

By way of background: On an ongoing basis, Article 15 of the ICC Statute invites states, non-governmental organizations, the United Nations, and other concerned entities to submit information regarding the commission of crimes within the jurisdiction of the ICC to the Prosecutor, Fatou Bensouda.  Over the years, the Office of the Prosecutor (OTP) has received a number of communications containing allegations that British troops committed crimes within the jurisdiction of the Court. The preliminary examination, which proceeds according to Article 53 of the Statute, will seek to confirm and supplement this information with an analysis of open source material, including media, governmental and non-governmental reports, judicial records, etc. The OTP will also produce a crime analysis (e.g., consisting of tables of allegations, pattern analysis, and a consideration of the elements of relevant crimes). The process over overseen by the OTP’s Executive Committee, which consists of the Prosecutor and the heads of the OTP‘s divisions (Investigations; Jurisdiction, Complementarity & Complementarity (JCCD); and Prosecution).

It is important to note that in order to move to a formal investigation, the situation in Iraq would still need to be referred to the Court (by a State Party or the Security Council) or the Prosecutor would have to decide to initiate an investigation proprio motu (on her own motion). (Article 13 of the ICC Statute enumerates these three trigger mechanisms). Although most of the state referrals before the Court are self-referrals, any State Party could refer the situation in Iraq to the Court if so inclined. Thus, the Union of the Comoros referred the situation involving crimes allegedly committed by Israel on its own territory (the flagship MV Mavi Marmara) to the Court, but included within the referral the situation on the territory of other states parties whose flagships were also involved in the Gaza Freedom Flotilla (Cambodia and Greece). Unlike a State Party or Security Council referral, opening a proprio motu investigation requires approval from a Pre-Trial Chamber.

A preliminary examination involves four phases of analysis. The first is a simple filter to weed out manifestly inappropriate matters. The second concerns jurisdiction, including temporal, personal, and subject matter jurisdiction. The third involves admissibility, which has two components: gravity and complementarity. The fourth phase concerns the interests of justice and involves a set of countervailing considerations that might counsel against going forward even if the matter would be within the Court’s jurisdiction and admissible.  So far, no preliminary examination has made it to the fourth phase.

Assuming its jurisdiction is properly triggered, the Court can examine the conduct of States Parties involved in the conflict in Iraq. The Court does not, however, have jurisdiction over the legality of the conflict in Iraq itself. Eventually, the Court may have jurisdiction over the crime of aggression, but not until the States Parties decide to activate amendments to the Statute defining the crime of aggression and setting out the applicable jurisdictional regime. The earliest this would happen is 2017, so long as 30 states have ratified the amendments (the current count is 14).

The Original 2006 Iraq Preliminary Examination

A prior preliminary examination into the situation in Iraq was closed in 2006 in the third phase of analysis in part on the basis of a finding that while crimes within the jurisdiction of the Court may have been committed by U.K. personnel, the crimes alleged did not satisfy the element of gravity.  At that time, the OTP had received information relating to civilian deaths and injuries (including allegations regarding the use of cluster munitions), as well as claims of custodial abuses and injury to civilians during occupation policing operations. In his letter announcing the closure of the first preliminary examination, then-Prosecutor Luis Moreno Ocampo found presumptive personal jurisdiction over British troops due to the United Kingdom’s ratification of the ICC Statute. Although he had evidence of civilian deaths, he concluded that the available information did not indicate the commission of intentional attacks on civilians or the use of excessive force in relation to the military advantage to be gained.  The United Kingdom apparently provided a “detailed response” to the allegations. In particular, the OTP noted that:

Publicly available information from the UK states that: lists of potential targets were identified in advance; commanders had legal advice available to them at all times and were aware of the need to comply with international humanitarian law, including the principles of proportionality; detailed computer modeling was used in assessing targets; political, legal and military oversight was established for target approval; and real-time targeting information, including collateral damage assessment, was passed back to headquarters. … According to the UK Ministry of Defence, nearly 85% of weapons released by UK aircraft were precision-guided, a figure which would tend to corroborate effort to minimize casualties.

In any case, the Prosecutor observed that

The available information suggests that most of the military activities were carried out by non-States Parties. As one example of available information, the reports of Coalition parties converged in indicating that 94-96% of air sorties were carried out by non-States Parties.

With respect to alleged custodial abuses and wilful killings, by contrast, the Prosecutor concluded that there was a reasonable basis to believe that crimes within the jurisdiction of the Court had been committed (namely, the wilful killing and inhuman treatment of 4 – 20 individuals).  He determined, however, that the required gravity threshold was not met, particularly as compared with other situations before the Court. Article 8(1) indicates that the Court should focus on war crimes

 in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.

In Moreno Ocampo’s estimation, these threshold criteria were not satisfied with the material then available. Although he did not publish any conclusions on complementarity, Moreno Ocampo did note that

[N]ational proceedings had been initiated with respect to each of the relevant incidents.

The Renewed Iraq Preliminary Examination

In closing the original preliminary examination, Moreno Ocampo noted that his actions were without prejudice to new information that might later come to light. With the re-opening of the preliminary examination, it is apparent that new facts and evidence of potential abuses by U.K. personnel have indeed emerged. In particular, the European Center for Constitutional and Human Rights (ECCHR) and the Birmingham-based Public Interest Lawyers (PIL), which represents over 800 Iraqi detainees and their families, submitted a report to the OTP in January 2014. The ECCHR/PIL report, an anonymized version of which is available here, concludes:

[T]hese victims make thousands of allegations of mistreatment amounting to war crimes of torture, or cruel, inhuman or degrading treatment, as well as wilfully causing great suffering, or serious injury. The scale in numbers of Iraqi victims of war crimes under UK custody and in the geographical and temporal scope of the use of illegal methods of detention and interrogation is significantly larger than had been anticipated in 2006 by the OTP. Clear patterns emerge of the same techniques being used for the same purposes in a variety of different UK facilities, over the whole period that UK Services Personnel were in Iraq, from 2003 to 2008. Available evidence suggests that failures to follow-up on or ensure accountability for ending such practices became a cause of further abuse. The obvious conclusion is that such mistreatment was systematic and had a systemic cause, which further suggests that there are hundreds more such victims. …

[A]t all levels of the justice system, the UK has failed to reach the standards required to displace the ability of the ICC to act in these matters. Not only have the investigations and prosecutions been few and far between – a quantitative failing – but where action has been taken, the quality and independence of the process has been significantly lacking. Most importantly, these efforts have, without fail, looked only at those at the bottom of the chain of command, and have systematically shielded from prosecution those bearing the greatest responsibility for the crimes, thereby enabling the persistence of impunity instead of securing criminal accountability.

On the basis of this material and whatever else it has received, the OTP noted:

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 use of the term “systemic” implicates the war crimes threshold in Article 8(1) and reveals that the current allegations are of a different order than the prior information that had been received. The U.K. Attorney General’s office posted a statement in response to the OTP’s announcement denying the allegations of systemic abuse and putting its weight behind the complementarity bar to the Prosecutor proceeding with a full investigation. In particular, Attorney General Dominic Grieve stated that

I have seen the work of these inquiry teams myself and they are independent, robust and meticulous, with the resources they need to do the job properly and it is my job to make sure that continues to be the case.

The reference to “inquiry teams” invokes the Iraq History Allegations Team (IHAT), which has been charged with reviewing allegations of abuse by U.K. armed forces personnel in Iraq from 2003-9. Although the 145-member IHAT is independent of the military chain of command, it has faced a number of legal challenges to its independence, including claims by a whistleblower that it is little more than a “whitewash.” As of November 2013, it was examining 144 case files detailing allegations of abuse, almost all of which involve complaints of assault and ill treatment during detention or other custodial situations, although there are a number of complaints involving deaths following shooting incidents. Only 6 IHAT examinations have been designated as “completed;” some of these have been forwarded to the Service Prosecuting Authority for further investigation while others have been closed for lack of evidence or proof of criminal conduct. The IHAT claims that it is investigating all but one of the cases mentioned in the ECCHR/PIL report to the OTP. Formed in 2010, the IHAT is scheduled to function through 2016. The Service Prosecuting Authority would be responsible for bringing charges against any of the individuals under investigation by the IHAT. Its Director is Andrew Cayley QC, a long-time international criminal lawyer who served as Senior Prosecuting Counsel at the Yugoslavia War Crimes Tribunal (ICTY) and the ICC and most recently as Co-Prosecutor of the Extraordinary Chambers in the Courts of Cambodia (ECCC).

A dedicated review team is addressing the case of Baha Mousa, a hotel receptionist who died in 2003 while in British custody. The U.K. Ministry of Defense finally paid compensation to Mousa’s family, admitted liability, and issued an apology; the court martial of the individuals deemed responsible ended in dropped charges and acquittals, although one individual pled guilty to inhuman treatment and served a year of jail time. The Ministry of Defense has admitted that at least 7 other individuals have died while in U.K. custody in Iraq. A U.K. Ministry of Defense report released in April 2014 raised concerns about the rise in court actions involving allegations of human rights abuses by victims of British troops and also by the family members of the troops themselves for combat-related injury or death.

The OTP’s preliminary examination could be a lengthy one. Many other such inquiries have been ongoing for years. Other situation countries that are the subject of preliminary examinations are:  Afghanistan, Central African Republic, Colombia, Comoros/Greece/Cambodia, Georgia, Guinea, Honduras, Nigeria, and Republic of Korea. 

About the Author(s)

Beth Van Schaack

Leah Kaplan Visiting Professor of Human Rights, Stanford Law School; Former Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department. All views are her own. Follow her on Twitter (@BethVanSchaack).