International court finds UK war crimes in Iraq but will not open investigation

Dec 14, 2020

A new report by the International Criminal Court (ICC) released Wednesday found that British troops likely committed war crimes in Iraq between 2003 and 2009. However, the global court has decided not to open an investigation.

The 184-page report found evidence linking a pattern of war crimes carried out for years against Iraqis held in custody, many of whom were civilians, citing torture, rape, other forms of sexual violence and beatings so badly that those in custody later died from their injuries.

Despite the findings, the ICC is closing its probe into the allegations, saying that it cannot conclude that UK authorities had been unwilling to genuinely carry out an investigation. The court only takes cases if a member state is unwilling or unable to carry out a case or if a state investigation is deemed questionable.

In its more than 10-year judicial process, UK authorities have examined thousands of allegations. Not one has resulted in being submitted for prosecution, the ICC found. The global court said the UK’s process “has deprived the victims of justice.”

The decision to close the examination “rewards bad faith and delays brought about by the failure of the UK military and authorities to conduct independent and impartial investigations into allegations in the immediate aftermath of the conflict in Iraq,” wrote Matthew Cannock, head of Amnesty International’s Center for International Justice.

The UK government, in turn, accused human rights lawyers of presenting claims without sufficient grounds.

The preliminary examination of the Iraq situation was closed in February 2006 but reopened in May 2014 upon the receipt of new information.

The British army’s initial response to alleged offenses was “inadequate” and marred by a “lack of independence and impartiality,” according to the ICC, leading some to question if the UK had shielded soldiers from prosecution. But impartiality on its own is insufficient to launch an investigation.

To bolster its internal process of reviewing cases, the UK established the Iraqi Historic Allegations Team in March 2010. It was expected to take two years to complete its work, but its caseload ballooned from 165 to over 3,500. Many cases did not include credible evidence, according to a Defense Committee report, and upended the lives of those who were under investigation. By 2017, the team was shuttered after spending more than $45 million and leading to no prosecutions. Parliament members branded the effort an “unmitigated failure.”

Based in The Hague, Netherlands, the ICC began operations in 2002 to prosecute individuals for international crimes of genocide, crimes against humanity, war crimes and crimes of aggression. The body consists of over 100 member states.

Mounting criticism by court observers and global leaders has accused the court of lacking fairness in its case selection and trial procedures, prioritizing focus on the African continent. Of the 13 official ongoing investigations, 11 are from African countries. A number of other cases have had preliminary examinations closed, including those in Venezuela, Palestine, Honduras and South Korea. The US Department of State has also accused the court of lacking necessary safeguards that would guarantee politically motivated investigations and prosecutions.

In reviewing allegations of war crimes committed by British troops against Iraqis, UK authorities admitted that significant and recurrent weakness in the cases was the scarcity of forensic evidence and inconsistencies in witness testimony. The ICC found that while those are common features in investigating crimes of this nature, they were also in large part due to inadequacies of the British investigations.

Bensouda would reconsider closing the case, she said, if fresh evidence emerged.

The UK is now seeking to introduce a new law, the Overseas Operations (Service Personnel and Veterans) Bill, that aims to make it harder to prosecute British soldiers.