War Crimes Investigations in the UK: All is Fair in Law and War?

On 22 January 2015, the Prime Minister of the United Kingdom (UK), ordered a “clampdown on ‘spurious’ legal claims” against members of the UK military for war crimes allegedly committed during the 2003 Iraq war. This announcement came 13 days after the Iraq Historic Allegations Team (IHAT) sent letters to around 280 British troops, informing them that they were under investigation for incidents occurring during their time in Iraq. The head of the IHAT, Mark Warwick, had previously stated that some of these troops could face criminal prosecution for war crimes.

While the last British troops left Iraq in 2011, national and international investigations into the UK military’s conduct in Iraq are still ongoing and continue to spark controversy. Civil lawsuits as well as criminal prosecutions could still be on the horizon for some British nationals. Gerry Simpson described this continuous quest for justice and the backlash against its results as the human dilemma of “wanting justice and being 'sick of giving it'”. This blog will examine the British involvement in Iraq and the alleged war crimes committed during their mission, as well as the efforts undertaken to discover the truth and to seek justice.

Coalition of the Willing

In March 2003, a coalition of states embarked on a 21-day mission in Iraq. The subsequent 2003 Iraq War lasted until the end of 2011. The last troops of the UK mission to Iraq, called Operation Telic, left Iraq in May 2011. War crimes are alleged to have been committed during Operation Telic, and most notably during Phase 3 of the operation. While Phase 1 focused on planning and deployment, Phase 2 concerned major combat operations and started with the deployment in Iraq in March 2003. Phase 3 related to stabilization and reconstruction and lasted from 6 May 2004 onwards.

The British troops are accused of committing two types of war crimes during this period: the unlawful killing of Iraqi civilians and abuse of Iraqi civilians detained by them. With regard to the first set of accusations, both Human Rights Watch and Amnesty International published reports on, inter alia, the use of cluster munitions in residential neighbourhoods, aerial attacks causing disproportionate amounts of civilian casualties, and several shooting incidents during which Iraqi civilians were killed. Furthermore, REDRESS wrote a report on the mistreatment and abuse of several Iraqi detainees between March 2003 and June 2004.

The Legal Framework

The conduct of British troops in Iraq is governed by three fields of international law: international humanitarian law, international criminal law and international human rights law. These rules of international law provide for accountability on the international level and are complemented by domestic implementing legislation. Furthermore, the conduct of the British military is regulated internally by national military law which includes elements of international law.

The first field of law - international humanitarian law - regulates the means and methods of warfare and the protection of those not participating in an armed conflict. International humanitarian law can be found in a number of international treaties, including the Hague Conventions of 1899 and 1907, the four Geneva Conventions of 1949 and its three protocols of, respectively, 1977 and 2005. The UK ratified has all of these conventions and incorporated their provisions in their domestic legal system through the promulgation of the 1957 Geneva Conventions Act and its 1995 Amendment.

International criminal law imposes criminal responsibility on individuals for different types of serious crimes, including war crimes. International criminal law and international humanitarian law are overlapping fields of law, as war crimes under international criminal law are likewise violations of international humanitarian law. International criminal law exists on both the international and national level. On the international level it is the law applied by several international criminal tribunals – such as the International Criminal Court (ICC) – and which provides for the investigation, prosecution and conviction of the perpetrators of international crimes, subject to their jurisdictional limitations. On the national level it is the incorporation of international crimes into domestic criminal law. In 2001, the UK ratified the Rome Statute of the ICC and promulgated the International Criminal Court Act to incorporate its provisions into domestic law.

International human rights law imposes obligations on the UK as well. The UK is party to a number of international human rights treaties, including the Universal Declaration of Human Rights, the European Convention on Human Rights, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The rights of the European Convention on Human Rights are incorporated in the domestic 1998 Human Rights Act.

Under national military law, misconduct by the UK armed forces is regulated by the 2006 Armed Forces Act. This Act provides for individual criminal responsibility and penalizes two different types of offences: disciplinary offences and criminal offences – the latter constituting conduct criminalized by civilian criminal law.

Past, Current and Future Investigations

With regard to violations of international humanitarian law and international criminal law, the ICC Prosecutor announced in 2006 that he had received more than 240 communications regarding the situation in Iraq, which included, inter alia, alleged war crimes committed between March and May 2003. The ICC Prosecutor concluded that, even though there might be a reasonable basis to believe that certain crimes within the jurisdiction of the Court had been committed, the gravity threshold had not been met. Nevertheless, in January 2014 the ICC Prosecutor had received new communications which alleged that “war crimes involving systematic detainee abuse” had been committed by UK officials in Iraq between 2003 and 2008. In May 2014, the ICC Prosecutor announced the re-opening of the previously concluded preliminary examination of the situation in Iraq. At the time of writing, the preliminary examination of Iraq is in its second phase, which means that the ICC Prosecutor is examining whether the alleged crimes fall within the subject-matter jurisdiction of the ICC.

With regard to international human rights law, Public Interest Lawyers brought a case against the UK Secretary of State of Defence in 2004 in the name of the families of six Iraqis killed by British troops in 2003. The case entailed a request for judicial review of the alleged failure of the Secretary of State to conduct independent investigations into the deaths. While five cases involved shooting incidents, the sixth case entailed mistreatment and subsequent death of an Iraqi detainee. In December 2004, the Divisional Court dismissed five cases, while ordering the government to start an inquiry into the sixth case. All six cases were eventually taken to the European Court of Human Rights which concluded in July 2011 that the UK had failed to adequately investigate the cases and had therefore violated the European Convention on Human Rights.

Additionally, seven cases have been brought before UK courts-martial on the basis of national military law. The incidents that lead to the court-martial cases are described in a 2008 investigative report by the Ministry of Defence. These seven events all took place during Phase 3 of the UK mission - between May 2003 and April 2004 - and involved murder, manslaughter, and abuse and inhumane treatment of detainees. Although some of the soldiers involved were found guilty and were sent to military prison, others were acquitted, while other cases were never investigated or were dismissed for lack of evidence.

Aside from these investigations and cases, there have been a multitude of inquiries initiated by the British government, including the official Iraq Inquiry, the Al-Sweady Inquiry, and finally the IHAT. The latter was created to investigate allegations of mistreatment and unlawful killings of civilians by British troops in Iraq between March 2003 and July 2009. As of 30 September 2015, the number of victims assigned to the IHAT for investigation was 1.514, of which 280 cases concern victims of unlawful killings and 1.235 cases concern victims of mistreatment. While the head of IHAT has stated that British troops might be prosecuted for war crimes as a result of the IHAT investigations, none of the investigations have so far resulted in criminal prosecution.

All is Fair in Law and War?

On 22 January 2016, a letter was sent to Prime Minister David Cameron, signed by seven human rights organisations. In this letter, both the Prime-Minister and the Defence Secretary are accused of making “ill-judged” attacks against those organizations investigating war crimes allegations, and are cautioned that such attacks could damage their investigations. These recent events, considered in light of the collection of investigations, inquiries and case law of both the past, present and future, show the increasingly complicated relationship between war and law. In the present day and time, with the rapid development of areas of international law which increasingly provide for accountability of both states and individuals, war can no longer exist in a lawless vacuum. Nevertheless, this blog has shown that, at least in the UK, this is not a fact all parties are equally ready to accept.