War crimes: Why is Britain in the dock again?

War crimes: Why is Britain in the dock again?

As the International Criminal Court examines fresh claims of abuse by our troops in Iraq, we look at whether senior figures could find themselves on trial for war crimes at The Hague

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'People at the highest level knew what was going on in Iraq,’ says Phil Shiner of PIL, who is representing the Iraqis Photo: Heathcliff O'Malley



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6:55AM BST 15 May 2014



Once again, accusations of serious human rights abuses hang over British troops . And once again those men, who put their lives at risk for their country, face the prospect of being dragged through the courts.

Yesterday, it was revealed that the [You must be registered and logged in to see this link.]. The ICC’s investigation raises the disturbing prospect that Britain could eventually find itself in the dock at The Hague charged with war crimes. If that comes to pass, not just the generals on the ground but the politicians who sent them would find themselves in the same company as some of the world’s most unsavoury warlords and dictators, facing trial for breaching the most fundamental rules of warfare.

It is a prospect that angers and upsets those who issued battle orders and those who did the fighting. Colonel Richard Kemp, the former Commander of British forces in Afghanistan, denounced the move as “politically motivated” and called for David Cameron to publicly support British troops in the face of what he called “baseless” accusations.

“These accusations are not only vindictive,” he says, “they are also intended to undermine the ability of our Armed Forces and our government to defend this country. It is as serious as that.”

But for those representing dozens of Iraqis who claim to have been abused by British troops, the ICC’s decision is simply a step closer to what they would regard as justice. Phil Shiner, of Public Interest Lawyers (PIL), the firm representing the Iraqis making the allegations, says his job is simply to call those responsible for the conduct of British troops to account for any wrongdoing their men may have committed.

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“We are very concerned that people at the very highest level knew exactly what was going on in Iraq and chose to turn a blind eye or, worse, actually sanctioned it,” he says.


The announcement that the ICC has begun a “preliminary examination” of alleged abuses by British troops between 2003 and 2008 comes barely four weeks after the end of the Al-Sweady public inquiry. This spent 168 days, and £22.6 million, examining claims that British troops tortured and abused Iraqi detainees following a bloody firefight in May 2004, which became known as the Battle of Danny Boy.

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^{This picture of detained Iraqis being guarded by a British soldier was shown at the Al-Sweady inquiry}



The men of the Princess of Wales’s Royal Regiment and the Argyll and Sutherland Highlanders now await the findings of Sir Thayne Forbes, the inquiry chairman, into whether they took part in such abuse. They were cleared of the worst accusations, after lawyers representing the Iraqi detainees conceded there was no evidence that soldiers had killed wounded and captured insurgents during and immediately after the battle and mutilated their bodies, in breach of the most basic tenets of warfare and civilised behaviour.

But the ICC’s examination once again raises the spectre that British troops behaved abominably during a campaign intended to restore freedom to the Iraqi people and get rid of weapons of mass destruction.

The ICC, headed by its chief prosecutor Fatou Bensouda, began examining the allegations after receiving a dossier of evidence in January this year from lawyers alleging “systematic” abuse of detainees at the hands of British soldiers. Those who have examined the 250-page dossier, compiled by Birmingham-based PIL and the European Centre for Constitutional and Human Rights, say it makes for disturbing reading.

It includes detailed claims that British troops not only beat detainees, but carried out mock executions, administered electric shocks and even took part in sexual assaults. Furthermore, it claims that the ultimate responsibility for the abuse lay with senior commanders and politicians, including the former defence secretaries Geoff Hoon, John Reid, Des Browne and John Hutton, along with Adam Ingram, the former Armed Forces minister.

The ICC said: “The new information… alleges the responsibility of officials of the United Kingdom for war crimes involving systematic detainee abuse in Iraq.”

The British Government rejects the allegation in the most forthright terms. Rather than leaving it to the Ministry of Defence to defend the conduct of its forces, Dominic Grieve, the Attorney General and the most senior law officer in England and Wales, stepped into the breach. “The Government completely rejects the allegation that there was systematic abuse carried out by the British Armed Forces in Iraq,” he said.

“British troops are some of the best in the world and we expect them to operate to the highest standards, in line with both domestic and international law. In my experience the vast majority of our Armed Forces meet those expectations. Where allegations have been made that individuals may have broken those laws, they are being comprehensively investigated.”

Complicating matters is the fact that the Britain is already, as Mr Grieve pointed out, investigating the claims. As part of the work of the Service Prosecuting Authority (SPA), the independent military prosecution service responsible for considering criminal cases against personnel, the Iraq Historic Allegations Team (IHAT) has been investigating 52 allegations of unlawful killing by British troops, involving 63 deaths and 93 allegations of mistreatment, involving 179 people.

However, the ICC, set up in 1988 to investigate the most serious war crimes, is bound by its constitution to oversee investigations being carried out by its member states. Should it be satisfied that the UK is thoroughly investigating the allegations, it will not intervene. But if it finds such claims have not been genuinely investigated or prosecuted then it will mount its own full inquiry, potentially leading to Britain appearing before a war‑crimes tribunal.


It is fortunate, therefore, that the IHAT is led by a man steeped in the inner workings of war crimes tribunals. Andrew Cayley QC, the director of service prosecutions at the SPA, has nearly 20 years’ experience of war crimes investigations and prosecutions, including at the International Criminal Tribunal for the former Yugoslavia – where he led the case against General Ratko Mladi´c. He was also chief international co-prosecutor of the Khmer Rouge in Cambodia and has been a senior prosecuting counsel at the ICC. One hardly imagines Mr Cayley to be the kind of man to go soft on those in uniform who are accused of abuses and mistreatment of detainees.


He himself is confident his team’s investigation will not be found wanting by the ICC. “We are already looking in depth at every single case named in that dossier,” he says. “If the UK is found to be genuinely investigating these crimes and prospectively prosecuting them, the ICC will not intervene.” The SPA “will not flinch” from bringing prosecutions against British servicemen, he says, if the evidence justifies it.

But the IHAT has been repeatedly criticised by human rights lawyers, such as PIL, for being neither impartial, nor thorough. They say the ICC is the only forum to which the Iraqi detainees can turn for justice.

Mr Shiner’s firm has a long history of handling the claims of Iraqis who say they were subjected to abuse and degrading treatment by the British occupying forces. These claims were initially documented on the ground by small NGOs and charities operating in southern Iraq, the area controlled by the British following the 2003 invasion. The allegations were then passed on to PIL, who took on the cases.

In return for representing the nine former detainees at the Al-Sweady inquiry PIL was paid £70,000 in legal costs by the Ministry of Defence and would expect to be paid similar sums in any future criminal cases, either in legal aid or as a result of compensation payments awarded to the men by the courts.

There is a simple reason why Britain finds itself again placed in the spotlight over its conduct in wartime, while the US – which had far greater numbers of troops in Iraq and faced allegations of torture, including at the Abu Ghraib detention centre – does not. This is because the US government chose not to sign up to the court when it was founded in 2002.

Britain, as both a war-fighting nation that still regularly sends its troops into battle and a member of the ICC, would appear to have left itself open to the prospect of being arraigned by those who accuse it of human rights abuses. And it is this unique position, Col Kemp maintains, that lawyers are now exploiting. “From my 30 years’ of experience, I can say there could never have been any systematic abuse carried out by British Armed Forces, but it was inevitable that this kind of legal action would happen from the moment we fully signed up to the ICC,” he says. “In my judgment, and that of many of my colleagues, if the court decides to pursue a full war crimes investigation against British troops, the UK should pull out of the ICC.”

Mr Cayley, however, takes a far more sanguine approach. “There was really no need for the British government to be reluctant about joining the ICC,” he says. “They knew we’d be able to deal with these cases ourselves, should they arise, and that is precisely what we are now doing. Our legal system is among the most rigorous in the world, and if there are false claims made, these will be exposed by IHAT’s investigations. If, on the other hand, there is evidence of war crimes, it is only right that they should be prosecuted.”

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