ICC examines 1268 cases of UK war crimes in Iraq – also cases dismissed by UK inquiry

Iraqi prisoners guarded by British soldier (al-Shaibah Logistics Base)

Just over a year back the Al-Sweady Inquiry (see Appendix) cleared British soldiers of war crimes in Iraq and, instead, blamed lawyers – Leigh Day and PIL – who represented the victims of those alleged crimes. However, some of the cases investigated by that Inquiry – notably those associated with the Shaibah Logistics Base – are being examined by the International Criminal Court as part of their wider investigation into more than 1200 cases of alleged UK war crimes in Iraq. Two other investigations into alleged war crimes in Iraq by British military and intelligence – that of the Iraq Historic Allegations Team (IHAT) and the Service Prosecuting Authority (the UK miltary equivalent of the Crown Prosecution Service) – are continuing. Updates on all three inquiries/investigations are given below, as well as a summary of some of the more prominent cases.

A. The allegations

In June 2012, The Mail on Sunday reported it could reveal claims of abuse carried out by British soldiers at a secret network of illegal prisons in the Iraqi desert. 64 Iraqi prisoners, picked up by the Australian SAS on April 12, 2003, were taken away on two RAF helicopters to a ‘black site’ prison at an oil pipeline pumping station. The pumping station, known as H1, was run jointly by British Forces and the American CIA. One of the 64 men, Tariq Sabri, was allegedly kicked to death by a member of the RAF regiment aboard one of the Chinooks. Another man who survived was unconscious and unresponsive when the flight landed, and a third lost his prosthetic legs. According to an RAF report, the two unconscious men – one of them, Mr Sabri – were loaded, face down, into a Humvee high-mobility tactical vehicle, one on top of the other. By the time it reached the camp, Mr Sabri was dead. The final fate of the surviving 63 prisoners remains unknown. Lieutenant Colonel Nicholas Mercer, the chief British Army lawyer in Iraq during the 2003 invasion, is reported to have stated that “These are alleged war crimes, but what Britain did may never be disclosed.”

Allegations were also made against troops in the wake of the killing of Baha Mousa, a Basra Iraqi hotel worker who died in 2003 while in British custody, and the Battle of Danny Boy in 2004, where it is alleged that British soldiers tortured and murdered Iraqi gunmen after a firefight (the Al-Sweady Inquiry dismissed the latter allegations). Interrogations by British military personnel involved young Iraqi men of 18, 19, and 20, some seriously injured with gunshot wounds, being stripped naked, forced to stand, not given appropriate medical treatment, and threatened with violence whilst still under the shock of capture in the middle of the night.

Following the death of Baha Mousa, one British soldier, Corporal Donald Payne, admitted being guilty of inhumane treatment of detainees and was jailed for one year. He became the first and only British soldier to admit a war crime. Six other soldiers were acquitted. The judge found that Mousa and several other men had been subjected to a series of assaults over 36 hours, but a number of charges had been dropped because of “a more or less obvious closing of ranks”.

A further 14 claims of torture have been made against the British Army, including how a team of military and MI5 interrogators allegedly authorised the physical and sexual abuse of Iraqi detainees at the Shaibah Logistics Base between 2004 and 2007 (now being investigated by the ICC despite rejection of the allegations by Al-Sweady Inquiry). Nearly all the men say they were beaten, denied sleep and dragged around the prison compound before facing multiple interrogations. In one account the interrogators are accused of creating an image superimposing a suspect’s head on the body of a man who is sexually abusing a child, and then threatening to disseminate the image throughout Basra. In another, a detainee, held in solitary confinement for 36 days, alleged interrogators threatened to rape his wife and kill his children. Many of the detainees’ witness statements appear to corroborate each other by referring to named soldiers responsible. According to the Iraqis’ solicitors, the interrogators were a mix of military, MI5 and civilian staff who took their orders from London.

When evidence of the above atrocities first surfaced in the British media in 2012, Lieutenant Colonel Nicholas Mercer, the chief British Army lawyer in Iraq during the 2003 invasion, said that what went on in the secret prison network amounted to ‘war crimes’. ‘The allegations are blatant violations of the Geneva Conventions and UN Convention Against Torture’, Mercer commented. “If indeed prisoners were rendered beyond Iraq’s borders, then this is potentially one of the most serious war crimes under the Rome Statute.

’Senior Conservative MP David Davis commented, ‘I find it astonishing that the military authorities responsible for the legality of prisoner detention were not even notified about these secret camps. If these allegations are substantiated, they amount to a serious blow to the rule of law’.

B. ICC dossier

The International Criminal Court at The Hague is currently investigating alleged war crimes committed by British military and intelligence personnel in Iraq, involving torture, abuse of legal process, rendition and illegal detention. The ICC has stated the following:

“On 10 January 2014, the Office of the Prosecutor received a new communication from the European Center for Constitutional and Human Rights (“ECCHR”) together with the Public Interest Lawyers (“PIL”), alleging the responsibility of officials of the United Kingdom for war crimes involving systematic detainee abuse in Iraq from 2003 until 2008. The United Kingdom deposited its instrument of ratification of the Rome Statute on 4 October 2001. The ICC has therefore jurisdiction over war crimes, crimes against humanity and genocide committed on the territory of the United Kingdom, or by UK nationals as of 1 July 2002, representing the date of the entry into force of the Rome Statute.”

The ICC will examine 1268 cases of alleged ill-treatment and unlawful killing by British personnel in Iraq. Some 259 civilian deaths will also be examined, including that of “at least 47 Iraqi persons who reportedly died in UK custody and others who were allegedly killed by UK services personnel in situations outside of custody”.

The alleged ill-treatment reportedly involved, inter alia, the following techniques: hooding of detainees; the use of sensory deprivation and isolation; sleep deprivation; food and water deprivation; the use of prolonged stress positions; various forms of physical assault, including beating, burning and electrocution or electric shocks; direct and implied threats to the health and safety of the detainee and/or friends and family, including mock executions and threats of rape, death, torture, indefinite detention and further violence; environmental manipulation, such as exposure to extreme temperatures; forced exertion; cultural and religious humiliation; and various forms of sexual assault and humiliation, including forced nakedness, sexual taunts and attempted seduction, touching of genitalia, forced or simulated sexual acts, as well as forced exposure to pornography and sexual acts between soldiers.

The decision by the ICC chief prosecutor, Fatou Bensouda, to proceed with the investigation of alleged war crimes by Britain was made after receiving the January 2014 complaint by the Berlin-based human rights organisation, the European Centre for Constitutional and Human Rights and a Birmingham law firm, Public Interest Lawyers (PIL) – which represented the family of Baha Mousa, the Iraqi hotel receptionist who was tortured to death by British troops in 2003 and has since represented scores of other men and women who were detained and allegedly mistreated.

Here is a copy of the Preliminary Investigation by the ICC, compiled just over 12 months back (the relevant sections are on pages 11 – 13, sub-sections 42 – 57).

According to the ICC report, “alleged crimes occurred in 14 military detention facilities and other locations under the control of UK Services personnel in southern Iraq. As well as the crimes associated with the Shaibah Logistics Base, the ICC will be examining alleged crimes at the following facilities: ‘The Guesthouse’, Camp Akka, the Provincial Hall and the Civil-Military Co-Operation House, Camp Abu Naji, Camp Breadbasket, the Shatt-Al Arab Hotel, Basra Palace and Camp Bucca.

Note that any war crime shown to have been committed by British servicemen or servicewomen is an offence under English law by virtue of the International Criminal Court Act 2001.

See also: Exclusive: Devastating dossier on ‘abuse’ by UK forces in Iraq goes to International Criminal Court

C. IHAT & SPA investigations

To date, almost 300 British soldiers have been sent letters by the IHAT, questioning their role in torture reports that emanated during and following the Iraq War. However, it is understood that the number could reach up to 1000.

The Iraq Historic Allegations Team is currently investigating alleged instances of prisoner abuse by British Service Personnel and deaths in custody in Iraq. These allegations involve over 140 Iraqi civilians. Louise Thomas, an official working who was with the inquiry team but who says she resigned in protest at the lack of progress, spent six months with the inquiry and had seen 1,600 videos of interrogation sessions. The alleged abuse took place at a joint services interrogation centre under the Joint Forces Interrogation Team, which operated at three locations in the Basra area between March 2003 and December 2008. IHAT is reported to have now identified more than 100 serving and former members of the armed forces who they want to interview relating to the alleged torture and abuse of Iraqi civilians. That number is expected to increase significantly.

The IHAT have listed, separate to the ICC list, 1339 cases of alleged abuse by UK military in Iraq. To see this list, click here.

Here is a copy of the last update report by the IHAT. Here is a list of completed IHAT cases.

The SPA (Service Prosecuting Authority) is already investigating 35 alleged unlawful killings in addition to a further 36 cases of potential abuse and mistreatment during the war. It is also expected to investigate a further 20 cases of unlawful killing and 71 cases of mistreatment.

Appendix: Al-Sweady Inquiry

The Inquiry dealt with accusations of mistreatment of prisoners by the British Army following the Battle of Danny Boy. The inquiry concluded December 2014, dismissing all the ‘serious charges’ as frivolous.

Here are documents released by the Inquiry:

• Part 1 of the Inquiry Report
• Part 2 of the Inquiry Report
• Part 3 of the Inquiry Report.
• Reports on the Iraqi deceased
• Executive Summary
• Chairman’s key rulings
• Inquiry’s Conclusions.
• Inquiry’s Recommendation

The Inquiry summary was as follows:

“Sir Thayne Forbes has published the report of his public inquiry into allegations of unlawful killing and ill treatment of Iraqi nationals by British troops in Iraq in 2004. His report has established beyond doubt that all the most serious allegations made against British soldiers in what became known as the Battle of Danny Boy and its aftermath have been found to be wholly without foundation and entirely the product of deliberate lies, reckless speculation and ingrained hostility. There were some instances of ill treatment of 9 Iraqi detainees by the British military during their overnight custody in May 2004 at Camp Abu Naji in southern Iraq but there were relatively minor when compared with the original very serious allegations.

The events with which the inquiry was concerned commenced with a deadly, planned and co-ordinated armed ambush of British troops on Route 6 on 14 May 2004. That armed ambush was carried out by a large number of heavily armed Iraqi insurgents, including the 9 detainees, who were intent on inflicting as much damage upon British troops as they could. A fierce battle ensued which resulted in 28 Iraqis being killed and 9 live Iraqis taken prisoner back to Camp Abu Naji where they were detained overnight prior to their transfer to the Divisional Temporary Detention Facility at Shaibah Logistics base where they were detained for a further 4 months prior to their release to the Iraqi Authorities. Sir Thayne makes 9 recommendations where he considers certain practices were unsatisfactory or deficient. Defence Secretary Michael Fallon has accepted all of the recommendations in principle.”

At the conclusion of the inquiry, the following statement was also released:

We have noted with concern the findings of the Al-Sweady Inquiry and the issues raised in the Ministerial Statement by Michael Fallon, the Secretary of State for Defence on 17 December 2014, which raised concerns about two law firms involved in litigation or the inquiry.

The Minister said: “The Iraqi detainees, their accomplices and their lawyers must bear the brunt of the criticism for the protracted nature and £31 million cost of this unnecessary public inquiry. The falsity of the overwhelming majority of their allegations, the extraordinarily late disclosure of a document showing the nine detainees to have been insurgents and the delay by their lawyers in withdrawing the allegations of torture and murder have prompted the Solicitors Regulation Authority to investigate possible breaches of professional standards. The authority is expected to complete its investigation into the two firms responsible, Public Interest Lawyers and Leigh Day and Co, early next year.

“Had the Legal Services Commission been aware in 2008 of this document it would have refused legal aid for the judicial review that took place then. That would have spared the service personnel a further six years of uncertainty and anxiety. It would have spared the relatives of the deceased a further six years of false hope, and it would have saved the British taxpayer a very high bill.”

We have been investigating aspects of this matter during 2014, although the falsity of the allegations was established in the findings of the inquiry published on 17 December 2014. We will be urgently concluding existing strands of investigation and reviewing the other concerns raised in the Ministerial Statement.

The following comment by Sir Tony Baldry in Parliament in response to the Ministerial Statement has also been noted and we will review the evidence: “The question of “how the firms of solicitors got their clients?”. There are suggestions that they were paying agents to go around Iraq to drum up business, often not knowing who their clients were. This seems to me to be yet another issue that needs to be properly investigated by the SRA.”