»Die Misshandlung war systematisch«

We herewith file a communication to the OTP of the ICC under Article 15 of the ICC Statute10 requesting that the Prosecutor examine the situation in Iraq from 2003-2008 with regard to the responsibility of UK military and civilian officials for the abuse and killing of detainees in their custody amounting to war crimes. The communication refers to a bundle of supporting documentation, enclosed herewith, that includes, inter alia, copies of the witness statements and recorded accounts of the Iraqi victims.

We ask the Prosecutor to, first, conduct a preliminary examination under Article 15(2) of the ICC Statute into these matters and, second, submit a request for authorisation of an investigation to the Pre-Trial Chamber under Article 15(3) of the ICC Statute, in order to initiate a full investigation with all duties and powers provided by Article 54 of the ICC Statute.

This is not the first such communication to the OTP on Iraq. On 9 February 2006, the OTP issued a decision in response to over 240 communications sent to its office relating to the situation in Iraq.11The allegations were of conduct amounting to war crimes, including mistreatment of detainees and wilful killing of civilians. The OTP held that:

„[a]fter analyzing all the available information, it was concluded that there was a reasonable basis to believe that crimes within the jurisdiction of the Court had been committed, namely wilful killing and inhuman treatment.“

However, it found that the gravity threshold, whether as contained in war crimes Article 8(1) or in the general gravity requirement of Article 53(1)(b), had not been met, preventing admissibility before the Court. Notably, the Prosecutor decided that „[t]his conclusion can be reconsidered in the light of new facts or evidence.“ 

The present communication summarises the new facts and evidence which have become available in the supervening period. Principally, these are materials obtained from both Iraqi victims and the UK Government in the context of the legal representation by PIL in the UK of 412 Iraqi victims of severe physical and psychological abuse sustained while in the custody of UK Services Personnel from 2003 to 2008, inclusive. The allegations are serious, involving incidents in military detention facilities and other locations, that include: hooding of detainees; the use of sensory deprivation and isolation; sleep deprivation; food and water deprivation; the use of prolonged stress positions; use of the ―harshing‖ technique (sustained aggressive shouting in close proximity); a wide range of physical assault, including beating, burning and electrocution or electric shocks; both 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; as well as wide-ranging 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.

Between them, these 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.

There are considerable reasons to allege that those who bear the greatest responsibility for the crimes are situated at the highest levels, including all the way up the chain of command of the UK Army, and implicating former Secretaries of State for Defence and Ministers for the Armed Forces Personnel. The information is compelling and, in the authors‘ submission, demonstrates without question that the gravity requirement is now fulfilled. As such, we call for the immediate establishment of the preliminary examination and investigation previously sought, pursuant to the indication already given by the OTP in its 2006 decision.

For the last 10 years the UK Government has remained unwilling to genuinely investigate and prosecute low-level perpetrators. Further, there have been no efforts by the UK to investigate and prosecute high-level perpetrators. In the absence of genuine national proceedings for war crimes committed by UK Service Personnel in Iraq, the OTP must, in accordance with the ICC Statute and the most recent OTP Policy Paper on Preliminary Examinations of November 2013, seek to ensure that justice is delivered for crimes within the jurisdiction of the ICC.

As elaborated in this communication, we conclude that at 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.

Consequently, the present communication calls for the immediate establishment of the preliminary examination and investigation sought, pursuant to the indication already given by the OTP in its 2006 decision.

In this regard, we note the four phase filtering process established by the OTP. With respect to phase 1, this Communication details matters that are within the jurisdiction of the Court. The conduct alleged was committed by UK Services Personnel in Iraq from 2003 until 2008. The UK ratified the ICC Statute on 4 October 2001. Accordingly, the ICC has jurisdiction over acts amounting to war crimes under the ICC Statute that were committed by UK citizens in Iraq after the entry into force of the ICC Statute in 2002. The situation is not currently under preliminary examination, investigation or prosecution by the ICC. A detailed factual and legal analysis of the conduct amounting to war crimes under the ICC Statute is provided in Chapter IV (Facts: Systemic Abuse) and Chapter V (Legal Analysis of Alleged War Crimes). Further, we note that in 2006 in the Letter to Senders to Iraq, the OTP concluded that there was a reasonable basis to believe that crimes within the jurisdiction of the Court had been committed.

With respect to phases 2-4, we provide detailed information relating to jurisdiction (Chapter VII), war crimes (see Chapters IV, V and VI), and admissibility (Chapter VIII) in this Communication. There is no evidence of specific circumstances which provide substantial reasons to believe that the interests of justice are not served by an investigation at this time.  

Number of cases and victims

For the purposes of this communication, we ask the OTP to note the numbers of cases and victims as at 1November 2013. Updated figures can be provided to the OTP after this complaint proceeds to the relevant stage of the preliminary examination.

There are 3 sets of figures to bear in mind. First, the analysis of PIL of its first 85 Judicial Review cases in the Ali Zaki Mousa proceedings involves109 victims of violations of the prohibition against torture and inhuman and degrading treatment or punishment contained in Article 3 ECHR17Second, during the Ali Zaki Mousa proceedings, the High Court was aware of a total of 19818 PIL victims of violations of the right to life contained in Article 2 ECHR, and violations of Article 3 ECHR19.Third, in addition to these 198 victims, PIL now acts for a further635 victims, making a total of 833 victims represented by PIL. Of these 635 further victims:206 are relatives of victims of unlawful killings or deaths apparently violating Article 2 ECHR; 214 are surviving victims claiming violations of Article 3 ECHR and Article 5 ECHR, which protects the right to liberty and security of the person, and prohibits arbitrary arrest and detention; and 215 are presently unidentified cases where PIL is at this stage unable to ascertain how many of these cases are Article 2,Article 3 or Article 5 ECHR cases. Throughout the document these victim numbers are grouped variously. There are 41220 surviving victims represented by PIL who allege ill-treatment in violation of article 3 ECHR. 61821of the PIL victims were unlawfully detained in violation of article 5 ECHR.

In this communication, the term „detainees“ will be used in its general sense to refer to persons taken into UK custody. The UK Services Personnel in Iraq often used the term „detainees“ to describe persons arrested for criminal misconduct, „Prisoners of War“ to refer to detained combatants, and „internees“ to refer to civilians detained for security reasons. However, we will refer to „prisoner handling“ when referring to UK Services Personnel training, as this is the accepted term used.

The term „victim“ will be used to refer to any person detained and subjected to torture or cruel, inhumane or degrading treatment by UK Services Personnel. This term will also be used with respect to relatives of individuals who were killed by UK Services Personnel while in custody, within their home, in the street or in any other circumstance.

The term „UK Services Personnel“ refers to the UK Armed Forces, including intelligence and security personnel who could be civilian members and UK Special Forces. 

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