Iraq’s Long Shadow of Injustice Haunts Britain

It is often said that unresolved human rights violations cast a long and harrowing shadow. Atrocities and crimes committed in the past can come back to haunt even the most powerful states. For Britain, that restless shadow is the war in Iraq.

Earlier this week, two groups — the European Center for Constitutional and Human Rights (ECCHR) and Public Interest Lawyers (PIL) — lodged a formal complaint at the International Criminal Court (ICC), demanding that the ICC investigate British political and military officials for their alleged role in the commission of war crimes in Iraq. The filing maintains that senior figures within the British government bare the greatest responsibility for systematic torture and cruel, inhuman, and degrading treatment of Iraqi citizens between 2003 and 2008.

The complaint comprises a judiciously organized, comprehensive, 250-page dossier. Notably, it relies not only upon witness testimony but on documents and manuals revealed and produced by various commissions, inquiries, and British ministries. Its focus is on Britain’s Ministry of Defense and officials such as General Sir Peter Wall, former Defense Secretary Geoff Hoon and former Defense Minister Adam Ingram. Those hoping to see former Prime Minister Tony Blair targeted will be disappointed; his name does not appear once in the filing.

While the ICC is frequently criticized for its myopic focus on sub-Saharan Africa, attention has shifted in recent years, rather dramatically, toward the Middle East and North Africa. The court has grabbed headlines for its actual and potential role in Libya, Syria, Palestine, and now Iraq.

Still, the complaint should not be confused as constituting a judicial intervention into Iraq. Rather, this week’s filing could represent the best opportunity to expose senior British officials to investigation by the ICC. This poses an unprecedented political and legal challenge for the court.

Unsurprisingly, British government officials played down the importance of the filing, maintaining that it was a preposterous and baseless move. They argued that enough has been done — or is being done — to achieve justice for any human rights violations or crimes committed by British citizens in Iraq. As Foreign Secretary William Hague stated: "These allegations are either under investigation already or have been dealt with already in a variety of ways, through the historic abuse system that has been established, through public inquiries, through the UK courts or the European courts." Under the ICC’s complementarity regime, the court can only investigate crimes in instances in which the state is unwilling or unable to genuinely do so itself. The British government appears prepared to argue that it satisfies the ICC’s complementarity criteria and that, therefore, the court has no grounds to investigate British officials.

Not so fast, argue those involved in the filing. At the official launch of the complaint in London, Wolfgang Kaleck of the ECCHR maintained that no investigation conducted by the British to date would preclude the ICC from taking up the case. Even if some lower level perpetrators have been brought to justice, those "most responsible" continue to enjoy impunity. Phil Shiner from PIL added that various public inquiries and the provision of damages simply don’t cut it. What is needed, and what the filing seeks, is individual criminal responsibility. Moreover, this isn’t about a few "bad apples." The authors of this "devastating dossier" have those "at the top" in their cross hairs.

Of course, allegations of inhuman treatment and human rights violations committed by Western troops in Iraq is nothing new. In fact, the ICC has received hundreds of complaints in the case of Iraq. In 2006, then ICC Chief-Prosecutor Luis Moreno-Ocampo decided that, while alleged abuses committed in Iraq fell under the jurisdiction of the court, they were not of sufficient gravity to warrant further investigation. Other situations warranted his attention.

Some, however, believe that the ICC prosecutor was guided by political — rather than legal — motivations in deciding not to investigate allegations of torture and cruelty by British troops in Iraq. Since its inception in 2002, the British government has been amongst the most fervent and important supporters of the court. Undermining that relationship, as well as its relationship with the United States, by targeting its military and political officials could easily be seen as politically unwise — especially for a young and fragile institution.

This accommodation to Western powers, however, has come at some cost to the ICC. The court has only issued arrest warrants in African states where the political interests of Western powers are either minimal or where ICC interventions actually complement their interests. This has undermined the court’s global reputation. Rather than being seen as an impartial and even-handed judicial institution, the ICC is increasingly derided as a tool of Western states, meting out selective justice by targeting weak states while turning a blind eye to crimes committed by powerful ones.

This filing should thus be seen as a momentous challenge to the ICC and an opportunity to restore its international respectability. Its authors clearly believe that opening an investigation into alleged abuses committed by the British would not only serve justice but also demonstrate that the ICC does not propagate double standards. And they are very confident that the ICC will do so. As far as they are concerned, the court simply has no other choice.

Mark Kersten is a researcher at the London School of Economics. His work focuses on the nexus of international criminal justice and conflict resolution, specifically examining the effects of the ICC on peace processes and negotiations in northern Uganda and Libya. He is also the creator and co-author of the blog, Justice in Conflict.