The prosecutor of the International Criminal Court (ICC) closed, on December 9, a preliminary examination targeting alleged war crimes committed by British forces in Iraq between 2003 and 2009. Fatou Bensouda says she has information on inhuman treatment inflicted to Iraqi civilians and prisoners, torture, killings, rape and sexual violence, but, the British authorities having investigated these allegations, the court cannot take up the case.
The ICC aims to end impunity for perpetrators of mass crimes. It therefore intervenes only as a last resort, when a State does not have the capacity or the political will to judge the perpetrators. Before closing the case, the prosecutor had to ensure that the investigations conducted in the UK were not a sham intended to cover up the perpetrators of alleged crimes. In her report, Fatou Bensouda explains that she is not “Able to conclude that the authorities of the United Kingdom intended to exempt individuals from their criminal responsibility”. She therefore closes the file without opening an investigation.
Confession of helplessness
In London, Defense Secretary Robert Wallace saw confirmation “That the Ministry of Defense is willing and able to investigate and prosecute allegations of wrongdoing by personnel of the armed forces.” Following numerous complaints, the British government established the Iraq Historic Allegations Team (IHAT) in 2014 to assess whether there was evidence to support criminal prosecutions against commanders and military leaders. His work was “Recognized by the ICC”, Robert Wallace believes today. However, the prosecutor’s report is far from welcoming the British investigations.
On 185 pages, the prosecutor signs in fact an admission of helplessness. Despite the allegations of the two NGOs which seized it in May 2014, Public Interest Lawyers (PIL) and the European Center for Constitutional and Human Rights (ECCHR), and despite the revelations, in mid-November, of the Sunday Times and BBC Panorama.
“Military investigators have uncovered disturbing allegations that senior commanders attempted to hide war crimes from British troops in Iraq and Afghanistan,” thus wrote the Sunday Times, supporting testimony. The IHAT investigators transmitted well “A handful of cases” to the British Prosecutor for Military Affairs, but “The latter has systematically given up” to conduct trials. “Not a single case has given rise to prosecution”, Fatou Bensouda further notes, while welcoming the government’s initiatives, at the risk of inconsistency.
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