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Will British Politicians Ever Stand Trial for War Crimes in Iraq?

These lawyers say they should, but they probably won't.

by Antonia Oettingen
17 January 2014, 7:00am

The panel at the PIL and ECCHR press conference (from left to right): Professor William Schabas, Michael Fordham QC, Phil Shiner and Wolfgang Kaleck

On Saturday, a 250-page dossier detailing thousands of war crimes allegedly committed by British forces in Iraq was handed to the International Criminal Court (ICC). The two groups behind the report are Public Interest Lawyers (PIL) – an international law firm that challenges the unlawful behaviour of governments – and a human rights organisation called the European Centre for Constitutional and Human Rights (ECCHR).

While the war crimes were allegedly carried out by soldiers on the ground, the dossier also names a number of British politicians and army generals, including General Sir Peter Wall, ex-defence secretary Geoff Hoon and former defence minister Adam Ingram. The government has insisted that it will fight a bid to prosecute the higher-ups named in the report, but PIL and the ECCHR appear pretty adamant in their accusations, claiming that "those who bear the greatest responsibility" for the alleged war crimes "include individuals at the highest levels" of the British army and political system.

This, of course, isn't the first time that British forces and their superiors have been accused of misconduct in Iraq. Tony Blair seems to get hassled about his involvement at pretty much every book signing he attends, and it looks like George Galloway is determined to make the former prime minister stand trial by documentary. Plus, there are those guys in Kuala Lumpur who already found Blair and George Bush guilty of war crimes at their own international criminal court, despite the fact that neither of them were there to defend themselves.

That said, all of those incidents didn't exactly pack much clout; they seemed more symbolic, or stupid, or like a clever way of keeping George Galloway in the spotlight after he lost his political columnist gig for equating alleged sexual assault with "bad manners". But this case seems like it could actually achieve something. Real lawyers making a legitimate presentation to the ICC at The Hague – could we really be about to see some British politicians and army generals in the dock?

There is a precedent for at least some accountability when it comes to Western war crimes. For instance, there was the leak of that report by the Committee of the International Red Cross (ICRC) in 2004 that exposed the treatment of Iraqi prisoners by coalition forces. Since then, some victims have received reparation payments and a corporal has been convicted by martial court. However, the report by PIL and the ECCHR is the first to address the subject of command responsibility. The two organisations aren't interested in cracking down on the few bad apples giving the British army a bad name; instead, they want to see those at the top of the command chain – the politicians and generals – on trial.

If they're successful in their bid, Hoon, Ingram and General Sir Peter Wall, among others, could be held to account for the alleged war crimes. That might sound unlikely, but the accusations – unlike those made in Kuala Lumpur – were clearly important enough to attract comment from current Defence Secretary William Hague; on Sunday, the Tory MP denied the allegations and said there was no need for an investigation.

PIL and the ECCHR held a press conference at the Law Society on Tuesday night, so I went along to see if this would go anywhere.

Phil Shiner

The room was busy when I arrived; there were a bunch of law students from LSE, members of the legal community and press ranging from AP to Al Jazeera. But it wasn't like photographers were jostling for positions or journalists were squabbling over front row seats – the crowd was surprisingly sedate, given the fact we were at a press conference accusing top-ranking British politicians of being complicit in war crimes.

However, Phil Shiner from PIL tried his best to electrify the atmosphere. He proclaimed that this was an "historic evening" and went into detail about the alleged abuse of Iraqi prisoners at the hands of UK forces, saying it ranged from "hooding", burning, electric shocks and cultural and religious humiliation, to sexual abuse and "mock executions".

He then read out a passage from the report where one of the Iraqi detainees recalls his treatment. "The soldier put his boot on my chest and pulled my trousers down," Shiner recounted. "I was shouting and was curled up against the wall. Then the soldier pulled me by my legs away from the wall. He turned me over on my stomach. He started rubbing his penis on my back, while the other soldiers watched. Then I felt him ejaculate on my back. I was trying to move away but another soldier came and pressed his foot on my legs."

Shiner went on to talk about what seemed to be an overwhelming bulk of evidence compromising Hoon and his colleagues at the Ministry of Defence. PIL and ECCHR didn't only record witness allegations for their dossier, they also examined Military Line of Duty documents and training material. A 2008 manual reads: "The prisoner should be kept in a state of physical discomfort and intimidated," and soldiers are told they should "provoke humiliation" and "condition the prisoners before questioning". A video where intimidation and humiliation techniques were used on a prisoner was then shown, which was not very enjoyable whatsoever.

The focus then turned to Geoff Hoon, PIL and the ECCHR's main suspect. Shiner was getting increasingly worked up as he talked about Hoon. His face was turning red and his voice moved up an octave, then he started speaking directly to the ex-defence secretary, who unfortunately wasn't there to answer his questions. “Why did you repeatedly tell MPs that there was no evidence of hooding?” he asked. Hoon admitted in May 2004 that he had read a report detailing evidence of hooding and then in October that year told Parliament that there was no evidence that it was going on. According to the PIL report, not only did he give incorrect info to Parliament, but didn’t do anything about it and the abuse continued for six years. As the report put it, "civilian superiors knew or consciously disregarded information at their disposal, which clearly indicated that UK services personnel were committing war crimes in Iraq".

Wolfgang Kaleck

Wolfgang Kaleck later explained why the ICC hadn't taken up the same investigation when it was presented to them in 2006. They stated, according to Kaleck, the low quantity of cases and gravity of the cases as a reason for not investigating. However, this time it will be harder for the prosecutors to dismiss the case, as the dossier includes the stories of more than 400 Iraqis, representing thousands of allegations of torture or cruel, inhuman or degrading treatment.

I called Kaleck for a chat this morning and he told me that, from a legal standpoint, there is no doubt that the findings of the report justify an investigation by the ICC. However, that says nothing about the likelihood of it going any further than a preliminary examination.

Do those who apparently bear the greatest responsibility for the crimes really have nothing to fear? Are Hague and his team right to dismiss the allegations that easily? One of the speakers told me after the conference that there was a "less than 50 percent chance that this goes further than a preliminary examination by the ICC".

Rounding off our chat, I asked Kaleck if he believes the ICC is really interested in prosecuting British generals and politicians. He laughed. "Look, we know that it’s a problem for the ICC," he explained, "because there's a dependency on the European states."

So if that's the opinion of one of the people behind the bid to get Hoon and his friends to stand trial, I suppose we shouldn't be holding our breath, as it doesn't look like we'll be seeing British politicians and army generals in the dock at The Hague any time soon.

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