The prosecutor of the International Criminal Court (ICC) Fatou Bensouda said last week that the court would reopen a preliminary examination of alleged war crimes committed by UK soldiers during the Iraq war.
The allegations come in a 250-page document detailing a long list of abuses reported by 833 alleged victims. The document was submitted in January by the UK-based Public Interest Lawyers (PIL) — which represents 412 of the alleged victims, and the European Center for Constitutional and Human Rights (ECCHR).
This probe — which will determine whether the case warrants a full investigation — follows an earlier inquiry which was closed in 2006, and focuses on accusations of systematic detainee abuse that took place in Iraq between 2003 and 2008. The first probe didn't lead to an investigation because the evidence presented at the time did not meet the court's "required gravity threshold," the ICC said in a statement.
"This is an unprecedented and extremely important breakthrough in a ten year struggle for accountability for the criminality that was the UK's detention and interrogation policies in Iraq," Phil Shiner, PIL's lead lawyer, said in a statement. "The prosecutor has recognized that the gravity threshold has been crossed and that accordingly she must investigate thoroughly whether war crimes have been committed."
Iraqi detainees in the UK's custody described systematic torture, including beatings, electrocution, burning, mock executions, and sexual assault. They said they were hooded, exposed to blasting noises, and that they and their families were threatened with violence and sexual violence. They reported being forced to watch pornography and sexual acts between soldiers.
The submitted evidence also included allegations of unlawful killings.
"Based on an initial assessment of the information received, the 10 January 2014 communication provides further information that was not available to the Office in 2006," the court said. "In particular, the communication alleges a higher number of cases of ill-treatment of detainees and provides further details on the factual circumstances and the geographical and temporal scope of the alleged crimes."
This is not the first time allegations of detainee abuse during the Iraq war have surfaced.
United States forces have notoriously been accused of abuses similar to those detailed in the UK document. Human rights advocates had also called for the court to investigate the US in connection to alleged war crimes and the crime of aggression against Iraq.
But the ICC does not have the authority to investigate nonmember states, such as the US, unless prompted to do so by the UN Security Council — an unlikely option when it comes to allegations against Western governments. Iraq is also not a member to the Rome Statute that established the court in 2002, but the ICC has the authority to investigate crimes committed there by nationals of member states, such as the UK.
The UK government denies the allegation that British troops were responsible for systematic abuse in Iraq, and said that it launched its own investigation in 2010. The ICC is only authorized to intervene when it finds that investigations by national authorities are not effective — and British officials are saying they are confident the court won't take the probe further.
"British troops are some of the best in the world and we expect them to operate to the highest standards, in line with both domestic and international law," UK Attorney General Dominic Grieve said in a statement in response to last week's announcement. "In my experience the vast majority of our armed forces meet those expectations. Where allegations have been made that individuals may have broken those laws, they are being comprehensively investigated."
Grieve pledged to assist the court in its investigation and added that the UK "has been, and remains a strong supporter of the ICC."
The human rights groups that submitted the new evidence hailed the court's decision to reopen the case as a "milestone for Iraqi victims and for international criminal law."
"The double standards must come to an end. Those who violate human rights must be brought to justice regardless of how powerful they may be," ECCHR General Secretary Wolfgang Kaleck said in a statement on May 13, in which he also insisted that the investigation should not only be aimed at low-ranking violators. "There must also be an examination of the role of senior military and political figures. They are the ones most liable for the systematic torture carried out. Ten years after the war it is time they were finally held accountable."
The ICC has frequently been accused of double standards.
To date, the court has opened eight investigations — all in African countries — and sentenced one defendant, Thomas Lubunga, whom it convicted of war crimes and sentenced to 14 years for enlisting child soldiers in the Democratic Republic of Congo.
The court opened preliminary examinations like the UK one in a number of non-African countries — including Korea, Afghanistan, Palestine and, more recently, Ukraine. But so far, none of those probes have led to full-on investigations and indictments.
Some critics have expressed hopes that the court's second prosecutor — a native of Gambia, and a woman — will be able to shift the court's focus beyond the African continent. This recommendation was also expressed by the African Union after a controversial ICC indictment of Kenya's sitting president, Uhuru Kenyatta, in relation to alleged crimes against humanity committed in the violent aftermath of Kenya's 2007 election.
But Bensouda, who was sworn into office in 2012, said she is "a prosecutor for all."
"From the very beginning, I was very clear in saying that I am an African, I have been endorsed, but I am a prosecutor for 122 states," Bensouda said last year in an interview with PassBlue, a website that covers UN affairs. "I think the fact that I am from Africa, I wouldn't discount it. I think it helps to some extent… But definitely, I continue to emphasize that coming from Africa does not mean that if atrocities are being committed on that continent the court will not address it."
Follow Alice Speri on Twitter: @alicesperi