In a week where torture has been high on the agenda, the second public inquiry (Al Sweady) into alleged British abuses in Iraq has issued its report into allegations of abuse concerning a 2004 incident, finding a mixed picture. Some of the most serious allegations, including those of unlawful killing, had previously been withdrawn and the inquiry rejected the claims of torture.
But many questions remain for the Ministry of Defence (MoD) to explain, not least why this inquiry was necessary in the first place –the government set it up in 2009 after the MoD had failed first to set up its own independent investigation and then to disclose evidence, behavior which a court had called “lamentable.” Disturbing incidents of ill-treatment of detainees are set out in the report, such as the use of sight and sleep deprivation – two of the notorious “five techniques” of abuse that the UK government of 1972 announced it had banned. Even greater concerns remain about how the MoD has addressed the hundreds of other allegations of British abuses in Iraq. Despite paying out large sums of money in damages to Iraqis, effectively admitting some serious abuses took place, nothing suggests the MoD has changed policies to end the risk of abuses in the future or accept a full, public accounting of what happened in Iraq.
The MoD still seems unwilling to have a comprehensive public inquiry that would address all the allegations, and be able to assess whether MoD policies contributed to abuse. One key issue remains the UK government’s refusal to accept that during civil armed conflicts, such as the post-Saddam fighting in Iraq, basic principles of human rights law apply to military detention outside the UK – including that every detainee should be brought before a judge or equivalent, and all military detention centers be open to independent inspection, something it resisted in Afghanistan.
The British justice system still needs to show it can apply the same standards Britain demands of others in prosecuting war crimes. Earlier this year, after receiving hundreds of detailed allegations of British war crimes in Iraq, the prosecutor of the International Criminal Court reopened a preliminary examination, the only one involving allegations against Europeans. Before deciding whether to go further, the prosecutor needs to consider whether the British justice system – military and civilian – has and will credibly investigate war crimes up to the highest level responsible. A decade on from the alleged crimes, the British justice system has still not shown itself capable of doing so. Most notably, neither military nor civilian prosecutors appear to be applying the principle of command responsibility, which makes military and political commanders criminally responsible for war crimes committed by subordinates if they should have been aware of the crimes and failed to prevent or prosecute them. Despite the hundreds of allegations, there is no evidence that senior military figures, and the politicians in charge of the armed forces at the time, have been investigated, yet alone prosecuted. Even the 2011 conclusions of the Baha Mousa public inquiry, which found an Iraqi hotel receptionist had been beaten to death in a British detention center in 2003, have not led to any new prosecutions.
The Al Sweady inquiry is the second such inquiry, forced on the MoD under the Human Rights Act, which requires allegations of torture and similar abuses to be publicly investigated. The Conservative party’s proposals to severely weaken human rights protection include a suggestion that British armed forces and officials should be immune from having to comply with human rights law once they cross the English Channel. But the hundreds of allegations of war crimes and other abuses stemming from the British involvement in Iraq will not disappear unless and until the British justice system shows itself capable of investigating them to the highest level. If not, the court in The Hague will need to step in.