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Home EJIL Article Discussion Complementarity (in)action in the UK?

Complementarity (in)action in the UK?

Published on December 7, 2018        Author: 
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Editor’s Note: This post is part of our Joint Symposium with Justice in Conflict on Human Rights Watch’s Report, Pressure Point: The ICC’s Impact on National Justice 

In response to the 2014 re-opening of an International Criminal Court (ICC) preliminary examination into the situation in Iraq, Britain put in place legal measures to address the alleged crimes committed by UK forces in Iraq currently being examined by the ICC. These measures include a specialized investigatory unit, known as the Iraq Historic Allegations Team (IHAT), replaced last year by a smaller service police investigation, known as SPLI. British authorities argue that their efforts represent “a clear demonstration of complementarity in action”, therefore precluding an ICC investigation.

In Pressure Point – a recent research report by Human Rights Watch (HRW) investigating the claims made about positive complementarity in four case studies, including the Iraq / UK situation – HRW rightly paints a more murky picture of the legal processes in Britain as well as the ICC’s ability to influence them. Indeed, HRW observes that legal responses in Britain have been “piecemeal, ad-hoc, and almost exclusively driven by the efforts of individual victims, their families, and legal representatives”. It also concludes that the ICC’s examination “neither catalyzed national investigative activities in the UK, nor impacted the existing domestic structure established to address allegations of abuses by British armed forces in Iraq” in any significant way. My own research similarly points to significant challenges in making positive complementarity work in the Iraq / UK situation.

In this post, I consider some of the key challenges for ensuring positive complementarity in Britain and reflect on what this tells us more broadly about the ICC’s complementarity regime.

Three challenges for making complementarity work in the UK

1. Lack of outcome of long-lasting investigations

First, despite multiple long-lasting investigatory processes in Britain, there has been very limited success in holding to account those responsible for crimes in Iraq. It is important to note that the UK is indeed conducting criminal investigations into the Iraq claims – and has done so for years. The problem is therefore not one of ‘inactivity’, but rather that this activity doesn’t seem to lead anywhere. The IHAT process – on-going for seven years and costing well above 50 million Pounds – did, as HRW notes, “not lead to a single prosecution”. With a caseload that has been mysteriously reduced from several thousand cases to “around 20”, there is little to suggest this will change under SPLI.

One reason why cases are not taken forward could simply be that IHAT/ SPLI were never equipped to do so. In his review of IHAT, Sir David Calvert-Smith emphasized that investigations have been carried out by investigators with “no experience of policing the Army and, although of course familiar with the other ordinary criminal offences, unfamiliar with the concept of a ‘war crime’”. My own research points to a variety of structural issues that appear to have resulted in inefficient investigations.

An “unjustified delay in the proceedings” is one factor that the ICC Prosecutor considers in the admissibility assessment at the preliminary examination stage. But as I argue elsewhere, it is a hard choice for the Prosecutor to proceed with an investigation when States with sophisticated legal systems are able to demonstrate that some form of criminal investigation into the conduct of their armed forces remains on-going, even if this investigatory activity is long-lasting. The very limited transparency surrounding accountability measures in Britain, especially since SPLI took over investigations in 2017, only exacerbates these challenges.

2. Lack of attention to systemic and systematic issues

Second, criminal investigations in Britain were never structured in a way to effectively address the systemic issues underpinning crimes allegedly committed in Iraq. Despite efforts by the ICC Prosecutor to see IHAT/ SPLI address the alleged systemic nature of abuses, domestic criminal justice mechanisms appear to have taken a case-by-case approach. As Samira Schackle explains in a recent article in Guardian: “Crucially, IHAT was set up in such a way that it could not address wider questions of accountability. Rather than considering systemic problems, it was limited to prosecuting individual soldiers”.

IHAT was originally established to satisfy the requirements under human rights law to investigate allegations of Article 2 and 3 violations. This justifies a case-by-case approach. But as Andreas Schuller of the European Center for Constitutional and Human Rights noted in an interview with me, “if you also want to use IHAT to make ICC cases inadmissible, then you would have to frame it differently”. Even though HRW suggests that the ICC’s examination had some impact on the working methods of investigatory mechanisms in Britain, a fundamental re-structuring to satisfy the demands of international criminal law never transpired.

This is not surprising given that British authorities have categorially rejected the idea that abuses in Iraq were connected to broader policy issues. Former Foreign Secretary William Hague explains that the “government has always been clear and the armed forces have been clear that they absolutely reject allegations of systematic abuses by the British armed forces”.

A “deliberate focus of proceedings on low-level or marginal perpetrators despite evidence of those more responsible” is a factor taken into account by the ICC Prosecutor in the admissibility assessment at the preliminary examination stage. However, because the scope and ultimate outcome of on-going national proceedings is surrounded by a degree of uncertainty, as I argue elsewhere, the existence of such proceedings may work to delay the Prosecutor’s complementarity assessment.

3. Political interference and a lack of commitment to accountability

Third – but connected to both of the above points – the British leadership, or at least parts of it, appears to think of domestic investigatory units as an annoying but necessary means to avoid further escalation of the ICC’s intervention, rather than a way to genuinely promote accountability for crimes in Iraq.

Politicians, government officials and military leaders have frequently voiced their dissatisfaction with investigations being undertaken into the Iraq claims. For example, Bob Stewart, a member of the Commons Defence Sub-Committee, explains in plain terms: “IHAT is irksome, irritating and upsetting for the Armed Forces”.

It seems clear that one central rationale for allowing IHAT to continue its work (until June 2017 when it was replaced by SPLI) was to avoid the opening of an ICC investigation. As Mark Lancaster, then Parliamentary Under-Secretary of State for Defence Veterans, Reserves and Personnel, explained“[IHAT] was set up for entirely the right reasons. Without having [IHAT], potentially our troops could have been subjected to inquiries by the International Criminal Court”. Or in the words of former Secretary of State for Defence, Michael Fallon:

If we were unable to demonstrate that these [criminal allegations] were being properly investigated, we could have ended up […] opening the way to the International Criminal Court. That would have got us into a far more difficult situation”.

More broadly, the steps taken domestically to address the Iraq claims have faced immense political opposition – and, some suggest, even been marred by a level of political interference. As HRW observes, questions were raised from the outset as to whether IHAT was “sufficiently independent”. Pressure on the independent functioning of investigatory units only became clearer as time passed. As HRW’s report explains: “The IHAT’s slow pace of work and its limited output, combined with mounting accusations in the wake of the Al-Sweady Inquiry report that the law firms bringing claims linked to abuses in Iraq are representative of ‘an industry of vexatious allegations,’ generated criticism from government ministers, parliamentarians, other officials, and the public, putting increased pressure on the IHAT to expedite its work”.

Not only have decision-makers in Britain made clear their frustration with domestic investigatory mechanisms, many of them also directly challenged the lawyers who helped bring cases to these legal bodies. For example:

  • Prime Minster Theresa May has stated: “We will never again — in any future conflict — let those activist left wing human rights lawyers harangue and harass the bravest of the brave, the men and women of our armed forces”.
  • Former Prime Minister David Cameron promised to “crack down on spurious legal claims”, and stated: “I want our troops to know that when they get home from action overseas this government will protect them from being hounded by lawyers over claims that are totally without foundation”.
  • Member of the Commons Defence Sub-Committee Bob Stewart observed: “Not only do we have civilian battlefield ambulance chasers, we now have MoD battlefield ambulance chasers. I’m fed up with our soldiers being chased and harassed and intimidated after they have put their lives on the line”.

It is not clear to what extent the ICC Prosecutor takes into account statements of this nature in the context of the complementarity assessment, but it is worth mentioning that the Prosecutor’s 2017 report on preliminary examination activities takes note of the fact that IHAT was closed “amid concerns of political interference”.

How seriously does Britain take the possibility of an ICC investigation?

Even if there are real concerns about the working methods of some lawyers involved in assisting Iraqi claimants, the above analysis points to a broader problem of lack of support among British decision-makers for accountability principles in times of armed conflict. This is also illustrated by a recent proposal to introduce a statute of limitations covering crimes committed in armed conflicts. In the absence of political commitment, it is hard to imagine that complementarity will ever come into action in the Iraq / UK situation. Political priorities can obviously change, but in this case they are unlikely to do so unless the perception of risk associated with the ICC’s intervention dramatically changes.

On this note, HRW emphasizes:

“Several individuals interviewed for this report described a palpable confidence on the part of British authorities vis-à-vis the limited likelihood of a formal ICC probe, which may have limited the concrete effects of the reopened examination. These individuals—a lawyer, a journalist, and an NGO representative — indicated that many officials believe that the prospect of prosecution in The Hague was ‘very far-fetched’ and that the ICC’s engagement would not likely escalate into a formal investigation. Representatives of one NGO argued further that British authorities seemed “more concerned about negative domestic court judgments rather than the ICC.”

As it seems, it was perceptions like these concerning the likelihood of an ICC investigation that last year led the Common’s Defence Sub-Committee to recommend that IHAT be closed:

“We are not convinced that the International Criminal Court would commit to investigate such a large case load which is based, to a great extent on discredited evidence. While due process must be seen to be done, we recommend that the MoD presents a robust case to the ICC that the remaining cases would be disposed of more quickly and with no less rigour through service law rather than IHAT”.

It is hard to view the Committee’s recommendations as anything but a significant blow to positive complementarity. Plainly, the political costs associated with keeping IHAT alive were seen to outweigh the risk that an ICC investigation will be opened.

Of course, perceptions concerning the likelihood of ICC investigation could potentially change. So far, however, little suggests that the ICC Prosecutor’s decision to proceed to Phase 3 of the preliminary examination, where complementarity is in the spotlight, has led to any substantial change in Britain’s legal responses to crimes in Iraq.

Is the value of positive complementarity overstated?

My own research suggests that the ICC Prosecutor is likely to view a ‘best case scenario’ to be one where the Iraq / UK preliminary examination can ultimately be terminated with reference to the existence of a genuine domestic accountability process in Britain. Not only would this provide a much needed success story about positive complementarity; it would also help avoid another direct confrontation with a major power – in this case a key supporter of the Court. However, as this post argues, such a situation is unlikely to materialize, at least in so far as the leadership in Britain does not experience additional substantial pressure arising from ICC activities.

Despite some evidence that the ICC’s examination impacts decision-makers in Britain, the Iraq/UK situation implies that mainstream assumptions concerning the value of positive complementarity may be overstated, at least in situations involving States with significant resources. Indeed, the ICC’s complementarity regime, typically viewed as something inherently ‘good’, may present significant challenges for advancing accountability in situations involving such States. These States have unique opportunities to bring into play the complementary regime in ways that are detrimental to accountability, including by framing domestic legal processes so as to prolong or otherwise frustrate the pursuit of accountability for those who bear the greatest responsibility for international crimes.

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8 Responses

  1. Roger O'Keefe

    Dear Thomas

    In your post on UK investigations into allegations of war crimes by UK forces in Iraq, you refer to ‘a caseload that has been mysteriously reduced from several thousand cases to “around 20”’. I suspect the answer to your ‘mystery’ can be found here:

    http://www.gov.uk/government/publications/al-sweady-inquiry-report

    http://www.newlawjournal.co.uk/content/pils-phil-shiner-struck

    ‘Comment is free, but facts are sacred.’ (CP Scott)

    Best wishes

    Roger O’Keefe

  2. Thomas Hansen

    Roger, it seems you are buying into the logic that because of misconduct of some lawyers (involving paying Iraqi middlemen), all the claims brought by those lawyers are necessarily without any merits. Given the number of cases forwarded to IHAT by that one law firm whose lawyers were found to having acted in breach of UK rules, even if that was to be assumed true it remains a mystery how the Defence Secretary upon announcing the closure of IHAT arrived at a number of “around 20 cases”: https://www.wired-gov.net/wg/news.nsf/articles/IHAT+to+close+at+the+end+of+June+06042017091539?open

  3. Roger O'Keefe

    Dear Thomas

    No, I am not buying into the logic that ‘all the claims brought by those lawyers are necessarily without any merits’. With respect, this reductio ad absurdum is just silly. Nor does the statement from the MOD, for which you provide the link, go anywhere near that far. It says: ‘The exposure of the dishonesty of Mr Shiner meant that many of the allegations that his now defunct firm, Public Interest Lawyers, had brought forward were discredited’. It further states that ‘a significant number of claims made against [UK] soldiers have not been credible’. Note the words ‘many’ and ‘a significant number’. Clearly at least 20 of the claims ring enough alarm bells for IHAT to have pursued them.

    I am merely suggesting what should, with respect, be rather obvious, namely that serious misconduct, proven to the criminal standard, on the part of the lawyers filing the claims ought to put the fair-minded observer on notice that the original figure of several thousand claims is to be taken with a large grain of salt. A pay-per-claim system provides an incentive for a middleman or middlewoman to inflate the number of claims that he or she is able to ‘provide’ to the lawyers, and even a cursory perusal of the collected statements of claim reveals many that bare more than contextual similarities to each other.

    Best wishes

    Roger

  4. Marko Milanovic Marko Milanovic

    Hi Roger,

    If I can butt in on this – you obviously do have a point that there has been SOME misconduct on the part of ONE solicitor and his firm with regard to representing overseas claimants allegedly harmed by British armed forces. But this does NOT in any way prove an overarching narrative – peddled quite forcefully and pervasively by the British government – that the vast majority of such cases are vexatious and unfounded, and that ‘our boys’ (and girls) and being persecuted by ambulance-chasing human rights lawyers. This is something repeated over and over by British ministers, and frankly is just nonsense. And the government has clearly used various tools at its disposal, including cuts to legal aid and misconduct allegations against lawyers representing such claimants, to deter that type of litigation in the future. Moreover if we’re talking about Public Interest Lawyers let’s not forget the UK government’s accusations against a different law firm, Leigh Day, who were ultimately cleared of any wrongdoing: https://www.theguardian.com/law/2018/oct/19/regulator-loses-appeal-against-law-firm-leigh-day-over-iraq-war-claims

    https://www.lawgazette.co.uk/news/sra-plans-u-turn-on-revealing-costs-of-leigh-day-case/5068640.article

    Best,

    Marko

  5. Roger O'Keefe

    Dear Marko

    I am not trying to prove an overarching narrative, even less the narrative that ‘”our boys” (and girls) [are] being persecuted by ambulance-chasing human rights lawyers’. Again, this is an inaccurate, indeed unfair characterisation of what I have written and strikes me, with respect and in friendship, as somewhat hysterical.

    That said, it does appear to be that a considerable majority of the original claims were indeed unfounded, although this does not as such make them vexatious, something on which I am not in a position to comment. (A claim can fail for want of evidence but still have been filed in good faith.) Indeed, were there anything like several thousand credible cases among the original claims, one is left wondering why the OTP of the ICC has continued to sit on its hands.

    As for what various government spokespeople have said, they would, wouldn’t they? But the leap from rhetoric to interference ought to be proved.

    There may well be more credible cases than the 20 mentioned. I have no idea. All I am saying is that it can hardly be considered a ‘mystery’ why the number of credible cases sits currently at 20. In other words, the vague implication of some sort of systemic cover-up is not immediately convincing, which is not to say that it may not turn out – perhaps on the expiration of the 30, 70 or 100-year rule – to be correct.

    All the best to you and Thomas

    Roger

  6. Marko Milanovic Marko Milanovic

    To be clear Roger, I was not saying you were arguing in favour of the UK government’s narrative, but it did appear that you were on the verge of buying into it. And there is no doubt that this is indeed the government’s narrative – see, e.g., the statements made by the prime minister and the secretary of state for defence re the whole idea of UK derogating from the ECHR: https://www.ejiltalk.org/uk-to-derogate-from-the-echr-in-armed-conflict/ . And it was the MoD who brought the complaints against Shiner and Leigh Day in the first place.

  7. Thomas Hansen

    Dear Roger,

    My reply was to your comment which seemed to be that I am mistaken in writing the caseload “mysteriously” reduced to “around 20”, which is the number mentioned by the Secretary of Defence in the link I inserted (and that link was intended to support simply that…). Your first comment seemed to imply the answer to the “mystery” of how the cases were reduced to around 20 cases could be found in the links you inserted, which were to the proceedings against a PIL lawyer and the Al-Sweady inquiry…So I naturally took it that you agree with the narrative which, as Marko sets out, has forcefully been put forward by various government representatives and others, which does indeed attempt to create a connection between the proceedings against PIL, the closure of IHAT and the subsequent reduction of cases. My argument is simply that this logic – as you seem to agree in your second comment – is flawed, and that whether cases under examination deserve further scrutiny must depend on an assessment of the actual evidence, not the methods used by lawyers to gather that evidence, though of course I agree the methods used may have some impact on how these cases are approached. So, to me the mystery will remain a mystery, unless you or someone else can point me in direction to material that clarifies how the Minister arrived at the number of 20 on the day he announced the closure of IHAT.

    More generally, the lack of transparency by government agencies working on the Iraq claims, in particular SPLI, coupled with attacks on the lawyers involved in these cases, is in my view hugely problematic for a democracy.

    Best,
    Thomas

  8. Roger O'Keefe

    Thanks to both. I am glad we are more or less singing from the same carol sheet.

    By the way, my second comment ought to have read ‘bear’, not ‘bare’, at least in relation to those cases not involving strip-searches!

    Best to both

    Roger

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