Complementarity (in)action in the UK?

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.