Printer FriendlyWar Crimes: Time For Justice?
In one of the recent Haldane Society Human Rights lectures, Phil Shiner and Bill Bowring spoke on the emerging and innovative possibilities of holding war criminals to account.
In a field of law that has sometimes been characterised as ‘victor’s justice’ our speakers’ work shows the difficulties and potential of gaining justice during armed conflict and against occupying powers. Phil Shiner focused on accountability for war crimes, particularly the torture committed whilst Britain was an occupying power in South East Iraq. Bill Bowring spoke about the attempts to bring Israeli generals to justice using universal jurisdiction and his work on Chechen cases in the European Court of Human Rights as well as the attempts to prosecute Donald Rumsfeld. Camille Warren summarises their lectures:
Phil Shiner
While most of the attention in the UK press has concentrated on the abuses by American soldiers at Abu Ghraib and Guantānamo Bay, very little has been reported on the torture committed by British soldiers, despite it being arguably worse in nature.
It is the Human Rights Act 1998 (HRA) that has been the jewel in the crown for accountability for war crimes against British troops. The battlefield for accountability has been fought over attributability and jurisdiction. In the House of Lords in December 2007 in the Al-Jedda case the UK lost an argument that in Iraq, because there was a UN mandate in place, all the actions of UK forces were attributable to the UN and not the UK. The Government had also consistently tried to argue that although international human rights law, through the UN Convention Against Torture (UNCAT), the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR), bind the UK Government, they do not have extraterritorial effect nor are the UN conventions, enforceable by private individuals. However the introduction of the HRA brought ECHR standards on torture ‘home’ into UK law and for the first time a mechanism was formed by which they could be made applicable to UK public institutions in violation of these basic human rights standards. The House of Lords case of R (Al Skeini and others) v Secretary of State for Defence (2007) then found that the Human Rights Act 1998 and the ECHR were capable of applying to acts committed by a UK public authority outside the national territory where in exceptional circumstances the victim was ‘within the jurisdiction of the United Kingdom’ (for example, in detention situations).
In 1972 the then prime minister, Edward Heath expressly prohibited five brutal interrogation techniques, the use of which in Northern Ireland was later condemned by the European Court of Human Rights. They consisted of the use of stress positions, hooding, subjection to noise, sleep deprivation and deprivation of food and drink. It would stand to reason that over 30 years later the knowledge of this ban should have become part and parcel of the culture of the British army.
However in 2003 Iraqi receptionist Baha Mousa died in British detention in Iraq. His postmortem found that he suffered at least 93 injuries at the hands of the Queen's Lancashire Regiment. The MoD has now admitted that it breached the human rights of Baha Mousa and nine other Iraqis and will pay them compensation.* He had been subjected to the five banned interrogation techniques and a video of the Iraqis undergoing ‘stressing’ was made and exhibited at the later court martial proceedings. Despite being aware of the use of these techniques since the head of army legal in Iraq, Nicholas Mercer, condemned their use in 2003, the civil servants at permanent joint HQ first denied knowledge of their illegality and then claimed the 1972 ban only applied in Britain and Northern Ireland.
Nor was the use of these techniques confined to only one battalion. Evidence is now publicly available which proves that UK forces had a systematic policy in place which potentially led to the execution of scores of Iraqis in detention and the torture of countless more. With a policy of detention that reintroduced the banned interrogation techniques permitted at the highest levels, there was very little control or safeguards on individual soldiers. The evidence shows that soldiers had no training in prisoner handling and routinely treated Iraqis as dehumanised objects. And the details are no less horrific than those committed by US troops that so shocked the world.
Both in the Baha Mousa case and other cases, such as the court martial over abuse at Camp Breadbasket in Iraq in 2005, sexual humiliation of detained Iraqis took place. Photos from the Camp Breadbasket court martial show Iraqis forced to simulate oral and anal sex with each other and one of the Baha Mousa survivors was offered release if he agreed to have sex with his sister. There are remarkable similarities between these kinds of humiliating sexual practices and those used by US troops. In fact it appears that a ‘timeline’ in the evolution of such degrading treatment on detainees can be drawn, tracing back to practices used in Northern Ireland in the late 1960s /early 1970s.
A current judicial review claim concerns the incidents that took place at the British Army base in Abu Naji in Southern Iraq on the 14th and 15th May 2004. After a gunfight in the area it appears that 29 Iraqis were taken into detention and that by the next day 20 of these men were dead. The nine survivors complained of torture at the hands of the British soldiers. Video footage of the body bags holding the dead being opened at a local hospital appear to show evidence of horrific incidents of torture and bodily mutilation, and supporting evidence refers to one man with an eye gouged out and another with a severed penis. Witness statements taken from the survivors by Phil and Martyn Day, a solicitor at Leigh Day & Co, describe prolonged screaming from the other captives before no more was heard from them. Whilst at this stage it is impossible to say exactly the details of what took place the evidence is suggestive of the detainees suffering torture before execution.
The prohibition on torture is absolute; it is the most elevated and universal of virtually all human rights prohibitions. It is a jus cogens principle of law which is a principle of international law so fundamental that no nation may ignore it or attempt to contract out of it through treaties. It imposes on each state more than a passive duty not to commit torture but an obligation to do something effective where torture has occurred, whether that is to prosecute or extradite torturers within their jurisdiction, offer reparation to victims or take preventative action.
There are a wide range of international law protections that contain and define the nature of the right not to be tortured. These include article 3 of the ECHR, article 7 of the ICCPR and a variety of protections offered by UNCAT, including the duty of member states to review interrogation procedures and the right to fair compensation for victims. Torture is also defined as a crime against humanity in article 7 of the Rome Statute of the International Criminal Court and a war crime under article 8 of the treaty. It was made a domestic and universal crime in the UK by virtue of s 134 of the Criminal Justice Act (CJA) 1988.
With all these protections in place how can it be that torture by British forces would have gone undetected without the Human Rights Act? The British courts have yet to fully recognise that UNCAT and other relevant UN legislation enshrine enforceable principles of customary international law. Under the CJA 1988 torture can be a crime but it needs an independent investigation to establish what crime was committed by whom. Where military investigations, such as the court martial of Baha Mousa, have been allowed to unearth evidence they have failed to bring about convictions. The conclusion is that the criminal justice system allows very little protection against torture by British troops. The former attorney general Lord Goldsmith declined to pursue prosecution of British troops under the International Criminal Court (ICC) statute. The ICC is nominally meant to investigate independently but when sent a dossier of evidence suggestive of torture of Iraqis by Phil it declined to investigate.
The prohibition on torture then, whilst absolute in name, has been undermined by Government legal advisors, ignored in practice by the army and currently finds insufficient safeguard in criminal or international law, as recognised by the British courts. As matters currently stand, the best chance of holding those responsible for its use, both at an individual and institutional level rests with the safeguards of the HRA.
Postscript: Through the ongoing judicial review claim and the finding that the HRA did apply to detentions in Iraq, the Government conceded on 14th May 2008 to holding a public inquiry into the death of Baha Mousa, the mistreatment of the survivors and the authorisation of the coercive interrogation techniques which lead to the incident.
Phil Shiner is heads Public Interest Lawyers (www.publicinterestlawyers.co.uk). He specalises in environmental litigation, human rights and administrative law and represented the claimants in the Al Skeini litigation.
Bill Bowring
The idea of universal jurisdiction arose after World War Two and was embodied in the Geneva Conventions of 1949. Those guilty of war crimes could be prosecuted where they were or they could be extradited to be prosecuted. The focus was only on very grave crimes and very few people have ever been prosecuted. However there have been examples of bottom-up approaches to enforcing international law.
In September 2005 the former head of Israeli forces in the Gaza Strip, Major General Doron Almog travelled to Britain. Major General Almog then head of Israel's southern command is accused, amongst other things, of bulldozing more than 50 houses in the Rafah refugee camp in the Gaza Strip. Word of his visit had reached the Palestinian Centre for Human Rights in Gaza, who was working with solicitors Hickman and Rose in London, applied to the Bow Street Magistrates Court for an arrest warrant. One was granted on suspicion of committing a breach of the Fourth Geneva Convention 1949 – ‘extensive destruction of property not justified by military necessity and carried out unlawfully and wantonly’ which is a criminal offence in the UK under the Geneva Conventions Act 1957.
The arrest never happened as before Major General Almog left his plane at Heathrow airport he was tipped off that he would be detained and stayed on board the jet until it returned to Israel some two hours later. The police – who denied being the ones to tip off the Israeli military attaché – refused to board the plane, stating a fear of a shoot out with armed El Al air marshals, despite being in an aircraft offering no immunity from arrest when on British soil. Subsequently Israeli foreign minister Silvan Shalom described the incident as an ‘outrage’ and the then UK Foreign Secretary Jack Straw apologised for any embarrassment caused.
Both the United States and Britain have strongly resisted the idea that their troops could be prosecuted for war crimes with Lord Goldsmith saying to army officers ‘We strongly take the view that no British service personnel will appear before the International Criminal Court (ICC) as its jurisdiction only applies if a nation is unwilling or unable to investigate [allegations of war crimes]’. However in 2004 Bill formed part of a panel of international lawyers and academics who investigated the question: ‘Is there sufficient cause and evidence for the International Criminal Court prosecutor to investigate members of the UK Government for breaches of the ICC statute in relation to crimes against humanity and/or war crimes committed during the Iraq conflict and occupation 2003?’ Their conclusion was yes, that in relation to the use of cluster bombs around urban areas there was cause for the ICC to investigate, as the bombs are indiscriminate and can kill civilians long after conflict ceases. The evidence from the panel was sent to Luis Moreno- Ocampo, the ICC's chief prosecutor but only a perfunctory reply was ever received. Mr Moreno-Ocampo has only investigated war crimes in Africa at the ICC, a situation that is shocking given the many war crimes committed around the world. In accountability for war crimes there should be no place for political might to determine justice.
There have been two serious attempts to prosecute Donald Rumsfeld, one in London and one in Germany. The European Centre for Constitutional and Human Rights, with the New York Centre for Constitutional Rights asked German prosecutors to investigate allegations of torture against Mr Rumsfeld on behalf of Iraqi citizens who were tortured while detained at Abu Ghraib and other US detention centres. The German authorities declined to investigate on the basis that the US would carry out its own full investigation.
Then in October 2007 the French League for Human Rights heard that Rumsfeld would be in Paris and quickly got the papers from the German attempt to prosecute. Under French law the authorities have to investigate when a torturer is on French soil. However the French prosecutor said they had advice that heads of state and ministers had immunity even when they were out of office. This advice has no legal basis and an appeal against the decision not to investigate was lodged in February 2008.
Another group Bill has been involved with, is the the European Human Rights Advocacy Centre (EHRAC), whose primary aim is to assist individuals, lawyers and non-governmental organisations within the Russian Federation and Georgia to take cases to the European Court of Human Rights. In one recent case a refugee column was bombed after Russian forces had authorised its movement from Grozny, with extensive use of heavy weapons in areas where they knew civilians were. In such a case an important question is do we argue international humanitarian law or human rights law? The answer should always be human rights law. In that case it was held that the Russians had attacked indiscriminately and two generals were named as having committed war crimes. The Council of Europe emphasised to Russia that under interntional law the generals must be investigated but instead one of them has since been promoted.
So although these various attempts at enforcing international law against war crimes have not achieved prosecution they have had the effect that certain people are being advised that it is not wise to travel and some material support has been given to survivors. Of course this is not enough but when it is states who must prosecute and states who commit these crimes it is so difficult to have these atrocities brought to justice. It does show however what committed lawyers can achieve when they try.
Bill Bowring is Professor of Human Rights and International Law at Birkbeck College, the University of London and International Secretary of the Haldane Society.
This article can be found in the print edition of Socialist Lawyer number 50, September 2008.
