The international criminal court has formally abandoned its long-running inquiry into claims that British troops committed war crimes in Iraq between 2003 and 2008.
The ICC prosecutor, Fatou Bensouda, said there was a “reasonable basis to believe” that atrocities such as wilful killing, torture, inhuman/cruel treatment and rape may have been committed by the British armed forces. But she concluded there was no proof that UK authorities blocked any investigations or were unwilling to pursue them.
In a 184-page report, Bensouda’s office laid out the findings of its preliminary examination and announced the case would now be closed and no full-scale investigation would be launched.
The ICC’s scrutiny began in the years after the 2003 invasion of Iraq. It was dropped and then formally reopened in 2014.
Bensouda said: “Following a detailed inquiry, and despite the concerns expressed in its report, the office [of the prosecutor] could not substantiate allegations that the UK investigative and prosecutorial bodies had engaged in shielding [ie blocking inquiries], based on a careful scrutiny of the information before it.”
She said that since 2014, “my office has been rigorously examining allegations of crimes committed by UK nationals in Iraq during the course of the UK’s military involvement in Iraq. In particular, [it] has focused on a subset of allegations related to the mistreatment of Iraqi detainees in UK custody.
“[ICC prosecutors have] previously found and today confirmed that there is a reasonable basis to believe that members of the British armed forces committed the war crimes of wilful killing, torture, inhuman/cruel treatment, outrages upon personal dignity, and rape and/or other forms of sexual violence.”
There had been a “confined number of incidents” that “appear to correspond to the most serious allegations of violence against persons in UK custody,” she said. “[My office] further found that several levels of institutional civilian supervisory and military command failures contributed to the commission of crimes against detainees by UK soldiers in Iraq.”
The establishment of the UK’s Iraq Historic Allegations Team was a response to the “admitted failures of the British army at the time to conduct effective investigations”, she noted.
Bensouda acknowledged the efforts made by UK authorities, “even if at a later stage, in setting specific mechanisms to address these allegations, and the relevant resources placed into investigating the allegations”.
But she observed that despite a decade of domestic investigations, no charges had been brought against any soldiers – “a result that has deprived the victims of justice”.
In a closing sideswipe at the Ministry of Defence, which has repeatedly dismissed claims brought by lawyers over Iraq as invented, Bensouda said: “The fact that the allegations investigated by the UK authorities did not result in prosecutions does not mean that these claims were vexatious.
“At most it means that the domestic investigative bodies could not sustain sufficient evidence to refer the cases for prosecution, or on cases referred there was not a realistic prospect of conviction in a criminal trial.”
If fresh evidence emerged, she said, she would reconsider her decision to close down her inquiries.
The ICC, like many international courts, exists to provide an alternative forum for justice where it is deemed that domestic courts and agencies have failed to fulfil their proper legal functions.
The ICC withdrawal prompted dismay among some civil liberties organisations. Clive Baldwin, a senior legal adviser at Human Rights Watch, said: “The UK government has repeatedly shown precious little interest in investigating and prosecuting atrocities committed abroad by British troops. The prosecutor’s decision to close her UK inquiry will doubtless fuel perceptions of an ugly double standard in justice: one approach to powerful states and quite another for those with less clout.”
The Ministry of Defence has been asked for comment.