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Individualisation of State War Crimes

This week we discuss the critique of the Iraq Historic Allegations Team (or IHAT) that it failed to ‘bring justice’ and address the atrocities committed by British troops against Iraqi civilians during the Iraq war. The IHAT investigation lasted from 2010 until its subsequent dissolvement in 2018, running largely in parallel with the Iraq ‘Chilcot’ Inquiry. This post reflects upon an archival Guardian podcast episode from 2018 titled “Why we may never know if British troops committed war crimes in Iraq” and considers the limitations of international criminal justice and legal forms of individualisation in addressing war crimes committed by state soliders.

IHAT was established by the British government under former Labour Prime Minister Gordon Brown in 2010 but was swiftly taken over by the Conservative Prime Minister David Cameron. Its aim was to investigate claims of abuse by Iraqi civilians but “after [IHAT’s] collapse” many feared that “the truth will never come out”. This idea of state sense-making institutions — such as IHAT and public inquiries — ‘uncovering the truth’ implies that these institutions can meaningfully recover past events and attribute responsibility. Our project demonstrates, however, that a focus on a few ‘bad apples’ precludes systemic reform or structural change. The demise of IHAT poses the vital question of accountability. IHAT’s legal methodology restricted its staff from addressing the wider question of responsibility for crimes committed by the British military, preventing it from examining the systemic cracks and focusses solely on prosecuting individual soldiers for their actions on the ground. Many have criticised the Team for focusing on lower-level officers and soldiers in these legal proceedings, rather than those higher in the chain of command. This focus on field-based, lower-level behaviours may have obscured the responsibility of those who cultivated cultures of militarism and violence at the decision-making level. IHAT’s methodology necessarily prioritised the legal threshold for field-based evidence of war crimes, thus implicating soldiers on the ground and passing all responsibility onto those following orders or influenced by militaristic cultures. 

Commentators identified numerous flaws with the IHAT strategy, from the damage inflicted upon those prosecuted to the victims expecting apolitical justice and ‘truth’ from a state-led institution. These criticisms also reflected on the difficulty of holding accountable those responsible for war crimes. Crimes committed by invidividuals serving as part of a state military have long presented complex legal challenges (from Nuremberg to William Calley Jrs.’s trial following the My Lai massacre). This complexity is expensive. The fact that IHAT investigations cost the taxpayer £34 million and failed to bring forward a single prosecution provoked uproar in the British media. However, as highlighted in the Guardian podcast, behind the headlines slating ‘corrupt lawyers’ for seeking to damage individual soldiers’ — or, ‘our boys’ — livelihoods, IHAT was under political pressure from state departments to take a conservative approach to prosecutions against soldiers. As the Guardian reported, “Both military advocates and human rights defenders agree that the scandal around IHAT was at the very least, politically convenient for the Ministry of Defence.” Casting the lawyers of the investigation as villains who sought to “throw the uniform [soldiers] under the bus”, made it possible for the MoD to avoid uncomfortable questions.

IHAT’s operations relied upon decades of precedent in international criminal law. Questions of accountability remained unanswered in the IHAT legal proceedings despite the fact that Britain ratified the Rome Statute when it joined the ICC in 2001 and thus agreed that, “generals and even politicians are potentially liable for systematic abuses by British soldiers”. Diplomatic immunity for state officials – such as heads of state – has, however, remained a complicated aspect of ICC proceedings (see, for instance, the case of al-Bashir and Sudan). Examples of IHAT cases under investigation included instances of torture tactics inflicted upon Iraqis, which would have violated the the Geneva Conventions (signed in 1949). However, at the time of the Iraq war, British training manuals contained no mention of these prohibitions under the Geneva Conventions and in some cases, soldiers may have been either acting upon the orders of their superiors or without knowledge of the consequences of their actions.  

Andrew Williams has argued that the investigative process into war crimes is fundamentally flawed and has explored more appropriate solutions moving forward. He has suggested that the “first order principles of practicability, expertise, and investigator independence should provide the non-negotiable foundations of any response”, in addition to upholding “promptness, adequacy, reasonable transparency, and respect for basic standards of justice”. Williams states that maintaining these non-negotiable foundations “would provide a fairer process for all participants (accused, victim and the wider national and international communities” (Williams, 2020). Maintaining these norms in the IHAT proceedings would have avoided breaches of these foundations, such as lack of transparency. For example, the case of soldiers not being informed by their commanding officers that they were under investigation led to soldiers believing they had been sold out by the military to which they had dedicated their lives. Keeping individuals in the dark of proceedings until it was too late prioritised the protection of the military and Ministry of Defence, thus preventing the institution from having to reform its structures or open its records. 

The Warnings from the Archive project examines how state accountability must always remain a primary goal of institutional sense-making following conflict as it encourages a deeper investigation into the cultures which facilitate these crimes and atrocities. To ignore state responsibility (through unequal structures or racialised cultures of violence) perpetuates the idea that a small group or individual’s behaviour has no correlation with typical state military action – also known as the ‘bad apple(s)’ thesis. Through our work, we highlight the limitations of international criminal law and the state’s protection of the status quo via state-led inquiries and tribunals, as highlighted by Williams.

Further Reading:

https://www.cambridge.org/core/journals/legal-studies/article/abs/war-crimes-allegations-and-the-uk-towards-a-fairer-investigative-process/971D016004ED784A7BCE5E573501DEC1#

Andrew Williams, ‘The Iraq abuse allegations and the limits of UK law’ (2018) Public Law vol 2018(3) Available at: https://www.sweetandmaxwell.co.uk/Product/Administrative-Law/Public-Law/Journal/30791427#okay-to-continue

Andrew Trevor Williams , ‘The Chilcot report and the law’ (2016) The Political Quarterly vol 87(4) Available at: https://onlinelibrary.wiley.com/doi/10.1111/1467-923X.12301

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