Detainee Abuse During Op TELIC

'A Few Rotten Apples'?

Timothy Wood

• Publisher: Palgrave Macmillan
• Year: 2015
• Print ISBN: 9781137588791
• eBook ISBN: 9781137588807
• Topic: Politics & International Relations
• Subtopic: Comparative Law
• Index: Politics & International Relations

This book reviews the nature of the alleged abuse committed by the UK military forces, exploring the legal paradigm in which the abuse allegedly occurred; the morality of those accused; and the robustness of the accusation of a 'policy of abuse'.

1

ECCHR/PIL Allegations of Abuse by British Personnel

Abstract: The satisfaction of the jurisdictional criteria of the International Criminal Court, including specific and general gravity ‘tests’ and ‘inability or unwillingness genuinely to investigate or prosecute’, is reviewed. The Office of the Prosecutor’s decision to open a preliminary examination into the situation in Iraq and the reaction thereto is set out. The alleged abuse of detainees, at every phase of interaction with British personnel, is analysed, including extracts of witness testimony. The alleged use of prohibited interrogation techniques is reflected upon in the context of the Joint Forward Interrogation Team (JFIT). The role and tasks of the Iraq Historic Allegation Team and the supporting role of the Iraq Historic Allegations Prosecution Team (IHAPT) are summarised, including challenges to independence, partiality and capability.

Keywords: conditioning; detention operations; ‘harshing’; IHAT; JFIT; shock of capture

Wood, Timothy. Detainee Abuse During Op TELIC: ‘A Few Rotten Apples’?. Basingstoke: Palgrave Macmillan, 2016. DOI: 10.1057/9781137588807.0006.

On 10 January 2014, ECCHR and PIL submitted a joint communication to the Office of the Prosecutor (OTP) of the ICC alleging that

[h]undreds of abuse allegations, spanning across time, technique and location indicate that the UK military had a sustained policy of committing abuse against Iraqi detainees in order to prepare them for interrogation.

As a result, the OTP was called upon

[t]o open formal investigations into the UK regarding those most responsible for these abuses, as the UK has failed to sufficiently investigate and prosecute its high ranking civilian and military officials for ‘systemic abuse’ against detainees during the UK’s presence in Iraq [which] meets the threshold of war crimes.¹

The narrative to the submission of the communication is carefully crafted. In February 2006, the OTP declined a similar submission to open a preliminary examination of alleged war crimes by coalition forces in Iraq. Luis Moreno-Ocampo, Chief Prosecutor of the ICC, was prepared to conclude ‘that there was a reasonable basis to believe that crimes within the jurisdiction of the Court had been committed, namely wilful killing and inhuman treatment’.² However, because the submission received by the OTP contained insufficient information pertaining to a plan or policy or a large-scale commission of the war crimes of wilful killing and inhuman treatment,³ and the numbers of purported victims in Iraq were insufficient by comparison to other investigations being undertaken by the OTP at that time,⁴ Moreno-Ocampo concluded that ‘the Statute requirements to seek and authorisation to begin an investigation in Iraq have not been satisfied’.⁵

Although he declined to examine the situation in Iraq in 2006, Moreno-Ocampo did provide some succour to interested parties by stating that his conclusion ‘can be reconsidered in the light of new facts and evidence’. He reminded all concerned, however, that ‘effectively functioning national legal systems are in principle the most appropriate and effective forum for addressing allegations of this nature’.

The recent ECCHR/PIL communication to the ICC deliberately and purposively sets out how the applicable thresholds are now satisfied. Mention is made of over 400 Iraqi ‘former detainees’ bringing allegations of ‘grave mistreatment’ during the period 2003–2008 and that the detainees ‘were typically subjected to abuses in order to prepare them for interrogation’. To overcome the obstacle of the complementary jurisdiction of the ICC, it is asserted that

[p]roceedings within the UK have been lacking in number, and in quality. UK officials have been all too reluctant to prosecute or investigate the high ranking officials for the systemic abuses committed in Iraq.⁶

The communication to the ICC marks a culminating point in ECCHR and, particularly, PIL’s efforts to bring to light alleged sustained and widespread abuse perpetuated by British personnel in Iraq and to identify and hold to account those ‘most responsible for these crimes’. The decision of the OTP to open a preliminary examination into the situation in Iraq was therefore welcomed by the authors of the communication. Nevertheless they re-emphasised that the preliminary examination should not be limited to rank-and-file soldiers,

There must also be an examination of the role of senior military and political figures. They are the ones most liable for the systematic torture carried out. Ten years after the war it is time they were finally held accountable.⁷

In making its announcement to re-open the preliminary examination, the OTP was precise in its choice of language, focusing on the criteria set out in the Rome Statue,

The 10 January 2014 communication provides further information that was not available to the Office in 2006. In particular, the communication alleges a higher number of cases of ill-treatment of detainees and provides further details on the factual circumstances and the geographical and temporal scope of the alleged crimes.⁸

The decision of the OTP to open (or re-open) a preliminary examination against a Western democratic state is unprecedented. Yet, officially, the British government also welcomed the decision with the Attorney General asserting, ‘As the minister responsible for overseeing the UK’s prosecutors, I also understand the importance of the ICC prosecutor following the proper legal procedures when complaints are made’. However, the Attorney General was at pains to emphasise that ‘[t]he government completely rejects the allegation that there was systematic abuse carried out by the British armed forces in Iraq’.⁹

The ECCHR/PIL communication refers to the accounts of 109 victims (or complainants) with 85 cases, including 2,193 separate allegations of abuse.¹⁰ The complainants report 145 different techniques of abuse. Subsequent to the preparation of the communication PIL reported that the number of cases had increased to 412 with an exponential increase in the number of potential allegations, from hundreds to thousands.¹¹ Culpability for the alleged abuse is explicitly placed at the feet of two groups but is addressed thematically within the communication. The central drivers for the communication are as follows:

‘Systematic abuse perpetrated by UK Services Personnel in Iraq from 2003 to 2008’; and

‘Criminal responsibility of UK officials’, which includes senior military commanders, public servants and politicians including the Secretary of State for Defence.

The communication also includes sections that delineate the historical development of the UK’s approach to interrogation; legal analysis of alleged war crimes; and issues of jurisdiction and admissibility pertaining to the ICC. It is not the intent of this book to examine or critique the legal or factual arguments as presented in the communication; that task falls to the Ministry of Defence and others when responding to the questions of the OTP. Instead, this book will focus on the role of British personnel in the alleged abuse of Iraqi citizens and the insinuation of a policy of abuse.

It is averred that once an Iraqi civilian was targeted by a detention operation they were at risk of abuse throughout their interaction with British personnel. This included a number of different phases: initial arrest; transit to a Brigade Processing Facility (BPF); tactical questioning; transit to the Divisional Temporary Detention Facility (DTDF) or the Divisional Internment Facility (DIF);¹² and detention and interrogation by personnel from the Joint Forward Interrogation Team (JFIT). Each phase will be scrutinised in turn.

Initial arrest. It is purported that the priority of British personnel during ‘arrest operations’ was to maximise and maintain the shock of capture ‘in order to later exploit its effects on the detainee for the purpose of extracting information during initial rounds of tactical questioning and interrogation’.¹³ Witness accounts emphasise the use of gratuitous violence and wanton destruction, which continued beyond the point of arrest.¹⁴ This manifested as severe physical assaults; sensory deprivation (the use of hoods, blindfolds and ear defenders); burning and electric shocks; the over-zealous use of plasticuffs; humiliation; and threats of physical violence and death.¹⁵

Example excerpt from witness testimony:

The soldiers shouted and immediately came towards us. We were still in our beds ( ... ) A soldier punched me on the forehead. One soldier sat on my chest and another sat on my legs ( ... ) A soldier ( ... ) punched me on my nose. Another soldier at my head grabbed me around the throat ( ... ) and pulled my head ( ... ) it was difficult to breathe. I was then pulled up so that I was sitting and another soldier tied my hands very tightly with plasticuffs to the rear ( ... ) The soldiers stood me up and I was blindfolded with a cloth ( ... ) They pushed my body and my head against the wall.¹⁶

The maintenance of the shock...

Table of contents

• Cover
• Title
• Introduction
• 1  ECCHR/PIL Allegations of Abuse by British Personnel
• 2  The Legal Paradigm
• 3  The Moral Component
• 4  A Policy of Abuse
• Conclusion
• Post Script: The Road to Redemption
• Bibliography
• Index