Britain, Lawfare and the ICC

The British government should deny its enemies the opportunities for exploitation presented by the International Criminal Court and withdraw now from the process. Any other course would represent an unprecedented and historic betrayal.

Today the United Kingdom sits alongside Libya, Darfur and Sudan as the International Criminal Court [ICC] launches an investigation into alleged war crimes by the British Army in Iraq.

This perversion brings to mind German Pastor Martin Niemoeller’s powerful words at the end of the Second World War: “Then they came for the Jews, and I did not speak out — because I was not a Jew. Then they came for me — and there was no one left to speak for me.”

It was not long before they came again for the Jews – this time in the newly established Jewish state. And over the years, Israel’s enemies, unable to destroy her in battle, have used “lawfare” – the abuse of Western laws and judicial systems – to try to undermine and delegitimize her.

A leading player in this unremitting assault has been the UN Human Rights Council [UNHRC], which has passed resolution after spurious resolution against Israel while ignoring horrific human rights abuses around the world. The fundamentally flawed Goldstone Report, which concluded that Israel had been guilty of war crimes and crimes against humanity during the IDF’s defensive operation in Gaza in 2008-09, is an example of the UNHRC’s distortions of reality.
To their credit, the United States and five European countries opposed the UNHRC’s resolution to endorse Judge Goldstone’s assault on the Jewish state. Predictably, the United Kingdom declined to vote. This is characteristic of Britain’s refusal to speak out when Israel, one of the West’s staunchest allies, comes under
attack, whether by rockets from Gaza directed against her civilian population or by lawfare, directed against her government and armed forces.

The main building of the International Criminal Court in The Hague, Netherlands. (Image source: Wikimedia Commons/Vincent van Zeijst)
The main building of the International Criminal Court in The Hague, Netherlands. (Image source: Wikimedia Commons/Vincent van Zeijst)

And now another instrument of the “international community” is coming for Britain. In the latest of a barrage of legal attacks against British forces in recent months, ICC prosecutor Fatou Bensouda’s
preliminary examination will look into allegations that British troops abused detainees during the Iraq conflict between 2003 and 2008.
Bensouda will decide whether or not Britain is making genuine investigations into these allegations and whether prosecutions are likely to be brought against individuals if the evidence warrants it. If Bensouda is satisfied, she will then lay down standards to be followed by the British judicial system and monitor progress and performance against those standards.

But if Bensouda is not satisfied, she will then order a move to the next stage, which is a formal ICC investigation. Legal experts believe that this is unlikely. But it remains a possibility, and one that could lead
to the preposterous spectacle of British soldiers being sent to The Hague for trial by the ICC.

The allegations in front of Bensouda are contained in a 250-page file of supposed evidence of the “systematic use of brutal violence, that at times resulted in the death of detainees, while in the custody of
UK Services personnel.” British troops are accused of “brutality combined with cruelty and forms of sadism, including sexual abuse and religious humiliation.”

These allegations have been made jointly by Phil Shiner of the British law firm Public Interest Lawyers and the European Centre for Constitutional and Human Rights [ECCHR], a pressure group that has in the past sought to indict American politicians for war crimes, including President George W Bush.

Shiner has made a career of lawfare against British forces. With tiresome predictability, he has also had Israel in his sights. In 2009 he failed in a lawsuit in Britain intended to impose a judicial ban on all aid and assistance to Israel. He cited “the United Kingdom’s ongoing failure to meet its obligations under customary international law in respect of Israel’s actions since the launch of Operation Cast Lead in Gaza on 27 December 2008.”

Most recently he represented Iraqi families during a public inquiry, known as the Al Sweady inquiry, into allegations that British troops murdered and mutilated prisoners of war. Although the central allegations in the inquiry collapsed last month due to lack of evidence, Shiner’s firm will pocket at least $4.7 million of the
estimated $52 million that the inquiry is likely to cost the British taxpayer.

Shiner now seems to be under the illusion that the head of the British Army, General Sir Peter Wall, whom he names in his complaint to the ICC, is some sort of small-time modern-day Heinrich Himmler. His
allegations are not just against fighting troops but also against their commanders and political leaders in London, who he claims ordered systematic war crimes by British soldiers.

Yet Shiner, Public Interest Lawyers and ECCHR are not in reality the problem here. In many ways they are an irrelevance, small people trying to exploit for their own financial and political purposes the very real failings of the British government.

By failings I do not mean that Britain’s judicial process has failed or that the alleged war crimes actually took place. In fact, the Ministry of Defence’s Iraq Historic Allegations Team is already in the process of
investigating every one of Shiner’s accusations of unlawful death and mistreatment. If there is sufficient evidence, service members are liable for trial by court martial.

On the basis of thirty years’ service with the British armed forces, I very much doubt that there was systematic abuse of prisoners by British soldiers in Iraq. And the idea that generals or politicians in London would have sanctioned any such abuse is equally improbable. If anything, the UK Ministry of Defence has usually erred too far on the side of caution and the rigid application of human rights law in its direction of military operations in Iraq and Afghanistan – sometimes to the extent that British troops have felt their own lives to be at undue risk.

As for the detailed allegations, I cannot judge whether there is substance in any of them. Shiner’s Iraqi witnesses at the Al Sweady inquiry have been accused by the British government of repeatedly lying and engaging in a criminal conspiracy in their false allegations against British forces for financial gain.

But sometimes prisoners have in reality been abused by British troops, as sometimes have prisoners of all armies. All armies have bad soldiers who break the rules, good soldiers who make mistakes and soldiers who succumb to the unbearable pressures of combat. As a commander, I once had to intervene to prevent abuse of prisoners in Afghanistan – in that case the mistreatment would have been inadvertent, the result of ignorance rather than malignance.

It is of course right that soldiers face justice for their transgressions. It is what separates us from our enemies, especially enemies such as Al Qaida, the Taliban, Hamas and the Mahdi Army in Iraq. Their only
interest in the laws of war is the extent to which they can exploit our adherence to those laws for their own baleful ends.

But British soldiers must only face British justice. Here lies a serious failing of the UK government. The US and Israel did not ratify the Rome Statute which brought the ICC into being in 2002. Both countries knew only too well that accepting the jurisdiction of the ICC would expose their armed forces to widespread political prosecutions.

Britain’s Labour government on the other hand enthusiastically embraced the Rome Statute, and successive governments have continued to do so, despite many warnings of the inevitable consequences. There is no denying that an international system for bringing perpetrators of war crimes to justice is needed – primarily
as a deterrent. But it is needed for countries that lack the means or the will to do so themselves. It is not needed for liberal democracies such as Britain, which has one of the most highly regarded and independent judiciaries in the world, the product of 1,000 years of legal evolution.

Of course countries such as Britain, the US and Israel should hold themselves at least to the same standards as are expected by the ICC. In practice these countries do just that, but under the established and proven auspices of their own judicial systems.

Sending its armed forces to fight and die in the defense of its country is the most awesome responsibility that any government has. And with that responsibility come unique duties to its soldiers. These include defending them against legal assault from overseas. Soldiers are sent into battle in the name of their country and should be judged only by the countrymen for whom they fight. For Britain, any other course would represent an unprecedented and historic betrayal.

To allow a nation’s armed forces to be undermined in this way is also to undermine the state itself and its core values. This of course is the primary objective of lawfare, together with using the legal process to deter or hamper Western nations from fighting to defend themselves. The US and Israel refused to sign up to the ICC not only to protect their forces but also because they recognized that it would expose their countries to the wider depredations of lawfare.

This hazard is of little concern to many nations in Europe who are no longer even prepared to send their armies to fight. If the UK is to retain its position, along with the US and Israel, as one of the few countries ready to fight for Western values, it will continue to be very much a target for lawfare. The British government should deny its enemies the opportunities for exploitation presented by the ICC and withdraw now from the process. Britain should also remember Niemoeller. When it acquiesces – even by silence – in attacks on its allies, it lays itself open to the same forms of attack.

Published by the Gatestone Institute, 14 May 2014. © Richard Kemp