British Soldiers Who Tortured Iraqi Children Have Been Immunised From Prosecution
As the British government announces a statute of limitations to end all prosecutions related to the Troubles in Northern Ireland before 1998 – effectively an amnesty for the armed forces – we look at another arena in which the British Army’s conduct has been airbrushed from history. In an exclusive for Bella Irfan Chwodhury reports on the the International Criminal Court’s report on British war crimes in Iraq. We have deliberately not included or embedded some of the most disturbing footage and images of these incidents.
On 9 December 2020, the International Criminal Court (ICC) released a report on British war crimes in Iraq, entitled ‘Situation in Iraq/UK: Final Report’, which was the product of a preliminary examination that the ICC carried out from 2014 onwards. The report concludes that “there is a reasonable basis to believe that various forms of abuse were committed by members of British forces against Iraqi civilians in detention”, including “the war crimes of murder, torture, rape and/or other forms of sexual violence, and forms of mistreatment amounting to inhumane and cruel treatment or outrages against personal dignity”. The report also confirms that there were at least three incidents in which Iraqi children were tortured by British soldiers; two of the incidents occurred at one location in 2003, and the other incident occurred at a separate location in 2004. None of the soldiers who committed war crimes against children in these incidents have been prosecuted in Britain, and the ICC has also declined to take action against them.
2003: Camp Breadbasket
The two incidents from 2003 occurred at Camp Breadbasket, a humanitarian aid distribution centre on the outskirts of Basra that was set up by the British Army after the invasion of Iraq. It was a regular target of looting by locals, and so on 15 May 2003, the Quartermaster of Camp Breadbasket, Captain Taylor, decided to punish any Iraqis who were found looting at the camp by ordering his men to round them up and force them to carry out manual labour. After several Iraqis were detained at the camp that morning on suspicion of looting, some of the solders improvised their own forms of punishment, which included sexual violence and torture. Photographs documenting some of these abuses, including sexual violence against two adult detainees, were made public in 2005.
The following quote is a statement from the ICC report: “In one well-known example, the information available indicates that members of UK armed forces committed the war crime of torture and inhuman/cruel treatment against at least 7 Iraqi victims detained on suspicion of looting at Camp Breadbasket, near Basra, on 15 May 2003. According to the information available, the victims were subjected to stress positions, severe beatings, and sexual violence”.
Footnote 142 in the report makes clear that two of these seven Iraqi victims were children at the time that they were subjected to sexual violence and torture: “While the overall number of persons abused in the Camp Breadbasket incident remains unclear, there is information available with respect to 7 alleged victims (PIL 16 to PIL 22). PIL 19 and PIL 22 were 17 and 13 years old respectively at the time”.
The report then confirms again that all seven of these victims, including the two children, were subjected to sexual violence and torture: “The information available provides a reasonable basis to believe that members of UK armed forces committed the war crimes of other forms of sexual violence in one incident against, at a minimum, seven detainees at Camp Breadbasket in May 2003 who were also victims of torture as described above, and furthermore subjected one of those detainees to rape”. The report clarifies that the rape victim was PIL 16, an adult detainee. The confirmation that all seven victims were subjected to sexual violence is repeated again in the report’s ‘Conclusions’ section: “The information available further provides a reasonable basis to believe that members of UK armed forces committed the war crime of other forms of sexual violence, at a minimum, against the seven victims as well as the war crime of rape against one of those seven victims while they were detained at Camp Breadbasket in May 2003”.
With regards to all seven victims at Camp Breadbasket – PIL 16 to PIL 22 – the ICC report references information provided in the Iraq Abuse Handbook, a document that was authored by the now defunct public law firm Public Interest Lawyers, which represented the seven victims.
Public Interest Lawyers was closed down in August 2016 after one of its lawyers, Phil Shiner, admitted to engaging in malpractice in some of his cases by paying fixers in Iraq to find clients. Shiner was subsequently struck off the roll following a decision by the Solicitor’s Disciplinary Tribunal (SDT). However, an investigation by BBC Panorama in 2019 revealed that detectives at the Iraq Historic Allegations Team (IHAT), which had been set up in 2010 by the British Government to investigate alleged British war crimes in Iraq, concluded after conducting on-site investigations that many of the allegations of war crimes that Iraqis had made against British soldiers were true, but were nonetheless dismissed by British military prosecutors using Shiner’s malpractice in completely separate cases as a pretext. One former IHAT detective told Panorama: “The Ministry of Defence had no intention of prosecuting any soldier of whatever rank he was unless it was absolutely necessary, and they couldn’t wriggle their way out of it”. Another former IHAT detective told Panorama: “I use the word disgusting. And I feel for the families because… they’re not getting justice. How can you hold your head up as a British person?”. Britain’s former Director of Public Prosecutions, Lord MacDonald, described the Ministry of Defence’s decision in 2019 not to pursue charges against British soldiers who IHAT detectives concluded had committed war crimes as “staggering”. Moreover, the ICC released its report on 9 December 2020, more than four years after Public Interest Lawyers was closed down, and it confirmed that there is “a reasonable basis to believe” that the allegations from these seven victims are true, after having reviewed “the information available”.
No details are provided in the ICC report about what exactly happened to PIL 19 (the 17-year-old victim) and PIL 22 (the 13-year-old victim), and the Iraq Abuse Handbook was not made public. The ICC report simply notes that PIL 22’s Victim Statement “depicts treatment involving protracted humiliation and continuous beating with fists, boots, sticks and aerials”. On 10 April 2021, I filed a Freedom Of Information (FOI) request with the Ministry of Defence to gain access to the Iraq Abuse Handbook, which I believed to be in their possession due to MOD-83-0000354-A, which is an excerpt from the document, having been published by the British Government’s publishing service online. By law, I was supposed to receive a response to this FOI request by 20 May 2021. In fact, I received a response on 21 June 2021, more than a month after the legal deadline. The response that I received came from the Directorate of Judicial Engagement Policy, and it states the following:
“A search for the information has now been completed within the Ministry of Defence. I can confirm that the information you have requested is held in full, but is subject to Section 30(1)(a) of the FOIA, as it has been held by the Ministry of Defence for the purposes of an investigation [emphasis added].
Section 30 of the FOIA is concerned with preserving the integrity of proceedings and investigations conducted by public authorities. It provides that information held by a public authority is exempt in the following circumstances:
- 30(1)(a)(i) where information has at any time been held for the purposes of any investigation with a view to ascertaining whether a person should be charged with an offence; or
- 30(1)(a)(ii) whether a person charged with an offence is guilty of it.
Section 30(1)(a) is a qualified exemption and is subject to a Public Interest Test, which means that public authorities must weigh the public interest in maintaining the exemption against the public interest in disclosure. We recognise that disclosing the report you have requested may assist in understanding the nature of the allegations that have been investigated. However, we judge that disclosing the document would have the potential to undermine future investigations; there is a significant public interest in protecting information that has the potential to be needed by the service police in the future, should any criminal allegations be reviewed or challenged. Furthermore, if offences are found to have occurred, it is important that these can be prosecuted effectively, without prejudice. There is a significant public interest in preventing disclosures that would prejudice either a particular investigation or set of proceedings, or the investigatory and prosecution processes generally, including any prejudice to future investigations and proceedings [emphasis added]”.
In other words, the Ministry of Defence has the entire Iraq Abuse Handbook in its possession, but it has decided that disclosure of this document is not in the public interest – allegedly because disclosure could undermine future investigations and prosecutions, but this pretext is difficult to believe given that the Ministry of Defence has demonstrated no intention of prosecuting any soldiers who committed war crimes in Iraq. I also attempted to gain access to the Iraq Abuse Handbook by emailing former members of Public Interest Lawyers to see whether they have any copies of the document in their possession that they would be willing to share with me, but this attempt was similarly fruitless. Thus, the Victim Statements of PIL 19 and PIL 22 remain outside of the public domain.
Nonetheless, after the ICC report describes the rape of PIL 16, based on his own Victim Statement, the report then gives an overall picture of the sexual violence that was carried out against all seven victims:
“As noted earlier, photographs widely circulated in the media at the time also showed other Iraqis being forced to simulate oral and anal sexual intercourse. The level of severity of such conduct is comparable in gravity to conduct constituting the war crime of “outrages upon personal dignity, in particular humiliating and degrading treatment” under article 8(2)(c)(ii) of the Statute. The sexual and gender-based component of the conduct just described, nonetheless, is more accurately reflected as the crime of “other forms of sexual violence”, given the nature of the conduct and its context, its manner of commission, and impact. Moreover, the conduct appears to have been inflicted with the specific intention to sexually humiliate the detainees concerned, in order to cause offence, distress, and shame. There is a reasonable basis to believe that the acts of rape and/or other forms of sexual violence set out in this section occurred in a coercive environment, in which the detainees experienced fear of violence, duress, and psychological oppression. Furthermore, these acts occurred in circumstances that negated the detainee’s ability to consent, and in some instances by force, when the detainee was restrained in a vulnerable position”.
The ICC report notes with regards to the abuses at Camp Breadbasket: “The conduct only came to light when one of the soldiers involved in taking trophy photographs had the photographs developed in a civilian shop and the shop assistant reported the conduct to civilian police, who made an arrest”.
No one has been prosecuted for any of the torture that was carried out against both adults and children at Camp Breadbasket. There was a court martial in 2005 of only three low-ranking soldiers involved in abuses at Camp Breadbasket – Corporal Kenyon, Lance Corporal Cooley and Lance Corporal Larkin; none of them were charged with torture, and the court martial resulted in them being convicted of more minor offences and receiving sentences that were all subsequently cut short after a closed military hearing. Corporal Kenyon and Lance Corporal Larkin faced charges relating to alleged involvement in sexual violence against detainees at the camp, but they were both cleared of these charges.
Corporal Kenyon’s lawyer stated that his client felt that “a significant number of other soldiers, including many senior to him, some of whom have been promoted, were involved in the mistreatment of Iraqis that day. As far as Corporal Kenyon is concerned, it is clear that the senior officers have been identified. They know who they were, it was not a question of finding them”. Lance Corporal Cooley’s lawyer stated that his client “believes that he, in the eyes of the Army, was guilty until proven guilty and notes that courts martial only allow for officers and warrant officers to sit in judgment. They are not his peers and no doubt felt pressure from the Army and politicians to find scapegoats for what happened in Camp Breadbasket”. Lance Corporal Larkin’s lawyer stated: “The perception may well be, before other people are brought to justice, that in fact he is a scapegoat for what took place. The Army made the decision not to prosecute other soldiers. It is certainly the case that other people could have faced charges but with the passage of time the chances of a successful prosecution are likely to be reduced”.
This is the ICC report’s summary of what transpired at the court martial: “The Camp Breadbasket court martial convicted Lance Corporal Cooley for using an Iraqi detainee on a forklift to amuse himself and for simulating the punch of an Iraqi detainee for a trophy photograph. Corporal Kenyon was convicted for his role in the scheme to take trophy photographs, while Lance Corporal Larkin pled guilty to assaulting a detainee. In articulating the reasons for sentencing, the Judge Advocate acknowledged that the persons accused in the court martial were not those responsible for “perhaps the worst of these offences” at the camp: that is, forcing detainees to simulate oral and anal sex”.
In other words, the soldiers who were prosecuted at the court martial were not those responsible for torturing detainees at the camp – as far as can be ascertained, as they were not charged with doing so and were convicted of more minor offences, which lends credence to their lawyers’ contentions that they were scapegoated – and they were not those responsible for carrying out sexual violence against detainees at the camp, as acknowledged by the Judge Advocate. Thus, none of the soldiers who subjected PIL 19 and PIL 22 to sexual violence and torture have been prosecuted for these war crimes.
The incident from 2004 occurred some time in April at Al-Amarah, north of Basra. British soldiers were called in to break up riots which were occurring in the city, during which two of the soldiers captured four civilians from the rioting crowd, including at least two children, and dragged them into a nearby military compound. What happened next is documented in the ICC report:
“On 12 February 2006, the now-defunct UK newspaper ‘News of the World’ released still images from a video footage reportedly provided by a whistle-blower depicting British soldiers assaulting Iraqi civilians in April 2004 in Al-Amarah, Iraq. The MoD [Ministry of Defence] confirmed it had opened an urgent Royal Military Police (“RMP”) investigation into the conduct shown in the videotape. It appeared that four Iraqi civilians, including at least two teenagers, had been snatched from a rioting crowd and brought inside a military compound where they were assaulted. According to the ‘News of the World’ report, the video footage depicted soldiers “beating [the captured teenagers] senseless with vicious blows from batons, boots and fists” before “what appears to be an officer” delivered a “full-force kick in the genitals of a cringing lad pinned to the ground” and a cameraman delivered a “commentary urging his mates on…”. According to the UK army press release on the incident, the video footage shows an alleged kick to the body of a deceased Iraqi civilian. Although no official version of the video has been published to date, the Office reviewed open source footage available online with the stamp ‘News of the World’ that was consistent with the details in the media report”.
The video in question was given to the News of the World in 2006 by an anonymous whistleblower within the British Army, who was quoted as saying: “These Iraqis were just kids. Most haven’t even got shoes on”. One of the most disturbing aspects of the video is the delighted commentary that accompanies it; the soldier filming the incident, Corporal Martin Webster, can be heard saying: “Oh yes! Oh yes! You’re gonna get it. Yes, naughty little boys. You little fuckers, you little fuckers. Die. Ha Ha”.
A copy of the video is available to view here. It is age re-restricted. Warning, this is disturbing footage.
The ICC report concludes the following with regards to this incident: “the information available indicates that members of UK armed forces committed the war crime of torture and inhuman/cruel treatment against at least 4 Iraqis detained at the margins of a riot in Al-Amarah in April 2004”.
It is important to bear in mind the details of this case; two Iraqi children were filmed being brutally beaten by two soldiers while the soldier filming can be heard enthusiastically encouraging them, and the ICC report concludes that what was done to these children constitutes “the war crime of torture and inhuman/cruel treatment”. With these details in mind, this is the ICC report’s summary of what British military prosecutors decided with regards to this case:
“The case of W3 (IHAT 8: alleged abuse of Iraqi youths in Al Almarah Riot in April 2004) was referred on 30 September 2019. In the case of W3 a decision was made that it was not in the public and service interest to direct charges. This case was referred for a crime of minor violence under UK law, it was not referred for a war crime [emphasis added]. There was no evidence of injury and the victims in the case gave contradictory and unreliable evidence. There were significant evidentiary problems with the case. The SPA [Service Prosecuting Authority] sought external counsel’s opinion. The DSP [Director of Service Prosecutions] decided it was not in the public and service interest to direct charges on such a minor case that was so old [emphasis added]. The victim had exercised the right of review which was being done internally at the SPA”.
Apparently, brutally beating children only constitutes “a crime of minor violence under UK law”, and it is “not in the public and service interest” to charge those responsible because it is “such a minor case” and “so old” (the case in question was 15-years-old at the time that it was referred to the SPA for examination). As for the victims giving “contradictory and unreliable evidence” and the “significant evidentiary problems with the case”, there is video evidence of the children being beaten, the authenticity of which has never been disputed. Corporal Martin Webster, who filmed the video and provided the commentary, was dismissed from the British Army and has himself confirmed the authenticity of the video. Moreover, in 2012, IHAT detectives concluded that there was sufficient evidence to bring charges against the two soldiers who were filmed beating the children, and the Army Prosecuting Authority (AMA) decided that there was sufficient evidence to support charges of assault by battery against the two soldiers. Despite this, charges were not brought due to battery charges being subject to a six-month time limit, which would have expired 18 months before military authorities were made aware of the incident. Nonetheless, the SPA and the DSP had an opportunity in 2019 to bring new charges against the soldiers in this case, but they decided not to. It is worth repeating that the ICC concluded that the soldiers in this case “committed the war crime of torture and inhuman/cruel treatment”.
“the criteria applied by IHAT/SPLI to filter allegations during different stages of the procedure following the SDT findings against Phil Shiner/PIL as well as their overall proportionality assessments with respect to the relative gravity of the offence vis-à-vis the passage of time;
the extent to which the ‘closing of ranks’ phenomenon may have affected IHAT/SPLI’s work;
allegations made by some former IHAT employees that cases, including those involving superior responsibility were prematurely terminated or that there was leadership pressure not to pursue them; and
the undoubted strain that the working operations of IHAT came under given the imminent announcement of its premature closure”.
The ICC report goes on to note that “compensation claims continue to be settled, and for those cases not settled, litigation before the High Court has established that the underlying facts did constitute ill-treatment. This suggests that the bulk of claims meet the threshold for objective attribution to the UK armed forces [emphasis added]. The MoD’s apparent acceptance of such a large number of claims (albeit without prejudice), when considered against the small number of cases that have progressed at the criminal investigation stage, and the lack of any prosecutions resulting from IHAT/SPLI’s activities, has added to those concerns”.
Despite this, the ICC decided not to take action against British soldiers who it concluded had committed war crimes in Iraq, due to the following reason: “it is not sufficient for the Office to have concerns. The factors it has identified must be capable of demonstrating that the authorities acted in bad faith, i.e. that the relevant domestic proceedings were not conducted genuinely which, in the circumstances, demonstrates an intent to shield persons from criminal responsibility. As the Appeals Chamber has observed, this is a high threshold”. In other words, “The question is whether there is evidence to establish that the State concerned was unwilling to investigate or prosecute”.
After noting “the number of IHAT investigators who complained to the BBC/Sunday Times that they were blocked both on cases focussed on individuals, as well as on systemic issues”, the ICC report makes the following assertion, which can only be characterised as absurd in the context of all of the myriad factors identified by the report – including allegations made by former IHAT detectives that their work was obstructed by the Ministry of Defence, and the fact that the Ministry of Defence has accepted a large number of compensation claims made by Iraqis while only a small number of cases have progressed at the criminal investigation stage – which indicate that the Ministry of Defence acted systematically to shield soldiers from prosecution: “The Office agrees that the correct approach is to examine the totality of the relevant factors in their context to determine whether shielding occurred or not. Applying this approach to the facts at issue, the Office cannot infer that the individual factors constitute a larger pattern of shielding”.
The European Center for Constitutional and Human Rights (ECCHR) has observed that the ICC applied an “excessively high standard of proof regarding the UK’s unwillingness to prosecute alleged war crimes”, and that “The prosecutor failed to give sufficient weight to critical facts like the allegations that British authorities actively covered up evidence”, which led to the preliminary examination being dropped prematurely. On this basis, the ECCHR has argued that the ICC should reopen its preliminary examination, because “The UK remains unwilling to adequately investigate the crimes” and the ICC has an obligation to “prevent powerful actors, such as the UK, from getting away with grave crimes like torture”. Amnesty International has similarly noted that the ICC’s decision to close its preliminary examination without prosecuting any of the soldiers who it confirms committed war crimes “rewards bad faith and delays brought about by the failure of the UK military and authorities to conduct independent and impartial investigations into allegations in the immediate aftermath of the conflict in Iraq”. Moreover, Human Rights Watch has observed that “the UK’s record of prosecution of war crimes has been derisory”, but that in its report the ICC “bends over backwards to give the UK the benefit of the doubt, even when the evidence is against it”, and that it “justifies individual decisions not to prosecute, while not examining the overall political context and clear statements and actions of UK governments to prevent investigations and prosecutions of UK forces”.
In neither the Camp Breadbasket case nor the Al-Amarah case have British soldiers been prosecuted for committing war crimes against Iraqi children, despite the ICC concluding on the basis of the available evidence that the treatment of the children in all three incidents amounts to the war crime of torture and inhuman/cruel treatment, with the addition of the war crime of other forms of sexual violence in the Camp Breadbasket case. Both the ICC and Britain’s Ministry of Defence have utterly failed in their respective obligations to serve justice in these cases.