Case Watch: British Judges Raise Standards for Investigating Wartime Abuses

On May 24, 2013, the High Court of England and Wales determined that the British government must improve the inquiry mechanism it had in place to handle hundreds of allegations of U.K.-caused deaths and detainee abuses during its 2003 invasion and subsequent occupation of Iraq.

The decision, Mousa and others v. Secretary of State, was in response to claims that the existing mechanism—the Iraq Historic Allegations Team (IHAT)—was neither independent nor in adequate compliance with the investigative duties under Articles 2 (right to life) and 3 (prohibition against torture) of the European Convention on Human Rights. The court also provided guidance on how the government could comply with its duty to investigate the allegations, though it did not endorse the plaintiff’s argument that only a public inquiry could remedy the deficiencies.  

The allegations included over 100 claims of Article 2 violations and 700-800 claims of Article 3 violations. As the court noted, the allegations were “of the most serious kind involving murder, manslaughter, the wilful infliction of serious bodily injury, sexual indignities, cruel inhuman and degrading treatment and large scale violation of international humanitarian law.”

The issue goes back to 2004, when Britain’s defense ministry initially refused to conduct independent inquiries into the death of 113 Iraqis in Iraq. The courts upheld that decision for the most part, on the grounds that obligations under European human rights law did not exist in Iraq. But the European Court of Human Rights (ECHR) in Al-Skeini v. United Kingdom, disagreed. In response, the UK government eventually established the IHAT. The mechanism’s independence has already been successfully challenged in the courts once, resulting in some reforms, which have now also been deemed insufficient.

The High Court’s decision is significant for several reasons. First, the decision did not challenge the ECHR’s determination in Al-Skeini that the European convention applied to the conduct of British forces in Iraq when they were an occupying force or when they had custody over an individual. This is nothing new, given that other UK courts have also complied with Al-Skeini, but it is important nonetheless because it continues to distance the UK courts from their original rulings—that the European convention did not apply necessarily within British occupied territory in Iraq because 1) the status of “occupation” under international law did not necessarily trigger its jurisdiction and 2) Iraq was not within the Council of Europe.

Second, the High Court’s decision is significant for setting forth recommendations on how the United Kingdom could operationalize its human rights investigatory obligations in the context of an armed conflict. In doing so, the court, expressing exceptional deference to the exigencies of armed conflict and the judgement of the military, determined that the United Kingdom had flexibility in finding ways to meet its human rights investigative obligations. While it is generally accepted by the ECHR that the body of human rights law is, in some circumstance, applicable during times of armed conflict when international humanitarian law is also applicable, there is considerable debate over how specific rules of human rights law are to be applied in practice. The High Court therefore made—whether one agrees or disagrees with its recommendations—a considerable contribution to this emerging and increasingly important aspect of international law.  In effect, the Court, though never mentioning international humanitarian law (IHL) other than to say there were allegations of large scale violations of IHL, set forth an investigation model whose scope and procedural specificity exceeded, but was not prohibited by, what was required within IHL. It needs to be noted however, that the court set forth recommendations—the content of which are discussed below—for the British government to implement after the UK’s participation in the armed conflict in Iraq had ended. While the court’s general comments on Article 2 investigative duties may apply uniformly, it is unclear if the court’s precise recommendations in this decision would have been the same if the UK was still at war in Iraq.

Third, while the High Court held that the IHAT did not meet Article 2 investigative requirements, it did not agree with the complainants that the deficiencies resulted from a lack of independence. The court came to this decision after a lengthy review of the structure and composition of the IHAT. This part of the High Court’s decision can only be seen as a victory for the UK’s Minister of Defense, which otherwise would likely have had to completely restructure its systems for investigations and accountability.

The fourth significant aspects of the decision was the court’s analysis of what an investigation might look like in order for the United Kingdom to comply with its investigative duties under Article 2 of the European human rights convention when those duties exist extraterritorially and relate to “the very large number of deaths occurring at many different times and in different locations.”

After reviewing the U.K. common law duty to investigate deaths in custody and the ECHR’s case law on the same issue, the Court came to the conclusion that deaths in custody must be,

“discharged by a full, fair and fearless investigation accessible to the victim’s families and to the public into each death, which must look into and consider the immediate and surrounding circumstances in which each of the deaths occurred. These circumstances will ordinarily include the instructions, training and supervision given to soldiers involved in the interrogation of those who died in custody in the aftermath of the invasion. It should also identify the culpable and discreditable conduct of those involved, including their acts, omissions as well as identifying the steps needed for the rectification of dangerous practices and procedures.”

The court noted that these principles should similarly apply “to other deaths within the territorial scope of the convention, though the detailed approach may vary.” (i.e., people killed in territory under the effective control of the British).

The court then evaluated how well the IHAT applied these principles to various categories of cases involving deaths. It first focused on the issue of prosecution, ultimately noting that while there had been some prosecutions, in response to other allegations there was either no inquiry into criminal responsibility; the IHAT investigations were unduly lengthy; or the chances for future prosecutions were slim. As a result, the court asked the Secretary of State for Defense to produce within six weeks an update on the progress of the investigations and when a decision on prosecution will be made.

The court, after assessing that prosecution is unlikely in many cases, assessed the IHAT’s work in light of other Article 2 investigative requirements. The court found the following deficiencies in the IHAT: a failure to deal with the decision to prosecute in prompt and efficient ways, which included a failure to properly include the Director of Service Prosecutions into the IHAT’s work; significant delays in the IHAT’s work; failure to make the IHAT’s inquiry accessible to the public; failure to make the IHAT’s inquiry accessible to the family of the deceased; and failure of the IHAT to examine systemic abuse and training.

After this, the court set out how the Secretary of State might fulfill its Article 2 investigative duties. In doing so, the court dismissed the applicant’s proposal for a public inquiry and instead favored “developing a procedure based on Coroner's inquests.”  Whereas the public inquiry, according to the court, would, inter alia, take too long, be too costly, and it would be difficult to find qualified personnel to conduct the inquiry, the Coroner’s inquest “would have been the appropriate and perfectly acceptable way of discharging the Article 2 duty.” In favoring this approach, the Court acknowledged that “the task facing the Secretary of State is unprecedented” and provided an “outline of what we consider the Secretary of State should consider.”

The Court’s outline included the following: 

• Taking a case by case approach with different appointed persons assigned to different deaths. The cases with no prospects for prosecution would be prioritized. The Court also noted that “the decision on whether to investigate, how to progress the investigation and whether a prosecution should be brought,” was to be made “with the direct involvement of the Director of Service Prosecutions.”
• Following an inquisitorial process.
• Including legal representation based on the circumstances since the inquiry would only take place once it is determined that there was no realistic possibility for a prosecution.
• Ensuring that the inquiry is accessible to family and friends of the deceased and make the hearing open to the public.
• Providing a narrative account of the facts.
• Ensuring there is supervision of the process and accountability to avoid such deficiencies as delays and to ensure the recommendations are reviewed and implemented.

The court then made remarks regarding Article 3 investigative duties, which were largely sidelined throughout the decision, but related to an estimated 700-800 allegations of abuse. The court held that Article 2 investigations should take priority over Article 3 investigations and said it hoped the IHAT “would be able to adopt an approach to making decisions on investigation and prosecution on Article 3 cases so as to involve the Director of Service Prosecutions in the manner we have suggested for the Article 2 cases.” The court continued, “once it is determined that there are cases in which there will be no prosecution, the procedure for Article 3 cases should be reviewed by the Secretary of State in the light of the experience in the Article 2 cases.”

The High Court’s ruling provided new answers about the precise nature of how the United Kingdom is required to fulfil its human rights investigative obligations were it had acted extraterritorially within the context of an armed conflict. In determining whether the IHAT met those obligations the court answered in the negative, but rather than stopping there it provided guidance that, in the court’s view, balanced and accommodated both the European convention’s duty to investigate and a margin of appreciation afforded to the Secretary of State during and after wartime operations.

The court did not explicitly couch its decisions within ongoing academic and operational discussions about the co-applicability of international human rights law and international human rights law, but it nonetheless provided some answers to those questions at a time when the military in particular is looking for guidance on this issue. In doing so, it provided more robust procedures than what were previously in place. It remains to be determined whether the Secretary of State can implement the new inquisitorial inquiry process; whether those who are making the allegations against the United Kingdom find it satisfactory; and whether the new process will ever come before the European Court.