Thanks to the organisers here, here from the institute and from lead,
I think this is a very timely event, at least since I started working on this Iraq issue.
I don't recall having seen so many people working on these topics brought together, so it's really a pleasure to be here.
And what I will try to do in my presentation is to focus on a discussion paper that that I recently researched and populist with
colour first and called the UK military in Iraq for us and prospects for accountability for international war crimes allegations.
So that paper was researched over the spring, over the summer,
and we we published it and launched today in The Hague, I think, on the 1st of October last year.
So it's all fairly recent. But I should say, of course,
that I might might not necessarily be fully up to date on any on any developments that have happened over the last three months,
which is partly due to me just becoming a father.
So work has been put a little bit under behind and in those last couple of months before I did that project.
Together with Carla, which was funded by Six Impact Acceleration Fund I,
I worked on a British Academy project, which is where the main focus was on complementarity.
So trying to understand the various interplay between what is going on at the level of The Hague.
So with respect to the ICC, a preliminary explanation into, um, into the new UK Iraq case and and what's going on domestically.
So that's that's some form of interplay also between these two, these two different projects.
A brief note on the methodology of our paper. So of course, and needless to say, we we analysed publicly available information.
So. So court decisions and official statements by by UK government representatives and uh,
statements by the ICC and other documents that you can fairly easily access.
And in addition to that, we engaged a range of stakeholders who have been working on on these topics.
So of course, that include the people at the ICC level.
And we also attempted to engage UK government representatives.
So specifically, um, people were working on the domestic investigations.
However, as I shall return to later on in the presentation,
that has proven fairly difficult that that not not a whole lot were willing to engage with us.
We also used Freedom of Information request to to attempt to get information relating to the
UK s investigations and its submissions to the ICC and other and other relevant material.
And again, and not a whole lot came out of that.
Indeed, we got very few, if any, substantive responses to our Freedom of Information requests.
I think I will try to use at the end of the presentation.
I will try to give you an example of a Freedom of Information request of the respondents to our requests.
So so you can see and what on what basis government agencies are denying access to this information we've been given requesting.
So that's been that's been a serious challenge for doing the research that a lot of material we would have liked,
ideally to access it simply wasn't possible.
So the way we frame this from the outset is that there seems to be basically to what is often being portrayed as to
opposed narratives relating to to the accountability of these efforts to achieving accountability for for the Iraq claims.
And one is the perspective that despite the significant physical and other evidence of serious abuse and wrongful death,
a large proportion of criminal investigations have been shut down. And as a result, that's been almost a total lack of criminal accountability.
Facts of serious of extreme seriousness, which occur under normal circumstances,
we believe, resulted in trial and possibly in conviction and and punishment.
And then on the other hand, you have the narrative promoted by the government or at least certain parts of the goal and in particular the amnesty,
as well as certain media outlets would just basically saying that.
And this is a question of ambulance chasing lawyers who had just ended for the money.
And I mean, you're all very familiar with that. But that narrative and which this really taking the perspective also that this is this
is unfair to the servicemen who who served in Iraq and unfair to the military as such.
And the way we see it is that that these two narratives shouldn't necessarily be opposing that,
that if you look at it from the perspective of servicemen, then they would have an interest, you would think.
And in thorough investigations being conducted promptly and with a clear conclusion,
rather than as it has turned out to be with multiple investigations going on for many years
and and servicemen being interviewed again and again by different by different agencies too.
So from that perspective, we don't think that these two narratives should necessarily be seen as as conflicting.
And secondly, I don't think we can we can look at what's going on in the U.K. without and without also looking at the ICC's preliminary examination.
So it seems clear that that explanation has has framed the government's approach
to accountability to a large extent and and multiply that into place that will,
some of which was briefly touched on in this presentation. So, uh.
Very briefly. And that examination it was reopened in May 2014 after it had been initially closed in 2006 by then prosecutor Moreno Ocampo.
Um, it's currently placed in phase three, which means that investigators are looking into issues of admissibility, which includes complementarity.
So the legal standard that the ICC cannot proceed to a full investigation of genuine domestic proceedings going on, as well as gravity.
So that happened in November 2017, and then the Office of the Prosecutor issued its report on an examination activities again in November 2018.
And that report my reading of it, at least, is that it seems it seems fairly conclusive that the ICC prosecutor would would likely not move ahead on,
uh, on the basis of an assessment of complementarity, at least as it currently stands.
So basically a a view,
a perception that what the UK has done and is doing might likely satisfy the Rome Statute of requirements to to complementarity.
And that's just my reading of it, that the. But it does seem fairly conclusive to me.
A brief note on government response. I think at the outset, it must be recognised that the UK government has cooperated with the ICC.
It has, uh, significantly engaged the office of the prosecutor on these matters and at least publicly taken
taking the view that it does not believe there's any merit in this particular examination,
and hence it should be closed on grounds of. Well, first, I think there's no crime base under the Rome Statute.
So whatever happened in Iraq was was the result of a few bad apples that that basically you do not have any any widespread,
a large scale commission of war crimes in Iraq.
Uh, then secondly, the government has been challenging the credibility of the information, and with that goes to the credibility of.
Some of the actors that have provided this information to to the office of the prosecutor.
And lastly, it's seeing complementarity,
even if we should assume that there is a crime basis to move ahead with an complementarity means that the ICC cannot move ahead with this.
And at the same time, and more broadly, perhaps the government seems to have devised this narrative of ambulance chasing lawyers and
taking certain other measures in that regard that seem to have restricted relevant stakeholders.
Holder's ability to work on this, and even more broadly,
also and this is not something that will go into detail about the but perhaps we can do it in.
The discussion also made proposals for adopting a statute of limitations to apply to all previous situations of armed conflict.
I believe that's how it's being framed. So that's something the defence committee the defence subcommittee is currently working on.
And at the same time, various proposals for delegating from me and from human rights law in times of armed conflict.
So it seems fairly clear that these measures are being taken are being proposed us as a way
of avoiding that legal claims along what has happened in Iraq are being ever brought again.
So here's an example of the response of the UK government at the most recent assembly of state parties and in The Hague.
And to me, I was I wouldn't say I was shocked, but I was.
I was quite positive that the UK went this direct because you wouldn't normally at
least the responses I was seeing would not be be this direct in basically saying that,
yes, we do support the ICC, but you guys need to stop being a human rights monitoring court.
And we believe what you're doing with our with the Iraqi examination is basically,
you know, sort of a human rights appeal court with respect to our own legal system.
And at the same time, saying the court must urgently adopt the closure strategy for its cases,
including timelines and targets for preliminary examinations, investigations and trials.
So this being the UK,
it seems to be to be fairly direct and and disseminating a clear dissatisfaction with with the ICC involvement and in the situation in Iraq.
Here's some other quotes, uh, relating to, uh,
the governments of ministers approach to to the legal processes and and the lives that have been involved in it.
First, you see,
Theresa May will never again in any future conflict that those activist left wing human rights lawyers around and harassed the bravest of the brave,
the men and women of our armed forces and, uh, something along the same lines by former Prime Minister David Cameron and,
uh, uh, statements by the former Secretary of Defence Michael Fallon.
Uh. And finally, Bob Stewart, the UH, a member of the Commons Defence Committee who has been I think it would be fair to say, uh,
try to quite clear in his opposition to anything,
anything having to do with legal processes relating to two armed conflicts and any efforts at accountability.
OK, so this is a brief overview of the legal process in the UK relating to the Iraq claims.
First, we have criminal investigations first undertaken by the Royal Military Police.
Would that lead to a limited number of court martials?
I think we're speaking around a handful and then then later on the establishment of I had the Iraq Historic Allegations team,
which was replaced last year. Well, summer 2017 by supply.
The service police investigation with in many ways appears to materialise as sort of a mini.
I had one reason at least, that I had was close, but that there were significant political opposition to, uh, to the way I had operated.
There was a team of and uh,
it was called the Red Snapper Group involved and and I had which faced a significant significant criticism for the way investigations were undertaken.
Uh, so but what happened then after after I had was closed?
What was that supply was was established was has operated at the seams under even less transparency than what was the case with with.
I had, uh, a notably neither the force of I had nor SPL.
I have led to any successful, uh, trial and convictions and that is in by itself.
And quite possibly you have more than you have.
You have several thousand claims and and a few were forwarded to the Service
Prosecution Authority for consideration whether it could be taken forward.
But but that was ultimately decided and decided against then dusty Iraq fatality investigations,
which seems to provide a narrative account of of the immediate circumstances in which the death occurred and an
examination of the wider circumstances in which the death occurred and any lessons that should be learnt from that.
Some not not a criminal investigation, but uh,
and something that's intended to shed light on the broader circumstances in which any of these violations might have happened next to civil suits.
Uh, the public enquiries and judicial reviews that were many of which was were were discussed in the session before, before our lunch break.
So I won't go into too many details with that in this presentation.
And also and I think this is perhaps frequently frequently forgotten.
The military has conducted its own investigations into the Iraq claims published in the ACC and report of 2008 and and the Purdie report of 2010.
And and then finally, this is not a legal process, but something that's worth mentioning.
I think the Mod has established a so-called Systemic Issues Working Group, which aims to address wider issues.
But information and the follow up and the findings of the of these groups have not been been very clear,
and the group seems to focus mainly on issues relating to training needs,
which is obviously very important issues, but does not really look at issues relating to the adequacy of investigations and and prosecutions.
So this is to summarise our assessment that we undertake in this discussion paper of these, uh, of these investigations in the UK and one.
It's important to note that there's been almost a total lack of outcome in the criminal justice sense of long lasting investigations.
So these are processes that have been going on for many years.
They've been rather costly. They have involved a large number of investigators.
I had, I think at its peak was employing around 150 investigators.
So that's a fairly large government agency when you think about it, uh, less so under on display.
I don't have the exact number, but I believe it's around.
It's been around 50 and so significant resources in a sense have gone into these investigations.
But that's not been a single successful prosecution coming out of it.
And why then? It's not, uh, there seems to be different issues at play here.
One is perhaps that, um, it's also recognised by the UK,
its own legal system that the people employed by I hadn't laid on display were not necessarily experts and and war crimes.
So that might be one issue that you're using former police detective basically to investigate crimes in Iraq.
Uh, secondly, of course, they are questions relating to getting evidence for crimes that did happen and now many years ago and in a different country.
And as Nicholas touched upon in this presentation, in a situation where, uh,
it must be immensely difficult to get to get access to that information and evidence.
That being said, certain evidence does exist.
And again, Nicholas, you touched on that in your presentation that there are video recordings of at least many of the interrogations that took place.
It is not exactly clear to me how these are being reviewed,
but the picture we got from speaking to investigators and prosecutors is basically they do not.
They do not believe that any of what any of the interrogations that have been recorded demonstrate that war crimes were being committed.
So of course, that then raises the question what standards, what threshold were are being operative with within?
I had SPL, AI and DSP in terms of deciding what amounts to a war crime.
Uh, assuming you would see at least some of the five techniques being deployed in the context of those interrogations.
So does that mean that the standard set is that that that does not amount to something that needs to be investigated and prosecuted?
Secondly, lack of attention to systemic and systematic issues, and it seems clear that that I had was established in the first place to, uh,
to provide a mechanism under human rights law, which in a sense justifies that you go you go for these allegations on a case by case basis.
But that's that's somewhat different if you're speaking international criminal law,
because here the focus is really on, um, at least within an ICC context.
The focus is primarily on those who might have an organised, planned and otherwise responsible at a higher level for, uh, for the alleged crimes.
And I have personally seen nothing in writing that suggests that either I had or SPL.
I have looked at these claims from a from the perspective of where they could be systematic and and
that despite some of the court findings that we spoke about in the session prior to the break and.
Political interference and lack of commitment to accountability. And it would be fair to say,
I think that there have been various concerns relating to the independence and impartiality of this investigative investigative mechanism,
some of them expressed by judges within the UK legal system.
And admittedly, certain changes took place and in the structure and set up of I had following that
criticism that it was not sufficiently independent under the human rights law and.
Even when those changes took place, it seems that the Ministry of Defence had quite a influence on how these investigative
processes that were meant to be fully independent from the from the media were in reality run.
And part of that could be due to the implications of the media having making the
decisions relating to budget and but the reports of other forms of interference.
Also, I think we can say. And then secondly,
it goes to that level of interference that I think the statements by government ministers that I that I gave some examples
on before that that that clearly created a climate where it's been very difficult for investigators to look into this.
And finally, lack of transparency. So I already touched a bit on that, but it's been striking the extent to which the government has a government.
Agencies have refused to engage this research and UM and in Italy,
delayed Freedom of Information request to then ultimately use the exceptions to say that they cannot be answered.
And I think I will round off this presentation by giving you giving you an example of one
such freedom of information request a response to a request from the attorney general's.
Office, so you see,
our question first goes to request goes to obtaining material relating to the government's submissions to the Office of the ICC prosecutor.
So it became clear to us in the context of this research that the UK government has made various submissions to the office of the Prosecutor.
Some of them dealing with issues of complementarity.
So speaking to Assumedly, to the case,
to legal processes in the UK and I highlighted in yellow here what I think is is the most significant part of the answer,
which is that the Attorney General's Office cannot give this information with reference to concerns of international relations.
So basically saying that if this information came out in the public domain, that would harm the UK's relationship with the Office of the Prosecutor.
And more broadly, if the ICC, on the basis that the ICC expects that these kind of submissions are confidential and are not put in the public domain.
And to me, that does not seem likely.
It does not seem likely that there could be anything in that submission that it might harm the UK's reputation, for sure.
But how could it harm the relationship between the UK and the ICC if it comes out in the public domain?
What the UK has to say and its own legal process that it seems very unlikely to me that that could be that that could be the case.
So here the rest of that quote.
And so that's just one example of a response to a Freedom of Information request that in this case, the response has been delayed since last summer.
So that's quite a while also.
So it has been extremely difficult to to get to get enough of this information, which is hugely, hugely problematic, we think.
And so I think I'll simply round off it with that.
Thank you. Well.
So this handover to Elizabeth. Hello.
Thank you. And huge thanks to the Bone Marrow Institute and to lead and to Melanie Jack, who had the original idea for this.
This seminar today and helped to organise it.
I'm going to speak today about an article that I'm submitting to the Journal of Conflict and Security Law this month.
It's an archival and documentary analysis of the British Army's Training Materials in Operational Law,
which currently includes the Law of Armed Conflict,
international humanitarian law, a mere sprinkling of relevant international human rights law on the use of force and on the treatment of detainees,
including prisoners of war, and also a module newly introduced since 2016 on investigations and accountability,
explaining to troops the risk that they may face prosecution at a court martial or indeed at the ICC for violations of international law.
I'm interested in the obligation to train troops in international humanitarian law,
because I believe that these preventive norms in international humanitarian law
are taken for granted are partly or look cynically expressed in the treaties.
And there's very little engagement with state practise as to how these norms are implemented.
So to focus just on training. States must disseminate financial as widely as possible, including to the civilian population,
and they must integrate the treaty, text the content they rolled into programmes of military instruction or training.
This is found in Geneva Law in Hague law and usually in Shell, but in common with other procedural norms such as the provision of legal advisers.
It applies in peace and in war,
and I believe in my interpretation of the Fourth Geneva Conventions and of weapons law that it applies in relation to the law of Nyack,
non-international armed conflict and international armed conflict.
Basically, a training obligation was suggested in the Oxford Manual of War on Land in 1880.
It became binding in the first Geneva Convention of nineteen oh six and it is now quite extensive.
There are also obligations in international human rights law to train members of the military,
including Article 10 of the Convention against Torture, which requires law enforcement officials,
civil or military, who have responsibility for detainees to be trained in the prohibition of torture and cruel,
inhuman, degrading treatment or punishment. The British Army's Valiant Shield training became my critical case study because
of significant flaws in that training found most clearly in the Bahamas,
a public enquiry report in relation to troops deployed to Iraq in the first phase of Operation Tillich in 2003,
and also because I was sceptical of the much vaunted reforms to this training that the Mod repeatedly asserted had taken place
at various stages without providing solid documentary evidence of the nature of these apparent improvements to training.
But as my archival research progressed, I noticed some patterns,
I noticed some historic patterns of assertion dating from just after the UK had ratified the four Geneva Conventions of 1949,
when it ratified in 1957, an assertion that I hl training was already taking place that mirrored these assertions.
That training had been addressed or implemented during and after the parliamentary public enquiry,
during and after the LCD public enquiry and frequently, but with no detail given in parliament.
I also noticed patterns of violation that were coming to the courts that were coming towards these public enquiries.
And in my archival research, I noticed patterns of violation in the prohibitions of torture and inhuman treatment shared between
channel and international human rights law and similar patterns of conduct recurred from Kenya,
Aden, Cyprus, Northern Ireland and Iraq.
And that calls into question the narrative after the bombings,
a public enquiry report that the cause of the death of Baha Musa and of the torture and
inhuman treatment of others detained with him was merely a doctrinal gap and a loss of
institutional memory within the military about the prohibition of the five techniques found
to be inhuman and degrading treatment in the case of Ireland and the UK in the 1970s.
So keeping those themes of assertion, violation and institutional response in mind,
I'm going to be answering three sets of research questions on the chronology, the content and the context of the British Army's training.
So I'm going to be asking when the British Army first implemented its training and how the history of training or its absence correlates
with those recurrent patterns of violations that I spoke about and going right up to the point of the facts found in the also-ran case.
So in 2003 and in 2007, and when the timing of when the Ministry of Defence implemented changes to this training,
then I'm going to ask how comprehensive the current training materials are, what is present and what is absent.
And then on considering the context which comes full circle, that's Thomas's research.
Why is it that there are what there is so much emphasis on training and preventive mechanisms?
While investigations into violations of international law by British armed forces are rushed to a close?
What does that hide from the historical record and what obligations are under emphasised?
So going back very far, there's no evidence that the British Army trained its troops in relevant air at the time of the First World War,
when the 1996 Geneva Convention did require such instruction.
But the historian Isobel Hull has found that Britain began to incorporate Elliot Shell into his field manual from 19 04.
Oppenheim and Edwards 1914 military manual reflects Hague and Geneva law in some detail, plus prohibitions on asphyxiating gases,
bombardment and the St. Petersburg Declaration 1868 on explosive projectiles
at that time and during the First World War and British Military Doctrine,
permitted reprisals and collective punishment of civilians, the destruction of their homes, but urged against hostage taking in that military manual.
And there's already a racist colonial mindset by the authors.
It asserts that the rules of international law do not apply in wars with, and I quote uncivilised states and tribes.
The Canadian researcher Frederick Makary, recalls that Britain was the only state at the 1899 Hague Conference to argue
that exploding Dum Dum bullets should be permissible in colonial warfare.
Until the 1944 military manual, superior orders were still a defence to war crimes.
But in the 1944 in nineteen fifty eight, military manuals and soldiers were then expected to question and,
if necessary, to disobey obviously illegal orders.
Yet the historian Hugh Bennett has found that by the time of the Korean War,
this obligation was not disseminated to troops, even though it remained in the military manual.
There's an interesting theme there about a distinction between state practise and opinion rests with the military manual being a panacea.
Isn't state practise being the failure to train? There are archival gaps in the syllabus for Sandhurst and the officers staff college.
We simply do not know if I was trained at that time, and neither the court,
the Court of Appeal nor the Supreme Court in the Q case in the killing of unarmed
civilians in Malaya shows any evidence that national servicemen were trained in relevant.
My own archival research for the period after 1957,
when the UK ratified the four Geneva Conventions tentatively suggest the DIETRO training was not taking place at all.
I found it a little hard to kind of at King's College London, some letters from Gerald Draper, a film for me,
former army lawyer who concluded in 1961 that there were statements to parliament that were simply untrue,
that the Geneva Conventions were being disseminated to troops. And his reason for this, for which I did not find corroboration in the archive,
was that he believed the personnel would become more wary of nuclear deterrence if they were trained in each other's principle of distinction,
and that therefore there had been a decision to delay the implementation of interval training and from the 1950s onwards,
both prior to and after the UK's ratification of the Geneva Conventions.
You can see these patterns of torture and inhuman treatment emerging and recurring the hundred and
fifty thousand people who are estimated to have been detained in Kenya between 1952 and 1960.
Many suffered beatings, stress positions, rape and sexually degrading treatment.
In the mature case. In 2013, the UK gave a belated 14 million pound settlement on just two days ago on Wednesday.
The government reached a £1million settlement in respect of 33 torture victims who were detained in an uprising in Cyprus between 1955 and 59.
And in Aden, there were other types of interrogation technique types of inhuman treatment in common with Northern Ireland and then Iraq.
Detainees suffered false walls standing in forced nakedness and beatings,
and that occurred despite joint directives from the A.P., which paraphrases much of common Article three.
A delayed attempt in the 1960s for the UK to acknowledge the relevance of the shell of non-international armed conflict.
The recurrence of similar techniques, including an Aden, where detainees were forced to sit near air conditioning units,
which was similar to the Hermoso and those detained with him being forced to sit in a generators.
The recurrence of those similar techniques casts doubt on that consensus in the Bahamas,
a public enquiry report and subsequently in the rhetoric that followed that there'd
been a mere loss of institutional memory about the prohibition of the five techniques.
And this is why, through deficits and training deficits in doctrine that this inhuman treatment occurred.
I also found patterns that required of institutional response. So it is not at all new since the war in Iraq that some victims have been
systematically disbelieved or it has been claimed that they exaggerate the testimony.
Nor is it new the media's arguable differential emphasis on physical versus mental ill treatment.
So the Compton committee report into the five techniques in Northern Ireland largely ignored the risk of severe mental suffering,
focussing just on the infliction of severe physical pain and suffering.
So all of this proves a correlation between patterns of violations and those prohibitions of torture and inhuman
treatment shared between H.L and international human rights law and patterns of deficient or absent training.
It does not prove, of course, causation between the absent or deficient training in health and the existence of those violations.
Onto Iraq, then the Bahamas, the public enquiry collected evidence on the training that found that the
relevant individual training directives 1998 at the time of the first operation.
And then again in 2003, required soldiers to attend 40 minutes of annual training in HL.
Much of it was based on an outdated Cold War era video, a PowerPoint presentation and an aide memoire for soldiers pre-deployment training.
Shell did not begin until, I believe, a second phase of the operation,
and I found that the training time given to each other was in fact half that dedicated to training in the dangers of substance misuse,
which says something about priority setting in relation to training, especially considering the complexity of ISIL and its prohibitions.
Bahamas are training Bahamas, a public enquiry reported.
Find longer training at Sandhurst, but still a considerable level of generality in that training.
There was no indication that the training covered the prohibition on the five techniques.
Witnesses to the enquiry remembered being told to treat soldiers and to treat detainees humanely, but they could not articulate what that meant.
And that illustrates the dangers of simply narrating or disseminating prohibitions and requirements in each other.
By 2007, when Mr. Wahid suffered beatings, sleep deprivation and sensory deprivation with blackened goggles, hooding had already been prohibited.
And in 2006,
an operational law branch had been established with the law of Armed Conflict included within the new military annual training tests on that.
But at that stage, 2006 and for the next few years and the law of Armed Conflict was combined with values and standards,
the British Army's approach to training, military ethics, substance misuse and equality and diversity awareness.
So while H.L was taught in a 22 minute video and it was tested in 10 multiple choice questions,
and the army legal services were much more helpful for my research than for Thomas's because I do
have documentary evidence from Freedom of Information requests for these historic palace papers,
for the relevant directives and for recent and current instructional materials and tests.
Even in 2008, when the Law of Armed Conflict gained its own military annual training test,
the questions that examined troops knowledge sometimes reflected policy rather than law.
So to take just one example, the question What is the main reason why you should always treat the local population humanely?
How does its authorised correct answer? It will help to win the battle for hearts and minds.
So there's a broader strategic purpose of justification that has nothing to do with the binding quality of.
Jumping ahead a little bit to 2011 and the conclusion of the Bahamas, a public enquiry report.
I think it's instructive that it took an external body to push the mud into substantive action on training and training,
then gradually began to improve. But my findings were that contrary to repeated assertions, to parliament and to public enquiries,
by the end, those reforms to training were not implemented and done by 2011 and by 2014.
But there was a much more gradual and nuanced progress towards improving the comprehensiveness,
but not necessarily the evaluation of training materials and knowledge.
So I found minimal improvements from 2004 to 2011 and more substantive but still gradual reforms from 2011 to 2016.
Particular turning points are the Comprehensive Operational or training directive of February 2014 and
its implementation in a comprehensively expanded much seven on the law of Armed Conflict in 2015.
There was also an instructional DVD on the handling of prisoners and detainees known in British army parlance as sippers captured persons.
That does systematically tick every box that the recommendations accepted by the mod that were made in the Bahamas, a public enquiry report.
So I'll think about that content. But I will say that whatever nuanced optimism follows on the content of these current training materials,
it's worth pausing and noting that this is a tragically belated implementation of longstanding treaty obligations to train troops in.
So how comprehensive of the training materials, I'll go first to the Operational or Training Directive 2014,
then briefly to the use of force module and then to the Sippers Mod module on the treatment of prisoners of war and other detainees.
So the Operational Training Directive reads like an ambitious law school syllabus for an initial course.
Both soldiers and officers must understand the difference between ioaC international armed conflict and Nayak non-international armed conflict.
They must all understand to be able to implement the principles of military necessity, humanity distinction, proportionality,
the rules on target identification and on civilians directing parties directly participating in hostilities
and a rule that has considerable nuance and cannot be speedily taught in a DVD of a couple of hours duration.
Also, they must be able to implement precautions and the duty to end an attack, which might be indiscriminate.
They must recognise and protect the ICRC, these emblems, cultural properties and works and installations containing dangerous forces.
They must comply with weapons, prohibitions under stone perfidy ruses and the prohibition on using human shields.
Prisoners of war, civilians, medical and religious personnel must be protected.
This directive is, I believe, a good faith attempt at comprehensive training.
It covers all basic and continuation training to the armed forces, both soldiers and officers.
The only thing outside its scope is specialist training of army legal services lawyers,
and I'd noticed a gap in the content on what we would call Article five of the U.S. if you're looking at it from a human rights perspective,
and I believe that gap is probably because that the issues of liberty and security and the lawfulness of detention are dealt with by army lawyers.
Training is scripted and it's delivered on a train the trainers basis with army
legal services officers training non-lawyers and who must then stick to the script.
Stick to the PowerPoint. I'm concerned about the use of terms of art and because of the number of soldiers
who struggle with literacy or who have who struggle learning in class or in context.
There's also no norm by norm evaluation of soldiers understanding in the March seven test results.
The data that's collected is merely a tick box approach in a personnel record as to whether or not they have received the training in.
And the directives also silent on the lure of non-international armed conflict,
which could be very progressive in terms of teaching soldiers or the norms which apply in international armed conflict.
And so that as a default and as a reflex, they will apply these more expensive protections to non-international armed conflict deployments as well.
So going to the instructional DVD on captured persons.
The script is a detailed tick box implementation of all accepted by a massive public enquiry recommendations on this point.
It's an amalgam of the Third Geneva Convention and the prohibition on the five techniques.
Stress positions are defined with quite a subjective high threshold as painful, extremely uncomfortable or exhausting to maintain.
That could be a problem in the application of this if a soldier who's trained to a considerable degree of
physical fitness cannot adequately empathise in the moment with the exhaustion of a detainee who is not.
Hunting is prohibited at any time for any purpose.
And I'm quoting deliberately keepers must be protected from assault, abuse and any other humiliating or degrading treatment.
This is a considerable improvement on simply repeating the requirement for humane treatment, but it does not attain the standards.
In Article 17 of the Third Geneva Convention, in which prisoners of war he refused to answer questions may not be threatened,
insulted or exposed to any unpleasant or disadvantaged disadvantageous treatment of any kind.
Couple of gaps. There is no explicit prohibition on sexually degrading treatment.
If the Mod were to have been proactive in its reform of its training materials,
it could have looked at the full range of ill treatment being alleged and not
merely the ill treatment found proven by the Barhoum use of public enquiry.
They could have made sure that prohibitions on degrading treatment addressed forced nakedness.
Abuse occurred in Aden, addressed intimate searches that were experienced as being invasive or that were conducted for the amusement of soldiers.
Physical vulnerability is acknowledged more readily. The elderly appeared implicitly to be acknowledged in the text.
Some CPAs may be vulnerable persons and special rules may apply for them.
The prohibition on verbal abuse is too briefly acknowledged, reflecting at the time that this instruction material was designed.
The Haider Ali Hussain case on Challenge Direct.
So I predict that from these training materials,
they will be a considerably greater understanding of the prohibitions on inhuman and degrading treatment and of torture of detainees.
I predict also that the failure to have a proactive approach to the reform of these
training materials means that some of those other recurrent patterns of violations,
some of those other types of ill treatment may recur in future deployments unless the training materials are reformed to conclude with some context.
Historically, the NATO training obligation was long delayed in the U.K.,
and a high level research suggests this might have been in order to maintain the legitimacy in the armed forces of the nuclear deterrent.
Deficient and absent initial training merely correlates with patterns of violations,
particularly violations of the prohibitions on torture and inhuman treatment that are found in both ISIL and international human rights law.
Gradually, following the massive public enquiry, so especially from 2011 to 2016,
the Mod has reformed and improved the comprehensiveness of its training to soldiers and other land forces.
There are silences, not least on sexual humiliation and sexual assault.
There are also silences on forced exercise and exposure of detainees to extremes of temperature.
These may be a risk factor for violations in future deployments, but in this broader context,
the House of Commons Defence Select Committee Subcommittee has written that violations of HL in Iraq and Afghanistan
were caused by deficits in training that no soldiers should be prosecuted if they received this deficient training,
and that therefore all investigations into violations of international law in Iraq should be closed.
I believe that this imbues training with more explanatory power and more exculpatory power than it has.
Financial training is required by treaties. It's arguably necessary to prevent violations, but it's far from sufficient.
And this rhetoric also highlights from the historic record the role of the command chain in the knowledge of and
failure to prevent torture and inhuman treatment in Iraq and in British military detention across the decades.
The training reforms are genuinely comprehensive, but they don't obviate an obligation to investigate and prosecute.
So training reforms can be a neat bureaucratic veneer for the horror of
violations and training and obligations coexist with investigatory obligations.
Attending to one does not preclude the other. Thanks.
OK. So as I indicated at the start of the film.
Went out, we now have some time for questions and discussion of the issues that have arisen in this panel,
and then we'll broaden it out to reflect on the day as a whole.
So Siniora stands up for it yet. So my main question is, so if somebody is just getting on my team.
So we've spoken a lot about admissions and training and failures in training and gaps in training.
Where do people learn to torture? Um, there's a kind of notion here that the sort of whole systemic breakdown these are failures.
There's a failure as a sort of standard, but I don't know how to torture.
So where did people learn to torture? We collect a couple, thank you.
Clive Waldron, Human Rights Watch, and thank you for all the presentations. The specific question, I think mostly for Thomas,
but it's particularly why do you think there's this complete failure to prosecute under the doctrine of command responsibility?
I probably most people know that, but that's the specific doctrine which is in the UK and under the ICC.
Out of command is civilian and military can be held criminally liable for failure to prevent or to hand over the matter for prosecution,
both by their failure to them on the military side, including in the prosecution of kind of Mendonca, but also on the civilian side,
including just one example of the Bahamas enquiry seemed to show that some ministers had ICC and other evidence of abuses going on.
Those community responses to those questions first, and then we'll take some more.
Mr. Where where do people then be tortured?
The answer is that there is an institutional memory of these techniques, but there's also arguably an embodied memory of these techniques.
Basic training, speaking generally in many militaries, involves physical punishment and involves the experience of fear,
it involves exposure to extremes of temperature, often hunger, fatigue,
at least verbal abuse from the command chain in order to instil that it is a command chain.
The historian Joanna Burke has talked to a considerable extent about the brutalising effects of basic training and military culture
that then might either shape and legitimate soldiers preconceptions as to what might be not so shocking when applied to detainees,
but could also allow them to re-enact those particular forms of torture and ill treatment.
And the Bahamas. A public enquiry spoke about exposure to conduct after capture training in which personnel were exposed
to unlawful treatment that they might have faced if they were captured and detained as prisoners of war.
And one of the recommendations at the bottom is a public enquiry report was that
the fact of the unlawfulness of these types of conduct was to be more emphasised.
But I think your question points to a greater problem when lawyers gathered to talk about these problems,
because our research questions tend to focus on the treaties, on their obligations,
on procedures to present, and they don't focus on the interdisciplinary questions.
And my doctoral thesis actually does focus on some of those interdisciplinary questions,
but it entirely depends how you're framing your research questions and for any particular audience audience.
So I was speaking to a group of Quaker campaigners against torture a couple of months back,
and I wanted to ask how these training materials, what they're expected to change and what they're not expected to change.
And under the second heading, I was clustering points of attitude,
points of institutional memory and arguments of what I'd call full reciprocity that much like Alexander Blackman said,
in relation to his victim in Afghanistan. It's the least that he would have done to us.
So where do they learn to torture? Not specifically on the techniques. Where do they think that torture might be legitimate?
It could be. Just.
I mean, I think I just raised this question in 2003, because when I went and challenged the interrogators,
the interrogators said this is part of UK doctrine.
So I reported that in almost contemporaneous memo to the general and I said it, I was told it accorded with U.K. doctrine.
It may well accord with doctrine, but it breaches international law. So the response I got was this is doctrine when I saw the five techniques.
I then saw the chief intelligence officer who showed me a document.
With this in. I said, Well, I didn't write it and I wouldn't have approved it.
But when it came to the Bartomeu's enquiry, that document couldn't be found.
So I don't know. The other interesting thing was that the interrogations were not part of divisional troops.
They were built on extra. And they said, We don't answer to the division.
We answer to London. I raised this in the House of Commons in a select committee enquiry, and no one knew what we answer to London mean,
so interrogators were coming under someone's separate command, which again raises the question to what extent were they being directed to do this?
It's really interesting to pose the question Why did the five techniques not die out in 1978?
If it's part, if it's part of doctrine, that's one answer. The other answer I've heard is the escape and evasion exercises that would happen to you.
Therefore, you did it to them as. But is that really a plausible explanation?
And it doesn't really fit with the narrative that I was given when I first challenged it.
So I just threw that in for sort of wider context. Thomas, to respond to this question.
And thanks, Clive. I think I think the answer to your question is it's very straightforward because there's no trust,
no interest in seeing that happen near in the military leadership, at the level of political leadership and.
I can only suppose that the reason for that is exactly what Nicholas points to here, that this reaches far in the system.
So if you allow investigative mechanisms to to pursue that route, then you might end up at the most senior level and the Modi.
So to me, it seems clear that this is this is very deliberate that you create in this case,
a big a big agency with 150 employees to to investigate these cases.
But you do it in such a way that only the focus is only on direct physical perpetrators.
And uh. I think some of our recent research findings demonstrate that whenever investigators
were pursuing some kind of some line of enquiry that that would move beyond that,
then investigative teams would be split apart of broken down and terminated.
So that makes it very difficult, of course.
And then at the same time, of course,
it seems the UK has been trying to portray it to the office of the ICC prosecutor that they are indeed looking at a systemic issue.
So, uh, again, you've got you've got a conflict there and and just a quote on that.
So now I said in the presentation that I think I think the Office of the Prosecutor's Report and
preliminary examinations in November 2018 seems seems quite conclusive in terms of complementarity.
That being said, there is one paragraph that says the information available indicates that the focus of the UK is investigative and prosecutorial.
Efforts regarding alleged crimes in Iraq has largely focussed on low level physical perpetrators and mid-level supervisors,
but then come a while, also examined pattern evidence. So I think that can be read, perhaps in different ways.
Can I invite Melanie and Nicholas actually to come and join us here because we're running out of time, we'll continue to take some questions.
But if you can come and join us, maybe we can add one one seat, said Linda.
Can you give them Mike? So we'll have one roving Mike and maybe one Mike for the two of them here.
So anyone have any further questions to pose to either Thomas or or Elizabeth?
Yeah, thank you. And we have sort of the European Centre for Constitutional Human Rights,
and my question would be maybe particular to Thomas about the impact of the ICC preliminary
examination had on developments here in in UK domestic proceedings and and politics.
Yeah, maybe you can elaborate a little bit on that question. Are you thinking about that?
Any other questions just for Thomas and Elizabeth?
Let's take one more. Thank you.
I'm Sheila from Leeds. A question for Elizabeth in your research, which seems to have been very in-depth.
Have you come across a training, doctrinal or guidance issued by the military about.
To troops about what how to how to, um,
to resolve inconsistencies between its military doctrine in the context of operating in Kuwait with coalition forces
and and and and how those principles from other forces are integrated or not integrated in in U.K. doctrine.
Thomas. And I think that it's a really important question addressed,
not least because the Office of the ICC prosecutor operates with the framework of positive complementarity.
So saying that it's a policy objective basically that by conducting preliminary examinations that is seen to prompt
encourage national authorities to take more seriously obligations to investigate and prosecute domestically.
And I think in the case of the UK, it certainly had an impact one in terms of keeping alive,
probably a an agenda that that might otherwise have easily been been shut down at an earlier stage.
I think that's important. Secondly, it probably kept alive institutions for longer than what they would otherwise have been kept alive.
And specifically, I mean, I mean, I have the worse political opposition to the existence of I had early on and.
And if you read the considerations that took place in the in the coming the Commons Defence Committee, then exactly that being quite transparent.
This case actually that exactly the the concern was what would happen if we if we close.
I had made that trigger for the ICC investigation, but will also make you.
Then the defence committee came to the conclusion that it was probably rather
unlikely that a full investigation would nonetheless be opened even if we shut down.
I had so, you know, to summarise,
I think I had would likely have been closed early on and and I perhaps never established had it not been had it not been for the ICC.
And you see that, in fact, I think it gives.
It promotes the existence of the preliminary examination, promotes exactly what we're doing right now.
You know it, it's it gives merit, I think, to to further engagement by human rights defenders, by academics and and uh,
in a sense said standards for what the UK ought to do at least right so soon from that perspective.
I think it has been important and and will probably remain important as long as it stays alive.
She told us this presentation, his main presentation you might have at the airport.
What's the point? Now he's giving us a new of interviews, which would have been a nice place to add, but we have other things to talk about.
Yeah, Elizabeth. Oh, I wish I had material on this and I don't, and I've been trying to think about why that might be.
I've had access to the directives and to basic and continuation training, instructional material and examinations.
I was told from the beginning that I would never have access to pre-deployment training on mission specific training.
It's possible these are usually classified because they're based on the rules of engagement.
It's possible that discussions on how to deal with these differences of interpretation or outright
disagreements between states in multinational operations might be in that pre-deployment training.
Out in front, it has a practical perspective.
I mean, work one or two corrections on what you said.
I know because I was in the land warfare centre, so we did do pre-deployment training prior to tell it one, my officers went up to 16000 troops.
I give gave them a set script and I did use the words humanity and dignity.
I take your point, though, as to what does that mean to a young soldier?
When I say humanity and dignity to us, it's all obvious, but to them it may not be and clearly wasn't.
We did then implement a new training regime with a very advanced video,
which I don't know if you've seen it, but it was, you know, which I thought was quite good.
Yeah. So I thought the video was quite good. And then we had the problem. To what extent do they understand it?
Because after the Camp Bread Basket case, or if you read the interviews, they said, Well, didn't you have a lot of armed conflict?
Training is said. Yeah, but it's just a blur. So they did. They did admit that they'd been to it.
And all right, it wasn't great. It was pretty primitive.
But there is a bit where they capture civilians in a Cold War scenario and it says, stop, you must not abuse civilians, you know?
You know, it's not up to date and it's not, you know, attracted particular.
But they did have that training and they had it every year. But they said it was just a blur.
And I just put in front of a video. So we then organised a system whereby we tested them.
But we then had the problem where we said we're not going to deploy anyone without testing them to show they've understood it.
And then we had the problem. A what level do you set it up where some will have a reading age of 11?
So how do you make it so clear that an 11 year old son with an 11 a capacity of reading the 11 year old and the brigadier
with post-graduate qualification through the Yin-Yang is insulted being put in front of this and given this test.
And then if they failed it deliberately, they were non deployable.
OK, so you see the horns of the dilemma that that's not easy, but you know, obviously we strove to to explain to them.
But I'm actually by what you've said.
I'm hugely encouraged with the the way the development and training and the level of sophistication that it's got to.
And I take from all this, despite all the legal mess and the litigation and the casualties,
both legal and otherwise that we've got to a better place than we were in in 2003.
So I'm rather hoping I'll give you an anecdote.
I spoke to a Royal Marine last year and I talked to him about the Blackburn case, and I was really interested to see what the response would be.
And he said, No, it was wrong. We will support our men if they get caught up in these things.
But what he did was wrong and have no truck with it in the Royal Marines. And I thought, well, that's really interesting.
You know, he crossed the line. We will support our men.
We'll pull them out. That's part of our military ethos. But what he did was wrong.
We've got no time for it. So I thought, well, that was actually a really encouraging sort of anecdote as to how the army were perceiving these things.
So I'm actually, I must admit, I'm not pessimistic at the end of this stage of proceedings because it's got some way to run.
But I think we are on an upward curve. Things of this Labour Party, things are going to get better.
That's tempting fate, isn't it? I'll have that back. A very brief right of reply on that point.
I did acknowledge in my presentation the Army Individual Training Directives 1998 and 2003 and folded that in with the findings
of the Bahamas public enquiry on the paucity of training in pre-deployment and pre-deployment in Operation Telarc one.
There were directives between Operation Tell It one an operation to two in which I believe you were involved,
Nicholas, including the prohibition of hooding. And that then meant that the pre-deployment training in Operation two was that
much more substantive than the pre-deployment training in operation to leak one.
But a further criticism made by the public enquiry report was that the Cold War era video
that I also mentioned that troops received as part of their basic and continuation training,
then that training and the simulations that were given in practical training stopped at the point of capture.
So there wasn't merely a doctrinal gap. There wasn't merely an institutional loss of memory as regards the five techniques,
but there was a complete lacuna in training as to how to treat the detainees once they are detained.
Now I accept that. I mean, but the other interesting thing about all of this is there's no such instance from the first Iraq War.
So 1991, we don't have these problems, so when I'm preparing myself going forward,
I take the lessons learnt file from the first Iraq War and I'm not wading into interrogation problems or problems with treatment on capture.
It is not on my radar. So it's really interesting to know why did that happen?
If we've got this post-colonial legacy running right the way through from, you know,
Kenya and all the way through to present day, why does that war get missed out?
What happened to bring that about? And that's really interesting.
I suspect it is because I do. If you really, really think it's both.
The first Iraq war in 1991,
I think things with an international armed conflict and I had actually an on the record interview with the then Army Legal Services Officer,
Charles Garroway on that point. And he explained his techniques of training in relation to the Third Geneva Convention.
And he said repeatedly to soldiers.
Imagine it's you in the mirror, it's you in the mirror, which is not, of course, imparting all the various prohibitions in a great deal of detail,
but it is apparently having this notion of parity, equality and potentially empathy.
Darius Rejali has written on the causes of torture and has speculated that there are various institutional and organisational
aspects of asymmetrical counterinsurgency conflict that include the units having much less centralised control and supervision,
which has implications for command responsibility in these types of non-international armed conflict.
And Kenya Hayden perhaps slightly less so Northern Ireland,
but certainly Iraq and aspects of Afghanistan would have had would have had those elements of
disaggregated action by individual units taking detainees under a largely uncertain legal framework.
Can I take? Sorry, can I just add one thing about different nations?
Anecdotally, there was anecdotal evidence the Americans thought we weren't going in hard enough.
So to what extent does that play into the way you approach things like interrogations?
I just throw that in as well.
I know there were a couple more questions from from the audience, so let me take, first of all, mark for communities and then before.
Yeah. I can't.
Sorry, Mark Latimer, from Ceasefire. I can't resist just adding to that last comment that I remember talking to a Sunni MP in Baghdad,
and she said to me, I was talking about Abu Ghraib and what the British were up to in Basra.
And she said, We pray that if our boys are taken, they are taken by the British or the Americans and not by the Iraqis.
But a fascinating debate about, you know what,
what hope people can do to train Scottie's about my child and whether or not there is enough command and control.
But I wonder whether actually that is missing the point.
It's the command and control that is the problem and probably more at the very highest level, the political message that is being sent.
I mean,
I think the Blackman case has been referenced three times already that extraordinary video camera footage that keeps on being played on the news.
I'm sure you're all familiar with it. It's extraordinary for a number of reasons, not least because he quotes from Shakespeare as he's killing,
but also because he cites the Geneva Conventions.
Here is a is a man that doesn't just know that what he's doing is wrong, but he can cite the legal instrument that prohibits his action.
But, you know, 18 months ago, we have a minister.
When asked about returning foreign fighters from Syria to Britain, and he says, actually, they shouldn't be returned, they should be killed.
Now, it's slightly ambiguous, perhaps in the worst construction, clear promotion of a war crime,
and it's the way in which when the abuses detailed when they come up,
this strategy of either denial or justification by politicians or by always
retired members of the armed forces that are dragged up by the media to come on,
this is the really dangerous message. So I'm not so sure it isn't the army lawyers that we should be taking to task.
I think we should be taken to task ourselves as human rights advocates because we're not confronting those deliberate,
very dangerous arguments that are being put from the highest level.
OK, final question from the audience.
I just wanted to to come back to this question of training and institutional culture.
To what extent you you're engaged.
You've engaged with this sort of work on canteen culture or police culture that sort of norms versus cultural frameworks.
Because I mean, there's as I've been hearing today,
I keep thinking about the differences between the way that the police respond to certain accusations.
I mean, if you look at the sort of whole process of a response to institutional racism in the police and the Metropolitan Police,
particularly how the how they have gone about trying to transform that institution,
why is there no engagement with this at the military level, at the sort of sense in which we had, we take this on board.
So that's the one point sort of as a sort of policy question, why are we not engaging with how these cultures breed and develop?
And the other point is that there seems to be a missing trick here with the with the positive aspect of Article three,
because we look at everything as sort of investigative frameworks,
once the effect of once the torture, harm or the inhuman or degrading treatment harm has occurred.
But what about the positive obligation aspect? Is about prevention.
To what extent are we making arguments within that context of saying Article three requires the prevention of torture?
So it's just past three o'clock, one of the things we wanted to do was to end the day by sort of looking to the future and thinking about what the
future might hold and wondering if we could just do that by directing one question to each person on the panel.
Related to to the future, my first question is very which will be directed to Elizabeth,
this sort of very it's close to, I think the question the ARE was asking about training.
It's not quite about the future, but it's related.
And instead of trying to tie together what Thomas was talking about and what Elizabeth was talking about,
Thomas was talking about the investigations and was talking about the ICC proceedings.
And I was wondering, Elizabeth, is there any have you found any evidence that the improvement in training that you were talking about
is influenced in any way by some of these activities that are going on in relation to investigations?
Some of these activities that are going on in relation to attempts to prosecute. And if we add your second question to that as well,
is there any evidence that some of these improvements in training are a sort
of response to the idea that we have an obligation to prevent these things,
whether it's an obligation in human rights law, a child? So that's your question.
Thomas, I was going to ask you a question about. Again, looking to the future of the ICC.
So the ICC engages in this long process of preliminary examinations and your prediction is, well,
it looks like it's going to sort of come to nothing in that you'd sort of think they will in the end, just close it down and nothing will happen.
One of the things you pointed out that the UK said should happen with these ICC preliminary examination is that there should be time limited.
It's all gone on too long. And I wanted to ask you,
do you think that's a good thing and do you think that will happen at these preliminary examinations will be time time limited?
It's not your question.
Melanie, your questions about the cases that you've been involved in and that you described and you set out for a set of legal issues.
I'm just wondering, are there some legal questions that you think are still going to come in this litigation as it goes forward?
Are there some legal issues that are sort of on the horizon and that we should be thinking about now?
So that's your question. Nicholas, your question relates to, you know,
you describe for us very vividly the difficulty of actually implementing these obligations in the context of an armed conflict,
particularly detention review and sort of vividly saying, how are we going to do this?
Well, we now have a judgement from the High Court on Appeal saying, this is what we have to do,
some sort of putting that question back to you, how are we going to do this?
How is the military actually going to implement and is it possible or is there some way around it to first back to Elizabeth?
No question about training. Yeah, I think I have to answer both limbs of your question in the negative.
So firstly, is there any evidence that these improvements in training are influenced by investigations and prosecutions?
Only thinly in the sense that the public enquiry report gave rise to recommendations
that were then subsequently implemented as a matter of general ethos,
the No. The cause of change that be in the opposite direction.
The model asserts that because they have improved the training, therefore there is no need for the investigations.
Therefore, there's no need for public enquiries to follow.
The second question Is there any evidence that these improvements are motivated by an
awareness that there are preventive obligations under the international human rights law?
Truthfully, no. I think it's seen as a bureaucratic requirement that has had to be politically necessary.
I do believe that the individuals designing the training have done so in good faith and very comprehensively.
But that's not the same thing as understanding and engaging critically with the jurisprudence of the Law on Prevention,
which I can now only think of the McCann case in relation to Article two.
I think the Strasbourg jurisprudence on investigation is much stronger than on prevention in relation to Article three.
And yes, I think they need to focus very much more on prevention and on overarching command responsibilities to prevent violations.
OK, thank you. Thomas, your question of preliminary examinations at the ICC?
Yeah, thanks, though.
And I think your question probably hints at the fact that these examinations are being conducted and not necessarily a very consistent way.
Also that you have certain you have some examinations that have been going on for years and years, some even more than a decade,
whereas others are of an investigation as requested, perhaps only after one side, even weeks of examination.
So it seems there's a lack of consistency in how and how the Office of the Prosecutor approaches these explanations and what we see time limits.
I think the OTP for sure will not be would not be happy to see that being introduced.
And and the most obvious way at least of introducing it would would probably be through,
I mean, D.O.T., notably policy paper policy stand out of some sort.
So I think it's unlikely that that will happen.
I think my personal view is that it would be good to have some kind of standards guiding how explanations are being conducted.
We already have some and in the policy paper, but but to have more guidance also to ensure more consistency and and perhaps part of the challenge in
the sense goes to an understanding within the office of the prosecutor within certain parts of the
Office of the Prosecutor that I think came out quite clearly in a blog post by Emmerich Emerick here
on the block that you are at a saying yourself that also the ideal talk and where it seems to me,
at least that is basically saying that yes, in a situation like Columbia, we do operate, but we do want positive complementarity to happen.
Um, and we think that has been achieved, at least to some extent, it seems she's saying, whereas, uh,
it would be a misunderstanding to think that that is what the office runs in a situation like UK Iraq and at the same
time saying that whatever the office does is simply regulated by the statute so that no policy choices and in a sense,
everything is is determined and with reference to, uh, to that legal statute.
So to me, if if that is what is being argued and that's how I understood that,
understand the post, then to me, that raises the obvious question why shouldn't it be?
Why shouldn't positive complementarity be pursued in the UK?
What is it that makes the UK different in the sense that you do not wish to promote the genuine domestic proceedings take place?
And of course, that could be different answers to that one is that one possible answer is that that I suppose it would be quite politically sensitive,
the ICC prosecutor, to say that it wishes to to influence how the UK is conducting these investigations,
even if it seems from my research at least that that that is exactly what the officer has tried through different forms of engagement with,
uh, with the UK government.
So I'm not sure if that actually really gives an answer to it, but it points to certain to certain challenges, at least to me.
Melanie, just quickly, any legal issues on the horizon. Yeah, you can use that link.
In cases in the Iraqi civilian litigation,
we still have some outstanding issues relating to cases in which the detainees
were captured by the U.K. and then transferred to US forces or Iraqi forces.
So these some of these issues went to with dealt with as preliminary issues,
joint liability and for United States for how they these principles then being applied to the facts.
That's still enough to be determined. We some of the pleaded cases, dealt with dealing with these issues and they're awaiting trial at the moment.
So this is this is one of the outstanding, outstanding questions.
I think that still, you know,
what is the UK liability for acts committed by forces of a different state in relation to Article three of tortures and mistreatment?
That's a that's an issue on. Sorry.
On the, uh, not not in litigation, but I think more generally, the Joan Jordan case is, um, outstanding issues,
but I think there's no much from what the Supreme Court seemed to have said in that matter that, um, it's they would be really unlikely that they'd.
Well, it's more likely that it would be barred by doctoring of credit to state the like to state.
So they would be really difficult to bring in this country. And.
I think it is still the outstanding issue as well, just thinking of an announcer due in the Court of Appeal.
The issue of press control over in the physical control in tests.
So player control of any individual in relation to shooting cases.
This has this is still an outstanding point as well, which it still hasn't been really determined.
Thank you. Yeah. How do we do this? I've had a few ideas.
I've had them before. First of all, derogation. So prior to commencement of hostilities, we derogate that could be seen as a combat indicator.
In other words, while you're delegating if you're not going to, if it if nothing is afoot.
But it depends on the proximity you have to derogate.
These are V actually taking part in hostilities, so that's the first thing to loosen up the regime to make it easier.
Secondly, as a separate legal team for the Prisoner of War facility, in other words,
we did ask for this actually in January 2003 that was told we couldn't have it, but I would ask my estimate for that sort of volume of prisoners.
One hundred and fifty lawyers. It's bigger than the entire institution.
It would swamp us,
competes on the take everyone to every lawyer out of the British Army would simply surge into prisoner of war camp if we'd had 15000 prisoners.
Third thing I do is I'd have a UK judge in charge of detention, in other words, the army says and again,
we asked for this, but we were told we couldn't have it by the Ministry of Defence.
We tried to bring a UK judge into theatre. In other words, we'd have the whole responsibility for prisoners to a judge.
And so you'd say in proceedings, I just hand you judge so-and-so.
He was in charge of UK ops. The reason why I don't like it.
Sorry, Justice Leggett. Fantastic, right?
Actually, no. But there are plenty of judge advocates with military experience, for instance,
who are used to living in the field, have a rank and so on and so forth.
So how the all over to the UK judge and therefore they can answer on behalf of the armed forces.
My resit, why was it stopped in 2003 because we were properly rendering prisoners?
In other words, they didn't want a UK judge poking around our detention facilities because the
Hamoody were conducting this and they didn't want an independent judicial oversight.
The last thing I'd say is that one thing I've learnt from all of this and I was a small footnote.
But having read in Cobain's book and seen the greatest historical sweep of this,
culturally, people have a real antipathy to legally scrutinising their armed forces.
And that's all the way through these campaigns.
But what the British do is that they deny it, undermine the complainants and now undermine the lawyers.
And then in 40 years time, they admit it. So I will probably be dead or in the nursing home, which case it'll all come to light.
That's my prediction. Anyway, on that note. OK, well, thank you very much.
First of all, to all of you who are here,
we've gone beyond three o'clock and I apologise for the fact that we've extended discussions beyond three o'clock, but I hope you found it useful.
So thank you to you for coming and thank you very much to all of the panellists who are here from the morning and from the afternoon.
Thank you to Laura as well for sharing. No thank you to Laurence Hill Cawthorn for not turning up the flu.
I mean, what kind of excuses? But it's been a fascinating day and I think really we've we've examined the whole sweep of issues that
have to do with compliance with law and with international law in the context of armed conflict,
human rights law, international humanitarian law, international criminal law, the interactions between these different branches of law,
both at the substantive level and also to some extent at the procedural level in terms of training investigations.
So it's been a fascinating sweep and also looking at the way in which these things operate in practise.
Both litigation practise practise at the coalface in terms of, you know, taking decisions operationally,
practise in terms of pre-deployment training, practise in terms of prosecutions and investigation.
So it's been fascinating. The last thing and the last word of thanks that I wanted to to reiterate really is to is to Elizabeth.
And she says also to Melanie, the two of you, for actually having the vision to bring this all together to engage in this discussion.
Organising it all, putting in all the hard work. So thank you very much to the two of you, especially.