Is the United Kingdom Retreating from Accountability Norms? A Case Study of the Government’s Approach to the Iraq Claims and Broader Moves to Secure Combat Impunity

This paper uses a case study of the United Kingdom (UK) to explore how the approach to accountability for alleged violations of the law of war by Western democracies may impact accountability norms and more broadly the rule of law domestically and internationally. Specifically, the paper examines how British authorities have reacted to allegations of war crimes committed by its service personnel in the context of recent armed conflicts (with a focus on the conflict in Iraq), and questions how these legal and policy responses impact accountability norms and the rule of law in the UK and internationally. Drawing on interviews with UK and ICC officials, human rights lawyers, and others, the paper identifies the overall strategies devised by UK authorities in response to legal processes relating to the Iraq claims, including a preliminary examination by the International Criminal Court (ICC). While stating its intention to cooperate with the ICC, the government pushes for an end to ICC activity, in this regard arguing that abuses in Iraq were not large-scale or systematic and further citing to its own investigations, which it argues renders potential ICC cases inadmissible under the Court’s complementarity regime, even if these investigations have led to only very limited accountability for direct physical perpetrators. Further, British authorities have targeted the lawyers involved in the accountability processes by invoking a narrative of ‘ambulance chasing lawyers’, restricting legal aid and thereby leaving Iraqi victims with no or very limited legal representation. These challenges to the rule of law, the paper argues, are reinforced by broader moves of decision-makers in the UK seemingly aimed at avoiding a repeat of the legal processes that have emerged in the Iraq case. This includes a proposal to derogate from human rights law so that it no longer applies to situations of armed conflict as well as a proposal to enact a statute of limitations, potentially covering all previous conflicts. Moreover, there has been a striking absence of transparency with respect to the legal processes in the UK. Taken together, the paper argues, this raises broader questions concerning the commitment of western democracies such as the UK to enforcing the rule of law in situations of armed conflict. The UK, nominally a strong supporter of the international rule of law, has played a vital role in advancing the normative and institutional framework of international criminal justice and sponsored transitional justice and accountability processes across the globe. However, if the UK and other Western democracies create combat impunity for its own troops, this creates challenges for upholding accountability standards around the world and potentially undermine the legitimacy of normative and institutional frameworks that seek to advance the rule of law at the national and international levels.