The way a state responds to alleged war crimes and human rights violations says much about its approach to international law, transparency, and redress for victims.

My article in International & Comparative Law Quarterly explores one reason given by the UK Ministry of Defence’s investigatory bodies for closing investigations into alleged torture and other ill-treatment of detainees in military custody in Iraq: the assertion (without further evidence) that the allegations were ‘less serious’, ‘lower-level’ or in the ‘middle’ range of severity.

I found similar adjectives in the Al-Sweady Public Inquiry, which found in 2015 that Iraqi militia members had made a number of false allegations against British troops but that nonetheless, British soldiers had ill-treated detainees. The Inquiry Chair was keen to emphasise that the ill-treatment was ‘trivial’, or even paradoxically ‘unintentional’. Soon, I saw a pattern emerging.

In 2016, the Iraq Historic Allegations Team (IHAT) closed 68 and then a further 489 potential criminal investigations because they concerned ‘lower-level allegations of ill-treatment’, apparently because it would not be ‘proportionate’ to continue investigating. The information released was not linked to the facts alleged, so this assertion cannot be tested. In 2017-2018, the Service Police Legacy Investigations (SPLI) closed an indeterminate number of investigations because they were either at the ‘lower’ or ‘middle’ range of severity, where this is defined by the English criminal law of assault. Investigations were closed if alleged treatment amounted to an assault or actual bodily harm, but not meeting the threshold of grievous bodily harm, again with a reference to proportionality.

This focus on bodily harm misstates applicable international law. The adjectives (‘trivial’, ‘lower-level’) are arbitrary and conceptually under-inclusive. They fail to grasp the threshold of inhuman or degrading treatment in international human rights law, and largely neglect the investigatory obligations in international human rights law, international humanitarian law and international criminal law. There is no proportionality limitation in the negative (prohibition) or positive (investigatory) obligations in Article 3 of the European Convention on Human Rights, nor in the equivalent obligations in international humanitarian law and international criminal law.

Courts-martial do have jurisdiction over these crimes, so why close investigations before prosecutions might take place? Two hypotheses are possible: either that UK investigators have a very poor knowledge of applicable international law, or that there is a policy choice not to apply it.

If the latter is found to be plausible, it might affect the Office of the Prosecutor of the International Criminal Court’s ongoing preliminary examination into the UK’s treatment of detainees in Iraq. The OTP is scrutinising the UK’s investigatory processes, to see if it is willing to conduct a genuine investigation of its own.

UN treaty bodies are also concerned. An earlier draft of my article was cited in the Joint Civil Society Alternative Report to the UN Committee against Torture, and then quoted by the Committee in its Concluding Observations on the UK’s 6^th periodic report.

Elizabeth Stubbins Bates is a Junior Research Fellow in Law at Merton College, Oxford. Read her article, “Distorted Terminology: The UK’s Closure of Investigations into Alleged Torture and Inhuman Treatment in Iraq” from International & Comparative Law Quarterly.