The ICC prosecutor’s decision to re-open a preliminary examination into international crimes allegedly committed by British armed forces in Iraq has provoked strong reaction, and some confusion.
So what happens next and what are people saying?
How the Iraq preliminary examination will work
A preliminary examination is carried out to determine whether a full investigation is warranted.
Phase one: Collection of all information necessary to reach an informed determination on whether the alleged crimes are within the Court’s jurisdiction and whether there is a reasonable basis to proceed with a full investigation.
The prosecutor’s latest announcement came after a communication (a criminal complaint) lodged with the Court in January by the European Center for Constitutional and Human Rights (ECCHR) and Public Interest Lawyers (PIL) alleging systemic detainee abuse by UK forces in Iraq between 2003 and 2008.
Phase Two: Having received the information, the Office of the Prosecutor (OTP) then has to decide if it has jurisdiction over the alleged crimes. This phase marks the formal opening of the preliminary examination.
This requires looking at:
- When were the alleged crimes committed? The ICC generally only has jurisdiction over crimes once a State joins it. As the UK joined the ICC from its founding, this means that the ICC has jurisdiction relating to the UK since 2002.
- Were ICC crimes committed? The ICC currently only has jurisdiction over very serious international crimes: genocide, war crimes and crimes against humanity.
- The prosecutor will have to decide if the crimes detailed in the information it received in the communication from ECCHR and PIL amount to these international crimes.
- Where were the crimes committed and by who? The ICC only has jurisdiction over alleged crimes if they were either committed on the territory of a member state (territorial jurisdiction) or by a national of a state which has joined the ICC (personal jurisdiction).
In the case of the UK, the crimes were alleged to have taken place in Iraq. Iraq has not joined the ICC, or accepted the ICC’s jurisdiction, so the ICC would not have territorial jurisdiction.
But, as the alleged perpetrators of the alleged crimes were UK nationals, the ICC could have personal jurisdiction.
Phase Three: At this point the prosecutor is looking for and examining any relevant national proceedings and investigative efforts made into the alleged crimes to determine whether the case would be admissible before the ICC.
The Court will only step in if the state in question is not itself genuinely investigating or prosecuting those suspected of having the crimes in question – a concept known as complementarity that is at very heart Rome Statute system.
In the Iraq preliminary examination, the prosecutor will be looking for any cases being investigated or prosecuted in the UK or elsewhere in relation to the potential cases being considered for an investigation by the OTP.
Finally, the prosecutor will also look at whether the case is of sufficient gravity in terms of both quantity and quality to justify further action.
In 2006, the then prosecutor, Luis Moreno-Ocampo, decided not to open a full investigation in Iraq after a preliminary examination found that alleged crimes were not serious or widespread enough to meet the gravity threshold.
However, he noted that the matter could be revisited if new evidence came to light.
Phase Four: If all the phases above give reason to open an investigation, the final phase – interests of justice – provides a “countervailing consideration” for the prosecutor not to proceed.
The OTP has said that there must be specific circumstances which provide substantial reasons to believe that the interests of justice are not served by an investigation.
The interests of victims and if they would be better served in not opening an investigation are looked at in particular.
However, the OTP has said that a decision not to open an investigation due to the interests of justice would be exceptional.
A spur to national prosecutions?
If all of the phases detailed above were passed and the prosecutor believe a full investigation to be necessary, she would have to present her case to pre-trial ICC judges who would make the final authorization decision.
However, the UK is an ICC state party and therefore has the primary responsibility for preventing and punishing crimes.
So a crucially important aspect of the OTP’s preliminary examination is to encourage the UK to investigate, and possibly prosecute, those allegedly responsible for the alleged crimes in 2003-2008.
Decision provokes strong reaction
The prosecutor’s announcement has been welcomed by some, dismissed by others:
Director of Coalition member REDRESS Carla Ferstman: “Until justice is done and seen to be done in all outstanding detainee abuse cases, the ICC most certainly has grounds to pursue allegations of systematic detainee abuse by UK troops in Iraq. The ICC has jurisdiction if a country is unable or unwilling to investigate or prosecute. To date, the UK has failed to mount credible prosecutions which reflect the extent and gravity of the abuse allegations….”
Senior Legal Advisor at Human Rights Watch Clive Baldwin: “The UK is a founder and strong supporter of the court, but is often reluctant to apply domestically the standards the UK promotes internationally. In particular, there has been no indication that the UK authorities have ever applied the basic principle of international criminal justice called command responsibility—that is, holding military and civilian commanders liable for war crimes committed by their subordinates.”
UK Attorney General Dominic Grieve: “The Government completely rejects the allegation that there was systematic abuse carried out by the British Armed Forces in Iraq. British troops are some of the best in the world and we expect them to operate to the highest standards, in line with both domestic and international law. In my experience the vast majority of our Armed Forces meet those expectations.”
Academic William Schabas:“For the Court, this activity in States outside Africa where very strategic interests of major powers are involved is a welcome development. It will help to transmit a message that this is an independent and impartial institution capable of judging the strong and not only the weak.
Have your say – What do you think of the prosecutor’s announcement?