A brave move by the ICC or an exercise in futility? | Opinions

The International Criminal Court (ICC) in The Hague was established as a permanent criminal court to hold political and military leaders accountable for war crimes, crimes against humanity and genocide. As an institution, it has not met expectations and impunity continues to prevail. However, that could now change. In a brave move by the ICC Prosecutor, Fatou Bensouda, her office has opened a preliminary examination into the situation in Iraq. The examination is not against the United States or the Iraqi government as one might expect. It is being brought against one of the court’s founding members: the United Kingdom.

On May 19, the ICC Prosecutor announced that her office would conduct a preliminary examination into claims of “systemic” abuse by British forces in Iraq for the period of 2003-2008.

The allegations are by no means insignificant. They consist of a “systemic” pattern of ill-treatment of detainees in Iraq involving arbitrary arrest, torture in custody and ultimately, willful killing. The allegations are directed against senior members of the military establishment, including former Defence Minister Geoff Hoon.

This move by the ICC Prosecutor is hugely significant and demonstrates that no person, irrespective of standing, should be considered immune from prosecution.

This does not constitute the opening of a formal investigation against the UK at this stage, although it is entirely possible that may follow in time. Further, the preliminary examination is limited to UK involvement and is not expected to look at crimes allegedly committed by US Forces or Iraqi security forces during the period of occupation.

Determining liability

In determining liability, the ICC inquiry is unlikely to consider the legality of the invasion and subsequent occupation or indeed the actions of any head of state, as the ICC lacks jurisdiction to investigate what may be considered an illegal war or the crime of aggression.

The matter now under consideration concerns allegations of unlawful killing and mistreatment of Iraqi nationals in British military custody. The case has been brought by the Birmingham based lawyer Phil Shiner of the Public Interest Lawyers and the Berlin-based European Centre for Constitutional and Human Rights.

The decision of the ICC Prosecutor comes after consideration of a 250-page report filed in this January. This is particularly significant considering the ICC Prosecutor in 2006, at that time the Argentinean jurist Luis Moreno-Ocampo, declined to open a preliminary examination on the basis that despite there being a reasonable basis to believe that war crimes had been committed, the allegations concerning 12 victims were not sufficiently grave in terms of the numbers.

The new filing is significant in that it concerns a much larger number of victims. The filing is detailed and focuses on a representative number of 85 cases from a larger group of more than 400 detainee cases.  

The decision by the ICC Prosecutor demonstrates that the case is now being taken seriously. The ICC Prosecutor receives hundreds of complaints each year. However, few reach the stage of preliminary examination, even if in this case the Prosecutor’s decision has not come as a great surprise to the international community.

What is surprising, however, is the response of the UK government in which it rejects unreservedly any allegation of systematic ill-treatment of detainees in Iraq. The Attorney General, Dominic Grieve, responded that the allegations were being “comprehensively investigated” in the domestic arena but also confirmed that the UK, as a firm supporter of the ICC, would cooperate fully with the inquiry to demonstrate that “British justice is following its proper course”.

The government’s response is essentially based upon two assumptions. Firstly, there is no need for the ICC to intervene, as there are sufficient procedures in place to deal with the matter through the domestic courts. Secondly, the complaints are baseless.

As regards the first assumption, it is a well-established fact that the ICC is a court of last resort operating under a principle of complementarity. This means that the ICC will not intervene if there are credible and genuine investigations proceeding on the national level. The legal framework of the ICC sets up a procedure for determining whether the national justice system is “unwilling or unable genuinely” to proceed with a case. This essentially means that only if the national courts have failed, then the ICC could step in.

It is accepted that there are investigations proceeding on a national level. There is an Iraq Historic Allegations Team set up to review and investigate allegations of abuse of Iraqi civilians by UK armed forces personnel in Iraq during the period of 2003 to July 2009. To that extent, the UK is complying in theory with its obligations under national and international law. However, the question must be asked as to whether such a process can be considered genuine taking into account the passage of more than 10 years.

It is also problematic given the comments already made in the press by members of the government, notably the Attorney General, flatly rejecting any allegations of systematic abuse. Such a rejection could play against the government in determining whether investigations are genuine. It is unacceptable for the government to dismiss the allegations but then state that any such allegations will be investigated appropriately at the national level.

‘Harming foreign relations’

The ICC will undoubtedly take note of cases where the UK courts have refused to consider claims, based on well-founded allegations, where the potential damage that they may attach to foreign relations or national security override individual rights. By way of example, the case of Abdel Hakim Belhaj, a Libyan national, whose civil claim was dismissed in the High Court despite the judge concluding that his allegations were well-founded as the judge accepted the government’s argument that to allow the claim to proceed would harm Britain’s relations with other countries or even its own “national security”.

Any investigation into systematic abuse of Iraqi detainees is likely to impact on the same foreign relations considerations of at least one friendly state and will certainly impact upon national security.

The question will inevitably be raised as to why the ICC probe will not examine the role of the United States. Put simply, the US is not a State Party to the Rome Statute of the ICC, whereas the UK is. Although the US supported referring the situation in Libya to the ICC and now supports the French initiative to refer the situation in Syria to the ICC, it does not support submitting itself to the scrutiny of the ICC. Arguably it is for this very reason that the US is still not willing to throw itself into the growing international club of nations in The Hague.

The UK government and its military are looking at the ICC Prosecutor’s decision as a threat rather than an opportunity. The Attorney General, Dominic Grieve, declared, “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”.

That is quite right. We must expect our armed forces to operate to the highest standards. But we must also expect our judiciary to operate to the same very high standards. The ICC will decide not to intervene if it is satisfied that investigations are genuine and credible. This review is perhaps a watershed for both the ICC and the UK. For the former, the watershed is in it becoming a truly independent, international criminal court; for the latter, in finally dealing with the legacy of Iraq.

Toby Cadman is an international criminal law specialist. He is a Barrister member at Nine Bedford Row International Chambers in London and a member of the International Criminal Bureau in The Hague.

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