UK Generals at the ICC? Not quite yet.

On the 13th May 2014, the Prosecutor of the International Criminal Court announced that the Court was re-opening its preliminary examination of the ‘Situation in Iraq’. This decision was taken following the submission of further information that alleges officials of the United Kingdom committed war crimes involving systematic detainee abuse in Iraq from 2003 – 2008.

Skeptics of international law and indeed the Rome Statute, the founding statute of the International Criminal Court, have long critiqued it for the so called ‘African bias’ highlighting that the two prosecutions so far reached by the Court have been against African leaders. So does the re-opening of the examination into British activity in Iraq suggest that the UK military leaders should fear being called to the Hague to stand trial, or is this merely a political manoeuvre to demonstrate feigned neutrality in pursuing the goals of international justice?

To outline the law, there are 122 state parties to the Rome Statute including the United Kingdom. All of who accept the jurisdiction of the Court that means ‘those deemed most responsible’ can be prosecuted for any of the crimes within the jurisdiction of the Court, including war crimes. We have all seen and heard of the shameful actions of our troops from Iraq, so surely, as criminal trials run, this would seem a clear cut case? Well, fellow Backbencher friends, welcome to international criminal law, where nothing, is ever quite as it seems….

In this whistle stop tour of the insanity that is the interplay of politics with law, you will see that whilst talk of an ‘African bias’ is perhaps wide of the mark, the ICC has so far failed to tackle the accusation that western countries, and indeed those who fund the Court, face near impunity.

It is essential to remember that the United Kingdom is not under investigation, nor will it ever be on trial, as the Court is responsible for trying individuals, not states. Indeed, as it stands no specific individual is under investigation, the Prosecutor is merely at the preliminary investigation stage. In order to move to the ‘investigation stage’ we look to the Rome Statute and the three qualifying criteria that will decide whether any UK official will eventually face trial:

a) The information available provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been committed

b) That the case is or would be admissible under Article 17

c) Taking into account the gravity of the crimes and the interests of the victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice

Whilst point c, appears wide ranging and ‘the perfect get out clause’ once, properly understood, it is the admissibility clause of Article 17 that will provide the best rescue option for UK officials.

Briefly explained, Article 17 outlines the theory of complementarity that the ‘Court shall determine that a case is inadmissible where:

The case is being investigated or prosecuted by a State that has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;

Therefore, there exists a second chance for those nations, who have committed such crimes to prosecute their own citizens. On the one hand, in many African states, this has been cited as a vital part of the rebuilding process, but here, it raises disturbing questions of in house justice. That the Prosecutor could find both the requirements outlined in a) and c) to be present, but be prevented from investigating owing to a continued UK investigation.

The fear of a sham investigation, amid the farcical string of existing Iraq enquiries is a very real one. But, we should focus on the term ‘unwilling or unable genuinely’, that if read in conjunction with the test used inThe Situation of the Democratic Republic of the Congo, requires any investigation to focus on both the conduct and person. The UK government will be well aware of the individuals and indeed incidents in question, a failure to investigate the concerns with the appropriate sincerity will, if the benchmark of precedent is to go by, be noticed and in theory result in the commencement of a full investigation. So far the UK’s answer has been the establishment of the Iraq Historical Allegation Team, set up in 2010. Whether this proves to reach the benchmark required however remains to be seen.

Whilst in 2006 three soldiers were tried according to the UK International Criminal Court Act, only one of them was convicted for inhumanely treating civilian detainees. His punishment was to be dismissed from the Army and jailed for one year, whilst his victim Mr Mousa died with 93 separate injuries to his body. With allegations emerging that Lord Goldsmith instructed army bosses ‘to ignore the Human Rights Act’ there will not just be soldiers sitting uncomfortably, but all those through the chain of command who from the outset have been involved with the commission of crimes during the war.

In short, we are a long, long way away from any British official, let alone Tony Blair standing trial in The Hague. Nevertheless, this does not change the fact that the war in Iraq was initiated amid lies and deceit to a nation and to this day continues to bring bloodshed and suffering to a region, we had no right to intervene in, nor ever truly understood. We should do well, to be skeptical of the International Criminal Court, but equally appreciate that opening an initial investigation still represents a bold move that will test the words of Dominic Grieve that he would fully cooperate with the ICC to illustrate that ‘British justice is following its proper course.’

Matt Brown can be found writing upon a quirky range of subjects ranging from sport to international criminal law. With the unusual career ambition to defend war criminals at The Hague, if you ever find you’re charged with genocide tweet him @_MattBrown

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