Accountability for British War Crimes in Iraq? Examining the Nexus Between International and National Justice Responses
Morten Bergsmo and Carsten Stahn (editors), Quality Control in Preliminary Examination: Volume 1, Torkel Opsahl Academic EPublisher, Brussels, 2018
55 Pages Posted: 7 Dec 2018
Date Written: October 22, 2018
In May 2014, Chief Prosecutor of the International Criminal Court (‘ICC’) Fatou Bensouda announced that her Office had decided to re-open a pre-liminary examination into alleged war crimes committed by British soldiers in Iraq in the period 2003-08. Bensouda’s decision followed in the wake of a “devastating dossier” of evidence being provided to her Office by public international law and human rights groups. The Office of the Prosecutor’s (‘OTP’ or ‘Office’) decision put the United Kingdom (‘UK’) – an ICC State Party and long-standing supporter of the Court – under scrutiny for the second time. A previous examination had been terminated by former Chief Prosecutor Luis Moreno-Ocampo on the grounds that the allegations of UK abuses in Iraq were not sufficiently grave. The Iraq/UK preliminary examination is of interest for several reasons. First, it presents the first time that a major power and State Party has been put under ICC scrutiny, raising novel questions concerning ICC-State relations. Second, the alleged crimes involve war crimes, such as abuse of detainees committed in a major international armed conflict, as opposed to the type of civil war and/or election violence situations which have been the focus of most ICC activity to date. Third, the existence of a variety of judicial processes in the UK which address crimes allegedly committed in Iraq raises important questions relating to the ICC’s existing complementarity regime. Based on interviews with British authorities, ICC officials, the lawyers who made submissions to the ICC (the Article 15 communication providers), and other human rights lawyers and academics, this chapter examines the dynamics, consequences and impact of the Iraq/UK preliminary examination. Overall, the chapter aims to clarify how this preliminary examination has been approached and whether it has impacted justice processes in the domestic sphere – and the rule of law more broadly – and if so, how and why. In this way, the chapter provides a critical empirical examination of the assumptions made in the scholarship and by ICC prosecutors about ‘positive complementarity’ as well as an early case study of how a great power responds to and interacts with the Court when subject to a preliminary examination. In particular, the chapter offers a detailed analysis of the interactions between the ICC’s preliminary examination into alleged UK abuses in Iraq and the response by the British government, including judicial measures put in place domestically to address the alleged crimes and broader policy responses. The chapter further identifies and elaborates the strategies adopted by the OTP, British authorities and other relevant stakeholders such as the civil society groups and lawyers submitting material to the OTP. In this way, the chapter contributes to our understanding of how the ICC approaches preliminary examinations in ‘hard cases’ involving major powers (in this case involving a permanent member of the UN Security Council), and how such powers respond and engages the Court when put under scrutiny. Notwithstanding some debate among academics concerning the Iraq/UK preliminary examination, this chapter – together with Rachel Kerr’s contribution to this volume – present the first detailed academic analyses of how the Iraq/UK preliminary examination has unfolded to date, the responses to it by British authorities and its broader ramifications. While focusing on the interaction between the ICC’s preliminary examination and domestic accountability efforts, the chapter demonstrates how the examination is just one part of a number of critical developments that have engendered an interest in investigating alleged crimes perpetrated by UK forces in Iraq. The chapter sheds light on a complex network of factors that have driven British authorities to investigate these crimes, including the creation of the Iraq Historic Allegations Team (‘IHAT’), a unit established to examine the veracity of the alleged crimes with an eye on criminal prosecutions. In so doing, the chapter illustrates complex interactions between the UK and the ICC concerning how the preliminary examination should proceed with a shared object in mind: avoiding a direct confrontation between the Court and the UK. At the same time, there are conflicting interests and understandings concerning what the accountability processes for alleged crimes in Iraq should look like and how they should proceed. This raises profound questions relating to quality control in preliminary examinations, including whether avoiding a confrontation may come at the price of not opening a formal investigation due to long-lasting but not necessarily effective investigate steps domestically. The chapter proceeds as follows: First, it outlines the assumptions made about the connections between preliminary examinations and positive complementarity, including relevant OTP standards and policy objectives (Section 13.2.). Next, it provides an overview of the Iraq/UK preliminary examination as well as the crimes under examination (Section 13.3.). It then proceeds to an analysis of the OTP’s strategies, expectations to domestic proceedings and the Office’s engagement with other stakeholders in this accountability process (Section 13.4.) Following that analysis, the chapter examines how UK authorities have responded to the preliminary examination, including an analysis of how the ICC’s preliminary examination and the dynamics surrounding it have impacted legal processes in the UK (Section 13.5.). The chapter concludes by discussing the broader ramifications of the Iraq/UK preliminary examination.
Keywords: international criminal justice, complementarity, preliminary examinations, Iraq, United Kingdom
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