Is the ICC heading for a fall?

Author:Davies, Desmond
Position:FEATURE: ICC - International Criminal Court

The recent announcement that the war crimes court will investigate alleged British atrocities in Afghanistan has brought a new dimension to the fight for international justice. Meanwhile the African Union is still finding ways of not cooperating with the court. All this does not augur well for the ICC, writes Desmond Davies.

When Fatou Bensouda, the Prosecutor at the International Criminal Court (ICC) in The Hague, addressed the London-based think-tank, Chatham House, in April, she was asked after her presentation how the ICC would react if, during its investigations in Iraq, nationals of major countries were involved in war crimes. "I will be guided by the evidence," she said, adding that all parties in the conflict in Iraq were being investigated.

In May, Bensouda officially announced that the ICC would re-open a preliminary examination into international crimes allegedly committed by British armed forces in Iraq. A preliminary examination is carried out to determine whether a full investigation is warranted.

The prosecutor's latest announcement came after a criminal complaint was lodged with the court in January by the European Centre for Constitutional and Human Rights (ECCHR) and Public Interest Lawyers (PIL) alleging systemic detainee abuse by UK forces in Iraq between 2003 and 2008.

Given that the alleged crimes were said to have been committed in Iraq--a country that has not joined the ICC or accepted its jurisdiction--the ICC would not have territorial jurisdiction. But because the alleged perpetrators of the alleged crimes were UK nationals, the ICC could have personal jurisdiction.

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 UK is not itself genuinely investigating or prosecuting those suspected of having committed the crimes in question--a concept known as complementarity that is at very heart of the Rome Statute that governs the ICC.

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 Office of the Prosecutor (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.

Bensouda's decision to investigate alleged UK crimes in Iraq has led to strong reactions from British politicians and military brass. Indeed, the matter has been compounded by the revelation that the ICC is paying a British lawyer to observe the trial in Libya of Saif Gathafi, the son of the late Colonel Muammar Gathafi. Politicians and senior military figures were rather enraged that...

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