International Justice

CJ354 Endicott College

ICC asked to prosecute British war crimes in Iraq

The mother and son of Baha Mousa (R in the picture), an Iraqi hotel receptionist who was kicked and beaten to death whilst in British Army custody, hold pictures of him at their house in BasraLegal and human rights groups representing over 400 Iraqis have filed a complaint with the International Criminal Court. The complaint alleges that British forces should be investigated and prosecuted for committing war crimes in Iraq and that military officials at the ‘highest levels’ are responsible. The alleged crimes include torture, sexual assault, mock executions, etc. British Foreign Secretary, William Hague, dismissed the claims stating that such abuses have been and continue to be investigated by British authorities.

This is a challenge for the ICC in several respects. First, the ICC does have jurisdiction here because the UK is a signatory to the Rome Statute for the ICC. But, under the Statute’s rules, the UK gets the first crack at it and the ICC can only step in if those investigations do not happen or fail to be impartial.

Second, are the alleged crimes of sufficient gravity to warrant the Court’s attention? The ICC’s judges and prosecutors are informally tasked with taking on only the most serious cases of war crimes, crimes against humanity and genocide. Are these abuses more grave than, say, in Afghanistan? Syria? Sri Lanka? More on this in our classes on the ICC.

Lastly, is the ICC bowing to power politics if it opts not to investigate and prosecute these cases? The Court is often accused of being too selective, and pursuing cases that are only politically feasible or curry favor with its supporters. Is it worth pursuing this case at the risk of frostier relations with one of the Court’s most important supporters? You can read a great analytical summary of this issue at Justice in Conflict.

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2 responses to “ICC asked to prosecute British war crimes in Iraq

  1. Pingback: Response to post: ICC asked to prosecute British war crimes in Iraq | The Politics of International Justice

  2. jhgmitch January 15, 2014 at 9:20 pm

    The instructor brought up two interesting questions in her post about the potential prosecution of British war crimes in Iraq. One was whether the alleged crimes “warrant the Court’s attention.” What is the scale and how serious are the crimes? The case hinges upon the factual answer to this question. (International law does not impinge on national sovereignty over small potatoes.) It is therefore unsurprising that the UK and the advocacy groups behind the complaint are primarily in disagreement about the number of crimes that took place. By the way, the argument “this is not a Bosnia” might be less persuasive than it used to be. Sikkink’s “cascade” metaphor suggests that standards for scope/seriousness are becoming less strict as the norm of individual criminal accountability replaces the norm of impunity.

    The other question was about “power politics” and the ICC. In his blog, Mark Kersten of the London School of Economics discussed the perception that the ICC is unfairly lenient towards western countries. This perception has a realist logic: Since the ICC would need the cooperation of western countries in order to prosecute their officials, it might be incentivized to overlook improprieties, especially if it meant avoiding a public standoff that it wouldn’t win. Fortunately for the ICC, they can’t be accused of favoritism towards the Americans. Despite Obama’s warmer relationship with the ICC, the US still has no intention of being a party to the Rome Statute.

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