International Justice

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Recent Push for ICC to Prosecute UK officials for crimes in Iraq


This past week, the Germany-based European Centre for Constitutional Human Rights and the England-based Public Interest Lawyers firm submitted a 250-page document to the ICC, entitled “The Responsibility of UK Officials for War Crimes Involving Systematic Detainee Abuse in Iraq from 2003-2008”. The document contains testimonies from over 400 Iraqis and accuses British soldiers of war crimes ranging from torture such as electric shocks and burning, to cultural humiliation and simulated executions. The Centre for Constitutional Human Rights places the blame on the highest officials of both the UK Military and Civil Government, claiming that they were aware of the abuses committed by the soldiers but failed to act. In particular, the complaint mentions the former minister of defense Geoff Hoon and Secretary of State Adam Ingram.

The UK government’s response was that a small number of cases had indeed taken place, but they were addressed on an individual basis. It rejected claims of “systematic torture”.

A similar complaint was filed with the ICC in 2006, but failed in part because the ICC believed that the number of cases at the time was too small to warrant a charge of “war crimes”.

This complaint is rekindling debate over whether or not the ICC prosecutes selectively. In 2013, the ICC was accused by the African Union of “race-hunting” after it indicted the Kenyan president and Vice President for orchestrating violence during the 2007 elections. The African Union highlighted the fact that the vast majority of ICC indictments have been for African leaders. While the focus of the accusation was race, it also brought up issues regarding the size and power of the countries indicted by the ICC. All ICC indictments and cases have been leveled against either those no longer in power, or heads of states that are not considered particularly powerful. There have been no successful indictments against any states that sit on the Security Council.

It will be interesting to see how this complaint plays out and whether or not it will gain any interational traction, but my guess is that it will generate a bit of buzz and then quickly fade out. While there has been continual public outcry against things like US treatment of prisoners in Guantanamo Bay, the abuses of powerful countries is unlikely to face any international legal retribution. This is not limited only to Western Countries—countries like China or Russia are also unlikely to face international prosecution for any potential crimes against humanity.



One response to “Recent Push for ICC to Prosecute UK officials for crimes in Iraq

  1. agautam1 January 19, 2014 at 10:21 pm

    I’m interested to see how this issue plays out with the British government in two ways. The first is that, as mentioned in the original article + post, the British government is not disputing that such incidences occurred. Instead, they dispute both the frequency (claiming it was relatively isolated), the nature of the crimes (that they were not systematic) and the consequences (that the government has dealt with these issues on an individual basis).

    The challenge for the ICC would be in proving that the UK government was either ‘unwilling’ or ‘unable’ to prosecute such perpetrators, since this is generally the burden at which the ICC can and will step in. This is first codified in Article 17: Issues of admissibility, section 1b) which states that the Court shall determine a case inadmissible where “The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute”

    It is true that the British have prosecuted some instances of this, such as here Yet it also seems true that the government is unwiling to accept or investigate any allegations of the systemic abuse that the original German report appears to be accusing them of. So where, then, is the burden of proof for the ICC? No one would accuse the British government of being unable, from a legalistic standpoint, to be able to prosecute such crimes. At the same time, they have taken some steps to address the abuses, just not enough (or at least, not as severe as the crimes themselves would suggest).

    It does not seem to me that there is much that the ICC is able to do. As mentioned in the initial post no indictment has been brought against a nation on the UNSC, much less a P5 nation. Ultimately for such nations likely the best the ICC can do is to encourage such nations to actively follow up such allegations, which is international speak for ‘do nothing’.

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