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The ICC Prosecutor’s Final Report on the Iraq/UK Investigation: Concerns Over Complementarity and the Court’s Future Legitimacy

/ Milena Sterio / Leave a comment

Earlier today, the International Criminal Court (ICC) Prosecutor released the Final Report regarding the status of the preliminary investigation into Iraq/United Kingdom (UK).  In this Report, the Prosecutor concluded that 

on the basis of the information available, there is a reasonable basis to believe that, at a minimum, the following war crimes have been committed by members of UK armed forces: wilful killing/murder under article 8(2)(a)(i)) or article 8(2)(c)(i)); torture and inhuman/cruel treatment under article 8(2)(a)(ii) or article 8(2)(c)(i)); outrages upon personal dignity under article 8(2)(b)(xxi) or article 8(2)(c)(ii)); rape and/or other forms of sexual violence under article 8(2)(b)(xxii) or article 8(2)(e)(vi)) (para. 69).  

Despite the above-mentioned finding, and despite the fact that over 3,000 cases of alleged abuse and atrocities by UK troops in Iraq had been referred to the UK national authorities, that many such cases had resulted in favorable settlements in UK civil courts, and that some such cases had been successfully litigated in the European Court of Human Rights (ECHR), the ICC Prosecutor decided to close this investigation. In this post, I will discuss the procedural history of the Iraq investigation, as well as analyze the Prosecutor’s findings in this Report.  In addition, I will discuss the potential impact of this decision on the future of the ICC.  

Procedural History

The Prosecutor initially opened a brief preliminary investigation into Iraq/ UK, but this investigation was closed in 2006. In January 2014, the European Center for Constitutional and Human Rights (ECCHR) together with Public Interest Lawyers (PIL) submitted an Article 15 communication to the Prosecutor, alleging the responsibility of UK armed forces and other UK officials for war crimes involving systematic detainee abuse in Iraq from 2003 until 2008. In light of this new information, the Prosecutor re-opened a preliminary investigation into this situation in May 2014.  In a 2017 Report, the Prosecutor announced that, following a thorough factual and legal assessment of the information available, it had reached the conclusion that there was a reasonable basis to believe that members of UK armed forces committed war crimes within the jurisdiction of the ICC against persons in their custody. This second Iraq/UK investigation was just closed today; the Prosecutor’s rationale for reaching this decision was published in the Final Report.

Prosecutor’s 2020 Final Report

In today’s Final Report, the Prosecutor concluded “that the only appropriate decision is to close the preliminary examination without seeking authorisation to initiate an investigation” (para. 1). The Prosecutor reached this decision on admissibility grounds under Article 17 of the Rome Statute.  The Prosecutor focused both on gravity and complementarity under Article 17; this post will focus on the Prosecutor’s analysis of complementarity, which occupied most of the Report (I note that the Prosecutor determined to perform an admissibility analysis in this case, despite the fact that admissibility determinations do not normally form part of Article 15 Pre-Trial Chamber determinations; according to the Prosecutor, “[a]lthough the Appeals Chamber has recently held that admissibility does not form part of the Pre-Trial Chamber’s determination under article 15(4), it nonetheless stressed the persisting duty of the Prosecutor, under rule 48, to be satisfied that all of the factors relevant to the opening an investigation, including admissibility, are met before proceeding with an article 15 application” (para. 156)).

The Prosecutor explained in the Final Report that the complementarity test under article 17 involves a two-step inquiry, “involving a determination of whether the national authorities are active in relation to the same case (first step), and only if so, whether this activity is vitiated by unwillingness or inability of the authorities concerned to carry out the proceeding genuinely (second step)” (para. 154). According to the Prosecutor, the UK authorities had both acted to investigate these alleged abuses and had shown a genuine willingness to investigate.  

First, the Prosecutor detailed in this Report how the UK authorities had shown action regarding the investigation of their troops’ alleged abuses in Iraq.  The Report explained that the UK authorities established the Iraq Historic Allegations Team (IHAT), whose original mandate was to investigate cases of alleged death or ill-treatment of Iraqis in British custody.  IHAT had an initial caseload of 165 cases, and it was supposed to conclude its work by November 2012. Over time, IHAT’s caseload expanded dramatically,  as new allegations of death or ill-treatment were received and its mandate was extended first to December 2016 and then to December 2019 (as the Report explained, IHAT was deemed necessary both to discharge the UK’s duty to investigate under British law, as well as under the European Convention on Human Rights; in addition, subsequent proceedings before the ECHR in Al Skeini and others v United Kingdom confirmed that the UK Government had a duty under the European Convention to carry out an adequate and effective investigation into allegations involving British service personnel in Iraq ).  The UK considered the IHAT investigations, and potential prosecutions, as necessary to satisfy the admissibility requirements of the Rome Statute.  In early 2017, following complaints over IHAT’s duration and expense, the UK Secretary of State for Defence announced that IHAT would be closed.  Remaining investigations were taken over by a new investigative unit, known as Service Police Legacy Investigations (SPLI).  IHAT and the SPLI referred a total of nine cases to the so-called Service Prosecuting Authority (SPA), the body which had become charged with determining whether a prosecution will take place.  In all nine cases, the SPA recommended that no charges be brought against the accused individuals.  In February 2020, UK authorities explained to the ICC Prosecutor that the SPA had most likely determined not to proceed with these prosecutions because the SPA applies a higher evidentiary threshold than IHAT/SPLI, and that it was likely that lawyers at the latter “might have considered cases were ready to proceed, whereas the SPA found they were not” (para. 200). In light of all of the steps taken by the UK authorities, and despite the fact that no cases resulted in actual prosecutions, the Prosecutor concluded in this Final Report that the UK authorities had acted for the purposes of the Article 17 complementarity analysis. 

Although the initial assessment of a claim might not lead to a fully-fledged investigation being undertaken (based on the screening criteria), or an investigation or prosecution might be abandoned after a subsequent assessment, the Office considers that it is difficult to argue that the State had remained inactive in relation to such a claim, since such assessments form part of the investigative and prosecutorial process (para. 276)

Second, the Prosecutor determined in the Final Report that the UK authorities had shown a genuine willingness to investigate alleged crimes committed by their forces in Iraq. As the Prosecutor explained, the determination of unwillingness requires, “having regard to the principles of due process recognized by international law”, that “[t]he proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5” (para. 294). The Prosecutor further emphasized that the concept of being “unwilling” genuinely to investigate is “concerned with a situation in which proceedings are conducted in a manner which would lead to a suspect evading justice as a result of a State not being willing genuinely to investigate or prosecute” (para. 284). The Prosecutor thus reviewed various UK authorities’ actions in this case through the lens of willingness. Serious concerns had been raised against UK authorities, alleging that they did not genuinely intend to pursue prosecutions against their own service members and higher-level officials.  As the Final Report described, despite the fact that over 3,000 potential cases had been referred to UK authorities, the latter failed to initiate a single prosecution.  In addition, former IHAT staff members had raised concerns that this mechanism lacked proper access to evidence and to witnesses, due to UK government interference.  Finally, concerns over undue delays in the proceedings had been flagged as a potential violation of the victims’ rights; such delays, according to some allegations, were the result of the UK authorities’ purposeful policy not to seriously investigate and/or prosecute cases.  Despite such serious concerns regarding the UK government’s “willingness” to genuinely prosecute, the Prosecutor concluded that “the information available does not demonstrate a lack of willingness to genuinely carry out the proceedings, pursuant to article 17(2)(b)” (para. 433).  In fact, the Final Report emphasized that it was not sufficient for the Prosecutor to have concerns over the genuineness of a national authority’s willingness to investigate and prosecute, but that instead it must be demonstrated that such authorities acted in bad faith. According to the Prosecutor,

The primary task of the Office is not to express its view on how it might have proceeded differently in the circumstances, nor to identify areas of disagreement with IHAT/SPLI and SPA’s decision-making and operational assessments of whether cases presented a realistic prospect of obtaining sufficient evidence at the investigative stage or a realistic prospect of conviction to support a prosecution. Nor is it the Office or the Court’s mandate to pronounce on whether a State complied with its duties to provide an effective remedy and fulfilled its procedural obligation to give effect to fundamental human rights enshrined in instruments such as the ECHR. The question is whether there is evidence to establish that the State concerned was unwilling to investigate or prosecute (para. 458).  

In sum, the Prosecutor concluded that the case of Iraq/UK was inadmissible under Article 17’s complementarity requirement, because the UK authorities had sufficiently demonstrated that they had acted to investigate and that they were genuinely willing to investigate.

Potential Impact of the Final Report on the ICC’s Legitimacy

It is possible, and relatively easy, to criticize some of the Prosecutor’s findings, particularly on “willingness” grounds.  It could be argued that the record established sufficient evidence that the UK authorities had reluctantly established IHAT and subsequent mechanisms; that they interfered with the mechanisms’ access to evidence; that they caused undue delays and demonstrated a significant bias against initiating any prosecutions – in sum, that they acted purposefully to shield their own service members and officials from any possibility of prosecution.   Yet, while such concerns are serious, the more fundamental issues raised by this decision to close the Iraq/UK investigation involve future cases and the ICC’s legitimacy.

In light of this decision, it may become relatively easy for other powerful states to evade the ICC’s reach by launching their own “genuine” investigations which result in zero prosecutions.  States such as the United States and Israel may welcome the court’s analysis of complementarity in this Final Report and its conclusion that the UK has been “willing” to prosecute its own soldiers and officials, despite a decade-long investigation which has yielded no cases. Complementarity may become a shield in and of itself, despite the fact that complementarity is actually supposed to ensure that perpetrators aren’t shielded from ICC’s prosecutorial reach. If states are able to avoid the ICC on complementarity grounds in the future, this could seriously undermine the court’s legitimacy. The ICC was established in order to ensure that accountability is imposed on perpetrators of atrocities; despite its relatively weak prosecutorial record, judicial squabbles on its bench, several state withdrawals from its jurisdiction, and some powerful states’ open hostility, the Court could be objectively defended in light of the importance of its fundamental mission.  The imposition of accountability on those who commit genocide, crimes against humanity, or war crimes is objectively one of the most important goals of international criminal justice; an imperfect institution which nonetheless contributes to this goal remains important and legitimate.  If the ICC were to become an easily-avoided forum, which states can bypass by launching sham but “genuinely willing” investigations, then the Court’s fundamental purpose comes into question.  In such circumstances, it becomes difficult to continue to defend the ICC.  For those of us who believe in the pursuit of international justice and in its institutions, including the ICC, the possibility of this type of a complementarity-based challenge to the court’s legitimacy is troubling.

ICJ Advisory Opinion in the Chagos Archipelago Case: Self-Determination Re-Examined?

/ Milena Sterio / 1 Comment

On February 25, 2019, the International Court of Justice (ICJ) delivered an advisory opinion on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965.  The advisory opinion had been requested of the court through a General Assembly resolution in 2017, on the following legal question:

“(a) Was the process of decolonization of Mauritius lawfully completed when Mauritius was granted independence in 1968, following the separation of the Chagos Archipelago from Mauritius and having regard to international law, including obligations reflected in General Assembly resolutions 1514 (XV) of 14 December 1960, 2066 (XX) of 16 December 1965, 2232 (XXI) of 20 December 1966 and 2357 (XXII) of 19 December 1967?;
(b) What are the consequences under international law, including obligations reflected in the above-mentioned resolutions, arising from the continued administration by the United Kingdom of Great Britain and Northern Ireland of the Chagos Archipelago, including with respect to the inability of Mauritius to implement a programme for the resettlement on the Chagos Archipelago of its nationals, in particular those of Chagossian origin?”

ICJ answered the first question in the negative, and concluded that the decolonization process of Mauritius had not been lawfully completed at the time of Mauritian independence.  And the court held, on the second question, that the United Kingdom was under an obligation to bring to end its administration of the islands as rapidly as possible.  This post will provide a brief factual background regarding the Chagos Archipelago, as well as a succinct legal analysis of the world court’s reasoning and ultimate conclusions.

Where is the Chagos Archipelago and what was its relationship to the United Kingdom and Mauritius prior to Mauritian independence in 1968? Between 1814 and 1965, the Chagos Archipelago was administered by the United Kingdom as a dependency of the colony of Mauritius.  In 1964, during a time when the  United Kingdom was contemplating decolonizing Mauritius, the United States expressed an interest (to the United Kingdom) in establishing a military base on one of Chagossian islands, Diego Garcia.  In 1965, the United Kingdom concluded the co-called Lancaster Agreement with the representatives of the colony of Mauritius.  Through the Lancaster Agreement, the U.K. and Mauritius “agreed in principle to the detachment of the Chagos Archipelago from the territory of Mauritius. This agreement in principle was given on condition that the archipelago could not be ceded to any third party and would be returned to Mauritius at a later date, a condition which was accepted at the time by the United Kingdom.” (para. 171).  After this Agreement, the United Kingdom detached the Chagos Archipelago from Mauritius.  In 1965, the United Kingdom also concluded an agreement with the United States, allowing the latter to build a military base on Diego Garcia.  By 1971, all of the inhabitants of Diego Garcia were forced to relocate from the island by the United Kingdom authorities and the United States proceeded to build a military base on the island.  Mauritius (without Chagos Islands) obtained independence from the United Kingdom in 1968; according to a former Mauritian Prime Minister, Mauritius had no choice but to agree to the detachment of the Chagos Archipelago prior to independence.  As of today, the United States still operates a military base in Diego Garcia (the U.S. – U.K. agreement of 1965, allowing the U.S. to operate a military base in Diego Garcia, has been extended).  The Chagossians have been dispersed, since the early 1970s, in Mauritius, the Seychelles, and the United Kingdom.  By virtue of U.K. law, they have not been allowed to return to the Chagos Archipelago.

How did the ICJ reason in this advisory opinion, and how did it reach its ultimate conclusions? First, the ICJ held that it had jurisdiction over the dispute because the request from the General Assembly for this advisory opinion constituted a “legal question” pursuant to article 65 of the court’s statute (para. 58).  Second, the ICJ held that, in its discretion, it should not decline to exercise jurisdiction over this case.  The court reasoned that it had enough factual information to answer the legal questions asked (paras. 69-74), that it was not for the court to decline jurisdiction based on the argument that the court’s opinion would not assist the General Assembly, as this is for the General Assembly itself to decide (paras.  75-78), and that it was not precluded through the principles of res judicata from rendering this advisory opinion (because the U.K. and Mauritius had arbitrated a slightly different dispute before an arbitral tribunal, and because the U.K. and Mauritius are not the same parties in the present request for an advisory opinion) (paras.  79-80).  Moreover, the ICJ rejected the argument that it should decline jurisdiction because the request for an advisory opinion would force the court to settle a territorial dispute between two states, the U.K. and Mauritius, which had not both consented to the court’s jurisdiction over this dispute (paras. 83-91).  Instead, the ICJ held that “the purpose of the request is for the General Assembly to receive the Court’s assistance so that it may be guided in the discharge of its functions relating to the decolonization of Mauritius.” (para.  86).

After answering the jurisdictional challenges, the ICJ turned to the merits.  The court examined the right to self-determination under customary law, and whether this right existed under customary law in the late 1960s, at the time that the U.K. decolonized Mauritius.  According to the ICJ, General Assembly Resolution 1514 of 1960 “represents a defining moment in the consolidation of State practice on decolonization” (para. 150) and “[t]he wording used in resolution 1514 (XV) has a normative character, in so far as it affirms that ‘[a]ll peoples have the right to self-determination.'” (para. 153).  Moreover, according to the court, “[b]oth State practice and opinio juris at the relevant time confirm the customary law character of the right to territorial integrity of a non-self-governing territory as a corollary of the right to self-determination.” (para. 160).  Thus, the ICJ concluded that the right of self-determination was a part of customary law in 1968, at the time of Mauritian independence.  Next, the court concluded that the people of Mauritius, through the Lancaster Agreement of 1965, did not freely consent to the detachment of the Chagos Archipelago (para. 172), and that the decolonization of Mauritius was thus not lawfully completed, as it did not respect the relevant principles of self-determination.  In light of this conclusion, the court found that “the United Kingdom’s continued administration of the Chagos Archipelago constitutes a wrongful act entailing the international responsibility of that State” (para. 177) and that “the United Kingdom is under an obligation to bring an end to its administration of the Chagos Archipelago as rapidly as possible, thereby enabling Mauritius to complete the decolonization of its territory in a manner consistent with the right of peoples to self-determination” (para. 178).  Moreover, the ICJ concluded that because “respect for the right to self-determination is an obligation erga omnes, all States have a legal interest in protecting that right” and “while it is for the General Assembly to pronounce on the modalities required to ensure the completion of the decolonization of Mauritius, all Member States must co-operate with the United Nations to put those modalities into effect” (para. 180).

Why did the court (likely) decide the way it did, and what does this all mean? First, it is important to note that the court’s decision was virtually unanimous: the judges unanimously determined that the court had jurisdiction; by twelve votes to two, the judges decided to comply with the request to render the advisory opinion (Judges Tomka and Donoghue against); by thirteen votes to one, the judges reached their substantive conclusions (Judge Donoghue against).  Second, as Marko Milanovic has argued, the outcome of this case may demonstrate how important the framing of the legal question is (“by avoiding the use of the term ‘sovereignty’, Mauritius and the GA defused the likelihood of the Court dismissing the case as involving a bilateral dispute”).  This may explain, in part, why the ICJ judges ultimately reached the conclusions above – that the narrow and clever wording of the advisory opinion request allowed the ICJ to reach particular legal conclusions without having to address issues of U.K. and/or Mauritian sovereignty.  Third, I agree with Marko Milanovic that the ICJ’s discussion of the most fundamental and difficult issue – whether the right of self-determination was part of customary law in 1968, at the time of Mauritian decolonization – was too brief, too rushed, and insufficiently developed in terms of legal analysis.  Fourth, the ICJ did not explain how the people of Mauritius could have freely exercised their right to self-determination (when they consented to the separation of the Chagos Archipelago): was the U.K. at an obligation to conduct a popular referendum in Mauritius on this issue, or were there other modalities of self-determination available in 1968? Fifth, it is clear that this outcome is a big loss for the U.K., as the ICJ most clearly stated that the Mauritian decolonization was not lawfully completed and that the U.K. was under an obligation to end its administration of the Chagos Archipelago immediately. Sixth, it may be argued that the outcome of this case is a loss for other countries, such as the U.S., as the ICJ concluded that all states were under an obligation to co-operate with the United Nations to ensure the completion of the decolonization of Mauritius (does this mean that the U.S. is now under an obligation to dismantle its military base on Diego Garcia?) Seventh, it may also be argued that the ICJ missed another opportunity to pronounce itself on the contours of the right of self-determination, like in the Kosovo Advisory Opinion.  The legal question in this advisory opinion concerned the right to self-determination directly; instead of quickly concluding that the right was part of customary law in 1968, the court could have included a more detailed legal analysis of the content and modalities of the right of self-determination under customary law.

It remains to be seen how the U.K. (or the U.S.) will react to this advisory opinion, whether the U.S. will be willing to negotiate the relocation of its military base in Diego Garcia, and whether the people of the Chagos Arhipelago may be allowed to return to their home land.

 

Call for Papers-International Criminal Justice: Theory, Policy and Practice April 2014

/ Osazenoriuwa Ebose / Leave a comment

Socio-Legal Studies Association Annual Conference (Newcastle University) 5-7 April 2017

http://www.slsa2017.com

The international criminal justice stream a the SLSA Annual Conference contains four panel sessions and invites submission on all areas of substantive international criminal justice, whether on theory, policy or practice. Empirical work would be particularly welcomed and papers based on “works in progress” will be considered so long as the work is sufficiently developed. Both individual papers and panel submission (of three related papers) can be submitted for consideration. Postgraduate students are also encourage to submit abstracts.

Selected papers from the conference will be published in a forthcoming edition of The Hague Justice Journal.

 

For an informal discussion please email the convenor, Anna Marie Brennan at Anna.Marie.Brennan@liverpool.ac.uk

 

Abstracts must be no longer than 300 words and must include your title, name and institutional affiliation and your email address for correspondence.