ICC Prosecutor Reopens Examination of Detainee Abuse in Iraq

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The Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, today reopened the preliminary examination of the situation in Iraq following the submission of a 250-page dossier of new information in January by the European Centre for Constitutional and Human Rights and Public Interest Lawyers. Philip Shiner, human rights solicitor at Public Interest Lawyers, claims that the dossier reveals evidence of more than 400 cases of mistreatment or killings by members of the UK armed forces in Iraq. Former Defence Secretary Geoff Hoon and former Armed Forces Minister Adam Ingram are named in the file.

According to the OTP’s Policy Paper, the purpose of a preliminary examination is to

“collect all relevant information necessary to reach a fully informed determination of whether there is a reasonable basis to proceed with an investigation.”

Under Article 53(1) of the Rome Statute, the Prosecutor will examine issues of jurisdiction (temporal, material, and either territorial or personal jurisdiction); admissibility (complementarity and gravity); and the interests of justice in order to determine whether there is a reasonable basis to proceed.

Andrew Cayley QC, director of the Service Prosecuting Authority (SPA), has indicated that the ICC may run into issues of admissibility. The ICC’s regime is complementary to that of domestic systems; it may only intervene where a State is unable or unwilling genuinely to carry out investigation or prosecution. The Iraq Historic Allegations Team was set up in 2010 “to review and investigate allegations of abuse of Iraqi civilians by UK armed forces personnel in Iraq during the period of 2003 to July 2009.” Where investigations conclude that there is sufficiently credible evidence, cases can be referred to the SPA for prosecution.

In 2006, former Prosecutor Luis Moreno-Ocampo determined that there was insufficient information on which to proceed to open an investigation into allegations of wrongdoing by military authorities in Iraq.

Attorney General Dominic Grieve responding on behalf of the British Government “completely rejected” allegations of detainee abuse in Iraq by British armed forces claiming that the vast majority of its members comply with domestic and international law. He pledged to provide the ICC with

“whatever is necessary to demonstrate that British justice is following its proper course.”