Despite confirmed evidence that British troops committed grave crimes including torture and murder in Iraq between 2003-09, the Office of the Prosecutor (OTP) of the International Criminal Court decided in December 2020 to close its preliminary examination after six years. Today, the European Center for Constitutional and Human Rights, with support of UpRights, filed a submission to the OTP that criticizes – and challenges – this decision. ECCHR claims that the OTP’s conclusion that the potential cases of war crimes are inadmissible for an investigation by the ICC is based on incorrect legal standards and factual analysis
“Legal and factual errors led to the incomprehensible decision to close the preliminary examination into potential war crimes by UK forces in Iraq,” states ECCHR’s general secretary Wolfgang Kaleck. “The Prosecutor failed to give sufficient weight to critical facts like the allegations that British authorities actively covered up evidence. The UK remains unwilling to adequately investigate the crimes – so the ICC must reopen investigations to prevent powerful actors, such as the UK, from getting away with grave crimes like torture.”
In addition to an inadequate analysis of the circumstances of the UK’s inadequate domestic investigations, the Prosecutor also adopted an incorrect interpretation of the Rome Statute. For example, the OTP disregarded human rights standards for effective investigations in its assessment. It also applied an excessively high standard of proof regarding the UK’s unwillingness to prosecute alleged war crimes, leading to an incorrect conclusion on its complementarity analysis. The ICC’s Rome Statute is designed to complement domestic procedures and to close any impunity gaps with regard to the most serious crimes of concern to the international community as a whole.
ECCHR filed the submission on behalf of Sabah Noori Salih al-Sadoon, an Iraqi torture survivor whose case was dismissed in the UK. “I expect the ICC Prosecutor to reconsider the decision as important issues have not been dealt with thoroughly, such as responsibility of military commanders,” says Al-Sadoon. “Commanders have known about the crimes, they were not committed in secret. However, UK authorities did not investigate their responsibility and protected them from prosecution.”
After closing the first preliminary examination in 2006, the OTP reopened it in 2014, after ECCHR and Public Interest Lawyers submitted evidence of widespread and systematic abuse of hundreds of detainees. Other ECCHR submissions in 2017 and 2019 underlined the unwillingness of the UK to investigate the crimes on national level. In June 2020, the UK confirmed the closure of domestic prosecution of war crimes committed by British soldiers in Iraq.