The International Criminal Court and the 2003 invasion of Iraq
Encyclopedia
The Prosecutor of the International Criminal Court
reported in February 2006 that he had received 240 communications in connection with the invasion of Iraq in March 2003
which alleged that various war crimes had been committed. The overwhelming majority of these communications came from individuals and groups within the United States and Britain. Many of these complaints concerned the British participation in the invasion, as well as the alleged responsibility for torture
deaths while in detention in British-controlled areas.
On February 9, 2006, the Prosecutor, Luis Moreno-Ocampo, published a letter that he had sent to all those who had communicated with him concerning the above, which set out his conclusions on these matters, following a preliminary investigation of the complaints. He explained that two sets of complaints were involved:
Complaints concerning the legality of the invasion itself; and
Complaints concerning the conduct of hostilities between March
and May 2003, which included allegations in respect of (a) the targeting of civilians or clearly excessive attacks; and (b) willful killing or inhumane treatment of civilians.
The UK, Australia
, and Poland
are all state parties to the Rome Statute
which established the International Criminal Court
(ICC) and therefore their nationals are liable to prosecution by the court for the violation of any relevant international criminal law
s. Because the United States
is not a state party, Americans cannot be prosecuted by the court (except for crimes that take place in the territory of a state that has accepted the court's jurisdiction, or situations that are referred to the court by the United Nations Security Council
, where the US has a veto
).
Moreno-Ocampo also considered in this context whether there were incidents where even though civilians were not intentionally targeted, the attack was nonetheless clearly excessive to military necessity
bearing in mind (a) the anticipated civilian damage or injury; (b) the anticipated military advantage; and (c) whether (a) was “clearly excessive” in relation to (b). He concluded that while many facts remain to be determined the available evidence "did not allow for the conclusion that there was a reasonable basis to believe that a clearly excessive attack within the jurisdiction of the Court had been committed."
"After exhausting all measures appropriate during the analysis phase, the Office determined that, while many facts remained undetermined, the available information did not provide a reasonable basis to believe that a crime within the jurisdiction of the Court had been committed."
Moreno-Ocampo went on to explain that this on its own is not sufficient for the initiation of an investigation by the International Criminal Court since the Statute requires consideration of admissibility before the Court, in light of the gravity of the crimes. In examining this criterion he explained:
Moreno-Ocampo qualified this statement by noting that "this conclusion can be reconsidered in the light of new facts or evidence."
(which follows similar laws) many defendants were accused of involvement in "joint criminal enterprises".
In footnote 10 of his letter the Prosecutor said "the available information provided a reasonable basis with respect to a limited number of incidents of war crimes by nationals of States Parties, but not with respect to any particular incidents of indirect participation in war crimes".
This means he did not find a reasonable basis to proceed against nationals of state parties on the basis of complicity in war crimes carried out by non state parties. It is not, as such, a finding that war crimes were not carried out by non state parties. The prosecutor did not express a conclusion on that matter since that was not within his competence.
The statement by the prosecutor did not appear to address any accusations of war crimes or complicity by citizens of State Parties during the subsequent occupation and rule by the Coalition Provisional Authority
, or after the official handover of Iraqi sovereignty
. For example, no mention was made of any involvement by citizens of State Parties (e.g. the Scottish
Black Watch
regiment) in the US attack on Fallujah
in 2003, which resulted in accusations of war crimes — though mainly by US and Iraqi government troops and Iraqi insurgents
(who are not under ICC jurisdiction), rather than British forces.
International Criminal Court
The International Criminal Court is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression .It came into being on 1 July 2002—the date its founding treaty, the Rome Statute of the...
reported in February 2006 that he had received 240 communications in connection with the invasion of Iraq in March 2003
2003 invasion of Iraq
The 2003 invasion of Iraq , was the start of the conflict known as the Iraq War, or Operation Iraqi Freedom, in which a combined force of troops from the United States, the United Kingdom, Australia and Poland invaded Iraq and toppled the regime of Saddam Hussein in 21 days of major combat operations...
which alleged that various war crimes had been committed. The overwhelming majority of these communications came from individuals and groups within the United States and Britain. Many of these complaints concerned the British participation in the invasion, as well as the alleged responsibility for torture
Torture
Torture is the act of inflicting severe pain as a means of punishment, revenge, forcing information or a confession, or simply as an act of cruelty. Throughout history, torture has often been used as a method of political re-education, interrogation, punishment, and coercion...
deaths while in detention in British-controlled areas.
On February 9, 2006, the Prosecutor, Luis Moreno-Ocampo, published a letter that he had sent to all those who had communicated with him concerning the above, which set out his conclusions on these matters, following a preliminary investigation of the complaints. He explained that two sets of complaints were involved:
Complaints concerning the legality of the invasion itself; and
Complaints concerning the conduct of hostilities between March
March 2003
March 2003: January – February – March – April – May – June – July – August – September – October – November – December – →-Events:-March 1, 2003:...
and May 2003, which included allegations in respect of (a) the targeting of civilians or clearly excessive attacks; and (b) willful killing or inhumane treatment of civilians.
The UK, Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
, and Poland
Poland
Poland , officially the Republic of Poland , is a country in Central Europe bordered by Germany to the west; the Czech Republic and Slovakia to the south; Ukraine, Belarus and Lithuania to the east; and the Baltic Sea and Kaliningrad Oblast, a Russian exclave, to the north...
are all state parties to the Rome Statute
Rome Statute of the International Criminal Court
The Rome Statute of the International Criminal Court is the treaty that established the International Criminal Court . It was adopted at a diplomatic conference in Rome on 17 July 1998 and it entered into force on 1 July 2002. As of 13 October 2011, 119 states are party to the statute...
which established the International Criminal Court
International Criminal Court
The International Criminal Court is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression .It came into being on 1 July 2002—the date its founding treaty, the Rome Statute of the...
(ICC) and therefore their nationals are liable to prosecution by the court for the violation of any relevant international criminal law
International criminal law
International criminal law is a body of international law designed to prohibit certain categories of conduct commonly viewed as serious atrocities and to make perpetrators of such conduct criminally accountable for their perpetration. Principally, it deals with genocide, war crimes, crimes against...
s. Because the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
is not a state party, Americans cannot be prosecuted by the court (except for crimes that take place in the territory of a state that has accepted the court's jurisdiction, or situations that are referred to the court by the United Nations Security Council
United Nations Security Council
The United Nations Security Council is one of the principal organs of the United Nations and is charged with the maintenance of international peace and security. Its powers, outlined in the United Nations Charter, include the establishment of peacekeeping operations, the establishment of...
, where the US has a veto
Veto
A veto, Latin for "I forbid", is the power of an officer of the state to unilaterally stop an official action, especially enactment of a piece of legislation...
).
Allegations concerning the legality of the conflict
The prosecutor explained that although the Statute of the International Criminal Court "includes the crime of aggression, it indicates that the Court may not exercise jurisdiction over the crime until a provision has been adopted which defines the crime and sets out the conditions under which the Court may exercise jurisdiction with respect to it (Article 5(2))." Hence, "the International Criminal Court has a mandate to examine the conduct during the conflict, but not whether the decision to engage in armed conflict was legal. As the Prosecutor of the International Criminal Court, I do not have the mandate to address the arguments on the legality of the use of force or the crime of aggression". The states parties to the ICC may adopt such a definition at a review conference in 2009, but the court will only be able to exercise jurisdiction over acts of aggression committed after this amendment enters into force.Targeting of civilians or clearly excessive attacks
In regards to the targeting of civilians or a possible excess of violence, Moreno-Ocampo concluded that although "The available information established that a considerable number of civilians died or were injured during the military operations." (Footnote 12 gives a range of 3,750 (+/- 15%) to more than 6,900) It did not indicate intentional attacks on civilians. "The available information did not indicate intentional attacks on a civilian population."Moreno-Ocampo also considered in this context whether there were incidents where even though civilians were not intentionally targeted, the attack was nonetheless clearly excessive to military necessity
Military necessity
Military necessity, along with distinction, and proportionality, are three important principles of international humanitarian law governing the legal use of force in an armed conflict.-Attacks:...
bearing in mind (a) the anticipated civilian damage or injury; (b) the anticipated military advantage; and (c) whether (a) was “clearly excessive” in relation to (b). He concluded that while many facts remain to be determined the available evidence "did not allow for the conclusion that there was a reasonable basis to believe that a clearly excessive attack within the jurisdiction of the Court had been committed."
"After exhausting all measures appropriate during the analysis phase, the Office determined that, while many facts remained undetermined, the available information did not provide a reasonable basis to believe that a crime within the jurisdiction of the Court had been committed."
Willful killing or inhuman treatment of civilians
As far as the allegations of willful killing or inhuman treatment of civilians are concerned, Moreno-Ocampo concluded that there was a reasonable basis to believe that crimes within the jurisdiction of the Court had been committed, namely willful killing and inhuman treatment. He explained that the information available did support a reasonable basis for an estimated four to 12 victims of willful killing and a limited number of victims of inhuman treatment, totaling in all less than 20 persons. He also reported that in all of these cases the national authorities had initiated proceedings.Moreno-Ocampo went on to explain that this on its own is not sufficient for the initiation of an investigation by the International Criminal Court since the Statute requires consideration of admissibility before the Court, in light of the gravity of the crimes. In examining this criterion he explained:
- "For war crimes, a specific gravity threshold is set down in Article 8(1), which states that “the Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes”. This threshold is not an element of the crime, and the words “in particular” suggest that this is not a strict requirement. It does, however, provide Statute guidance that the Court is intended to focus on situations meeting these requirements. According to the available information, it did not appear that any of the criteria of Article 8(1) were satisfied. Even if one were to assume that Article 8(1) had been satisfied, it would then be necessary to consider the general gravity requirement under Article 53(1)(b). The Office considers various factors in assessing gravity. A key consideration is the number of victims of particularly serious crimes, such as wilful killing or rape. The number of potential victims of crimes within the jurisdiction of the Court in this situation – 4 to 12 victims of willful killing and a limited number of victims of inhuman treatment – was of a different order than the number of victims found in other situations under investigation or analysis by the Office. It is worth bearing in mind that the OTP is currently investigating three situations involving long-running conflicts in Northern Uganda, the Democratic Republic of Congo and Darfur. Each of the three situations under investigation involves thousands of wilful killings as well as intentional and large-scale sexual violence and abductions. Collectively, they have resulted in the displacement of more than 5 million people. Other situations under analysis also feature hundreds or thousands of such crimes. Taking into account all the considerations, the situation did not appear to meet the required threshold of the Statute. In light of the conclusion reached on gravity, it was unnecessary to reach a conclusion on complementarity. It may be observed, however, that the Office also collected information on national proceedings, including commentaries from various sources, and that national proceedings had been initiated with respect to each of the relevant incidents."
Moreno-Ocampo qualified this statement by noting that "this conclusion can be reconsidered in the light of new facts or evidence."
Allegations of Complicity
The prosecutor's investigations were principally concerned the actions of nationals of parties to the statute. However, some of the communications complained that nationals of state parties [most notably the United Kingdom] may have been accessories to crimes committed by nationals of non-States Parties [i.e. the United States]. Under the ICC statute this is a "war crime" founded on accessorial liability [aiding, abetting et cetera] and in the International Criminal Tribunal for the Former YugoslaviaInternational Criminal Tribunal for the former Yugoslavia
The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, more commonly referred to as the International Criminal Tribunal for the former Yugoslavia or ICTY, is a...
(which follows similar laws) many defendants were accused of involvement in "joint criminal enterprises".
In footnote 10 of his letter the Prosecutor said "the available information provided a reasonable basis with respect to a limited number of incidents of war crimes by nationals of States Parties, but not with respect to any particular incidents of indirect participation in war crimes".
This means he did not find a reasonable basis to proceed against nationals of state parties on the basis of complicity in war crimes carried out by non state parties. It is not, as such, a finding that war crimes were not carried out by non state parties. The prosecutor did not express a conclusion on that matter since that was not within his competence.
The statement by the prosecutor did not appear to address any accusations of war crimes or complicity by citizens of State Parties during the subsequent occupation and rule by the Coalition Provisional Authority
Coalition Provisional Authority
The Coalition Provisional Authority was established as a transitional government following the invasion of Iraq by the United States and its allies, members of the Multi-National Force – Iraq which was formed to oust the government of Saddam Hussein in 2003...
, or after the official handover of Iraqi sovereignty
Iraqi sovereignty
Iraqi sovereignty was interrupted by the multinational forces which overthrew Saddam Hussein in the 2003 invasion of Iraq.On 8 June 2004, the United Nations Security Council resolution 1546 was adopted unanimously, calling for "the end of the occupation and the assumption of full responsibility and...
. For example, no mention was made of any involvement by citizens of State Parties (e.g. the Scottish
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
Black Watch
Black Watch
The Black Watch, 3rd Battalion, Royal Regiment of Scotland is an infantry battalion of the Royal Regiment of Scotland. The unit's traditional colours were retired in 2011 in a ceremony led by Queen Elizabeth II....
regiment) in the US attack on Fallujah
Fallujah
Fallujah is a city in the Iraqi province of Al Anbar, located roughly west of Baghdad on the Euphrates. Fallujah dates from Babylonian times and was host to important Jewish academies for many centuries....
in 2003, which resulted in accusations of war crimes — though mainly by US and Iraqi government troops and Iraqi insurgents
Iraqi insurgency
The Iraqi Resistance is composed of a diverse mix of militias, foreign fighters, all-Iraqi units or mixtures opposing the United States-led multinational force in Iraq and the post-2003 Iraqi government...
(who are not under ICC jurisdiction), rather than British forces.
See also
- Legality of the Iraq WarLegality of the Iraq WarThe legality of the invasion and occupation of Iraq has been widely debated since the United States, United Kingdom, and a coalition of other countries launched the 2003 invasion of Iraq...
- Command responsibilityCommand responsibilityCommand responsibility, sometimes referred to as the Yamashita standard or the Medina standard, and also known as superior responsibility, is the doctrine of hierarchical accountability in cases of war crimes....
- Abu Ghraib torture and prisoner abuseAbu Ghraib torture and prisoner abuseBeginning in 2004, human rights violations in the form of physical, psychological, and sexual abuse, including torture, rape, sodomy, and homicide of prisoners held in the Abu Ghraib prison in Iraq came to public attention...
- AMICC (American NGO Coalition for the International Criminal Court)AMICC (American NGO Coalition for the International Criminal Court)The leads the civil society movement for full United States participation in the International Criminal Court.With over 40 member and observer organizations, AMICC is a national coalition made up of US-based non-governmental organizations that works to build support for the International Criminal...
- Benjamin B. FerenczBenjamin B. FerenczBenjamin Berell' Ferencz is a Romanian-born American lawyer. He was an investigator of Nazi war crimes after World War II and the Chief Prosecutor for the United States Army at the Einsatzgruppen Trial, one of the twelve military trials held by the U.S. authorities at Nuremberg, Germany...
- List of War Crimes
- Nuremberg PrinciplesNuremberg PrinciplesThe Nuremberg principles were a set of guidelines for determining what constitutes a war crime. The document was created by the International Law Commission of the United Nations to codify the legal principles underlying the Nuremberg Trials of Nazi party members following World War II.- Principle...
- Review Conference of the International Criminal Court StatuteReview Conference of the International Criminal Court StatuteA Review Conference of the Rome Statute took place from 31 May to 11 June 2010, in Kampala, Uganda to consider amendments to the treaty that founded the International Criminal Court....
- United States and the International Criminal CourtUnited States and the International Criminal CourtThe United States is not a member of the International Criminal Court . The ICC is a permanent international criminal court, founded in 2002 by the Rome Statute to "bring to justice the perpetrators of the worst crimes known to humankind - war crimes, crimes against humanity, and genocide",...
- War crimes committed by the United StatesWar crimes committed by the United StatesThe United States of America has been accused of committing war crimes at various points throughout its history. Most, but not all contemporary war crimes are defined by the International Criminal Court , the Geneva Conventions, and the associated laws of war under international law...
- War Crimes
- Drop weaponDrop weaponA drop weapon is a weapon carried by a soldier for the purpose of placing on or near a slain individual to make that person appear to be an enemy combatant or insurgent, or alternatively left in the open for the purpose of firing on the individual who picks it up.*Throwaway...
- Wedding party massacreWedding party massacreThe Mukaradeeb wedding party massacre refers to the American shooting and bombing of a wedding party in Mukaradeeb, a small village in Iraq near the border with Syria, on May 19, 2004...
- Donald Payne (British Army soldier)
- July 12, 2007 Baghdad airstrikeJuly 12, 2007 Baghdad airstrikeThe July 12, 2007 Baghdad airstrikes were a series of air-to-ground attacks conducted by a team of two United States Army AH-64 Apache helicopters in Al-Amin al-Thaniyah, in the district of New Baghdad in Baghdad, during the insurgency that followed the Iraq War.In the first strike "Crazyhorse 1/8"...