As Iraq is not an ICC member state, the ICC preliminary examination has focused on potential Rome Statute crimes committed on Iraqi territory by nationals of ICC member states.
The ICC has conducted two phases of preliminary examination in Iraq.
In February 2006, the prosecutor at the time closed the first Iraq preliminary examination because, based on the information available to him, there was no indication of crimes within the ICC’s jurisdiction. While evidence of war crimes committed in Iraq between May and March 2003 was found, there was no proof of an excessive and international attack against civilians, neither was their proof of involvement of nationals of ICC state parties. In relation to allegations of wilful killing and inhuman treatment of civilians, the prosecutor concluded that the gravity threshold of the crimes was not met.
The ICC prosecutor reopened the preliminary investigation in May 2014 after having received new information on war crimes, including alleged torture and killings of hundreds of detainees, committed by UK soldiers between 2003 and 2008 in Iraq. Other alleged crimes committed in UK-controlled detention facilities are a denial of a fair trial, rape, and sexual violence. In its admissibility assessment, the Office of the Prosecutor is considering physical perpetrators as well as other military or civilian personnel who may bear responsibility. The Prosecutor also monitors national investigations taking place in the UK. In March 2010, the UK Ministry of Defence set up a specialized body, the Iraq Historic Allegations Team (“IHAT”) to investigate abuses in UK detention facilities. The Service Police Legacy Investigations (“SPLI”) took over the remaining IHAT investigations at the beginning of July 2017, with national investigations resulting in at least one conviction. However, the Prosecutor of the ICC notes that these proceedings focused on low-level and mid-level perpetrators and did not address the gravest crimes, including killings. Moreover, the Office of the Prosecutor is carrying out its gravity assessment under Art. 8(1) of the Statute. According to the article, the Court should focus particularly on cases of war crimes committed on a large scale as part of a plan or pursuant to a wider policy. It remains unclear whether the scale of the alleged crimes is as large as assumed in the communication and meets the admissibility criteria The Office of the Prosecutor is currently looking into whether the crimes fall within the jurisdiction of the court, and monitoring whether investigations by UK authorities are taking place.
ICC prosecutor clarifies scope of preliminary examination
In 2016, following the publication of the Chilcot Report into the role of the government of Tony Blair in the Iraq war, the ICC prosecutor issued a statement indicating the Court would review “relevant material that could provide further context to the allegations of war crimes by British troops in Iraq.”
The prosecutor also indicated that since ICC jurisdiction over the crime of aggression has not yet been activated, “specific question of the legality of the decision to resort to the use of force in Iraq in 2003 – or elsewhere – does not fall within the legal mandate of the Court, and hence, is not within the scope of its preliminary examination.”
In April 2015, the ICC prosecutor stated that the ICC would not proceed with a preliminary examination into ISIS, as the OTP determined that while many ISIS fighters come from ICC member states, most of the group’s leadership come from Iraq and Syria—neither of which has joined the Court. Since the stated policy of OTP is to go after those most responsible for alleged crimes—usually those in leadership positions—the prosecutor stated that the ICC lacks jurisdiction to take action.
