The International Criminal Court And The 2003 Invasion Of Iraq

The Office of the Prosecutor of the May 6 , 2005.

On 2006-02-09 , Luis Moreno-Ocampo, Chief Prosecutor of the International Criminal Court, published a letterSee reference Luis Moreno-Ocampo 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 in his decision letter, that essentially two sets of complaints were involved.

:(1) Complaints concerning the legality of the invasion itself; and

:(2) 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) wilful killing or inhuman treatment of civilians.

As regards the legality of the invasion, 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"Luis Moreno-Ocampo Page 4: Section Allegations converning the Legality of the Conflict. According to an ICC press release, the Assembly Of States Parties Of The ICC may adopt such a definition at a review conference scheduled for 2009 Page 4: Jurisdiction of the ICC: Section: The Crime of Aggression (PDF).

As regards the allegations of targeting of civilians or clearly excessive attacks, he said 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.Luis Moreno-Ocampo Page 6Luis Moreno-Ocampo Page 6: Footnote 12

He also considered in this context whether there were incidents where even though civilians were not intentionally targeted, the attack was nonetheless clearly excessive 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."Luis Moreno-Ocampo Page 5

As regards the allegations of wilful killing or inhuman treatment of civilians, he concluded that there was a reasonable basis to believe that crimes within the jurisdiction of the Court had been committed, namely wilful killing and inhuman treatment. He explained that the information available did support a reasonable basis for an estimated 4 to 12 victims of wilful killing and a limited number of victims of inhuman treatment, totaling in all less than 20 persons.Luis Moreno-Ocampo Page 8

However he 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 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 wilful 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."Luis Moreno-Ocampo Page 9

However he also noted that this conclusion can be reconsidered in the light of new facts or evidence." Luis Moreno-Ocampo Page 9 Conclusion. Also explained in Footnote 9 on page 3 this is coverd by The Rome Statute Article 15(6)

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 notably the United Kingdom may have been accessories to crimes committed by nationals of non-States Parties the United States . Under the ICC statute this is a "war crime" founded on accessorial liability abetting etc. In footnote 10 of his letter the Chief 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.Luis Moreno-Ocampo Page 3: Footnote 10

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.

SEE ALSO

REFERENCES

Luis Moreno-Ocampo '' Letter:Public reply with his conclusions allagationsof war crimes during the invasion of Iraq in March 2003 ''(PDF) 9 February 2006

FOOTNOTES

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The International Criminal Court And The 2003 Invasion Of Iraq