This article is part of our series on Challenges to the Rule of Law in Times of Crisis. Read the series introduction at this link.
From 16 June this year, the International Criminal Court (ICC) will have a new Prosecutor, Karim Khan QC. The change provides a good opportunity to ask some questions about the ICC’s approach to prosecuting war crimes, as he takes over from Fatou Bensouda, at a time when two recent decisions of the ICC have been receiving much criticism. On 9 December 2020, the Office of the Prosecutor (OTP) announced that it would not be conducting a formal investigation into war crimes committed by British forces during the Iraq conflict (2003-09). The Prosecutor said that, although she had established that there was a reasonable basis for concluding that war crimes had been committed, she had been unable to conclude that the UK had been unwilling genuinely to investigate and prosecute those crimes. In the second decision, the Pre-Trial Chamber (PTC) approved the OTP’s request to open a formal investigation into war crimes committed in the Palestinian Occupied Territory controlled by Israel.
Much of the criticism in the international legal press has involved pouring over the 1998 Rome Statute, that established the ICC and governs its proceedings. I should like to take a step-back from that, although it is impossible to avoid it completely, and ask what we should expect of the ICC in its attempts to investigate and prosecute war crimes. I shall begin by explaining in broad terms how the ICC was set-up to prosecute war crimes, for those who are not familiar with it. I will then look at some of the main issues that are, or will be, significant for the decisions involving the UK and Israel. First, what level of war crimes the ICC was established to investigate and prosecute and, second, how national and international responsibility for prosecuting war crimes was apportioned through the concept of ‘complementarity’.
The purpose of the ICC is set out in the Preamble to the Rome Statute as being to ensure ‘that the most serious crimes of concern to the international community as a whole must not go unpunished [and]…to put an end to impunity for the perpetrators of those crimes’. As well as war crimes, these include genocide, crimes against humanity, and aggression. At the same time, the Preamble recognized that it was ‘the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’ and that ‘the International Criminal Court…shall be complementary to national criminal jurisdiction’. The Statute provided a compromise over the division between national and international responsibility through the concept of complementarity. It had been the result of protracted negotiation between those who thought that crimes should only be prosecuted with the consent of the State having jurisdiction over them and those who thought that the Prosecutor should have independent discretion to prosecute war crimes. The compromise left the Prosecutor having to defer to a State’s investigation and prosecution unless it was ‘unwilling or unable genuinely’ to prosecute crimes committed by their citizens or on their territory. However, it was the Prosecutor who would decide after her own inquiry – a decision which is, however, revisable by the Pre-Trial Chamber. The first stage of an OTP inquiry is known as a preliminary examination and it may be initiated by the Prosecutor, often after receiving information from NGOs and victim-support groups. In the Iraq/UK case, the OTP opened a preliminary examination in 2004 after receiving information of alleged war crimes but quickly terminated it after finding that there was no ‘reasonable basis’ for concluding that war crimes had been committed – having a ‘reasonable basis’ is the required standard for it to proceed. However, after receiving further information in 2014, the OPT reopened the inquiry but in 2020 concluded that, although there was a reasonable basis to conclude that certain war crimes had been committed and there had been few prosecutions and only one conviction, the UK was not unwilling genuinely to investigate and prosecute those responsible. If we put this case together with the opening of the Palestinian investigation, they raise a fundamental question over what we expect of the ICC in these cases, which it would be worth addressing before the Prosecutor spends years on assessing whether Israel is unwilling genuinely to prosecute war crimes in the Palestinian Occupied Territory.
The first issue is what level of war crimes the ICC should prosecute. There is little history of the prosecution of war crimes but it is clear enough that there have been few domestic prosecutions within the UK and Western States generally and that the main forums for prosecution have been the international tribunals set up after the Second World War and then after the atrocities committed in the former Yugoslavia and Rwanda, which included very serious war crimes. There was a wide divergence of views among the delegates at the Rome conference as to whether the Prosecutor should have complete discretion to investigate all allegations of war crimes or only those that could be said to be particularly serious. The debate resulted in the introductory words to Article 8 of the Rome Statute which lists the types of war crimes, the ‘chapeau’ as it is called, stating that ‘[t]he Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy of a large scale commission of such crimes’. The wording ‘in particular’ was supposed to represent a compromise that, at least to some, meant that the Prosecutor’s discretion was limited to large scale situations but in practice the Prosecutor has virtually ignored the restriction. Instead, it is common to refer to ‘serious’ cases but serious is even more ambiguous as it may refer to the quantity or the quality of the crimes. This may then lead to an invidious process where crimes are ranked in terms of ‘seriousness’.
The second issue is how the principle of complementarity should work in practice. To some extent this problem is connected to the first as, if the bar is set high at large scale crimes, then those situations falling below that bar will be matters only for the States concerned. However, there is also a more general problem which results from the implementation of the principle in the Statute. The Prosecutor may begin a preliminary examination to establish whether there is reasonable basis to proceed with an investigation (Art. 15(3)). In the Iraq/UK inquiry the Prosecutor interpreted this as there being a reasonable basis to believe that war crimes had been committed. However, the test of that is considerably different from the test required to proceed with a prosecution which is usually stated as being that there is a reasonable or a realistic prospect of conviction. At trial, the test then becomes that the evidence to convict is true ‘beyond any reasonable doubt’. The Prosecutor decided that these differences required her to determine whether there were decisions not to prosecute in the cases she had identified that showed that the UK was unwilling genuinely to do so, and she concluded that they did not. The allegations which were at the heart of Iraq/UK issue were, therefore, being tested from two different standards, the evidence that a crime has been committed and the evidence that would be necessary to have a reasonable prospect of a particular conviction. The difference in standards is not only a practical matter of the use of limited court resources and funding but also one of the rights of the accused not to be detained for trial unless there is reasonable suspicion that he or she has committed an offence.
It seems, therefore, that the uncertain compromises made in the Rome Statute remain unresolved and problematic in practice. The appointment of a new Prosecutor provides an opportunity to address these issues. He might begin by attempting to resolve the uncertainties through a policy statement that addresses the disparity in evidential standards required between preliminary examination and prosecution. This could, for example, be achieved through the exercise of Prosecutorial discretion to decline to pursue investigations that have no reasonable prospect of securing convictions as it is not in the interests of justice to do so. At a more technical level, he could require legal organizations submitting evidence to include a legal opinion that it meets the evidential standard of proof. He might also seek an interpretation from the Court of the chapeau to Article 8 and whether the words ‘in particular’ are words of limitation to large-scale cases.