phase: Preliminary Examinations, Subject Matter Jurisdiction Assessement
The Preliminary Examination of the Situation in Iraq focuses on alleged atrocity crimes committed during an armed conflict which involved international forces (Multinational Force-Iraq (MNF-I), U.S. forces, UK forces), Iraqi government forces, and anti-government groups such as Al-Qaeda in Iraq and Islamic Army in Iraq. The preliminary examination focuses on the UK forces engagement in the armed conflict during the period of March 2003 to July 2009.
In conjunction with its War on Terror and its war against Afghanistan, the U.S. considered a war against Iraq and claimed that the Saddam Hussein-headed government of Iraq had close ties to Al Qaeda, possessed weapons of mass destruction (chemical, biological), and sought nuclear weapons. On March 20, 2003, a U.S. and UK-led coalition of forces invaded Iraq. In April 2003, the Saddam Hussein-headed government was ousted. In May 2003, the U.S.-led Coalition Provisional Authority assisted in the formation of the Iraqi Governing Council. In June 2004, the Iraqi Governing Council transferred governmental authority to the Iraqi Interim Government. On December 31, 2008, the Multi-NFI officially withdrew from Iraq. On July 28, 2009, UK forces officially withdrew from Iraq.
In the course of the conflict, civilians were killed and injured by international forces, Iraqi government forces, and various armed anti-government groups.
Iraq is not a State Party to the International Criminal Court (ICC) and has not submitted a declaration under Article 12(3) of the Rome Statute accepting ICC exercise of jurisdiction over Iraq. However, the ICC may exercise jurisdiction over acts of nationals of a State Party committed in the territory of a non-State Party under Article 12(2)(b) of the Rome Statute. In February 2006, after receiving communications of alleged atrocity crimes committed in Iraq and conducting a preliminary examination, the ICC Office of the Prosecutor (OTP) closed the preliminary examination. On May 13, 2014, after receiving new communications of alleged atrocity crimes committed in Iraq by nationals of the UK, the OTP reopened the preliminary examination. After opening a preliminary examination, to make a determination to open a formal investigation, the OTP assesses the following factors: jurisdiction (temporal, territorial or personal, and subject matter); admissibility (complementarity and gravity); and the interests of justice.
As of November 2016, the preliminary examination of Iraq is in the subject-matter jurisdiction assessment phase. The OTP reported that the OTP “is currently in the process of concluding its comprehensive factual and legal assessment of information available in order to establish whether there is a reasonable basis to believe that alleged crimes committed by United Kingdom nationals . . . fall within the subject-matter jurisdiction of the Court.”
For more information on the preliminary examination in Iraq/UK, please visit the ICC page.