phase: Preliminary Examinations, Closed - Decision Not to Proceed
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 MNF-I 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. The UK is a State Party to the ICC and ratified the Rome Statute on October 4, 2001. 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.
In its 2017 report on preliminary examinations, the OTP said it had found a reasonable basis to believe that members of UK armed forces committed war crimes (willful killing/murder, torture and inhuman/cruel treatment, outrages upon personal dignity, and rape or other forms of sexual violence) against Iraqi persons in their custody. The OTP then assessed admissibility (complementarity and gravity), including the genuineness of domestic proceedings in the UK (the willingness of UK authorities to genuinely investigate and prosecute abuses), in light of allegations of attempts to shield perpetrators from liability.
On December 9, 2020, the Prosecutor decided to close the preliminary examination in Iraq/UK without opening an investigation. After assessing the various domestic investigations and processes conducted by the UK in a detailed report, the Prosecutor determined that despite concerns expressed in the report regarding certain processes, the OTP could not conclude that the UK has been unwilling genuinely to investigate or prosecute, or that decisions not to prosecute resulted from that unwillingness. Specifically, the OTP:
”[could] not conclude that the relevant investigative inquiries or investigative/prosecutorial decisions were made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; that there has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice; or that the proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.” (para. 502)
For more information on the preliminary examination in Iraq/UK, please visit the ICC page.