The International Criminal Court: Now Simply Indefensible 303


Support for the rule of international law, and for the institutions which uphold it, is one of the principles of this blog. I have therefore always been extremely keen to defend and support the International Criminal Court, despite widespread criticism that it is simply a tool for use against leaders in the developing world and other opponents of the neo-con world order. I maintained that the standard of justice and investigation in the cases it did consider was generally good, and the need was to widen its ambit.

Unfortunately, the decision of the ICC to close down its investigation into War Crimes committed by the British in Iraq is the last straw for me in continuing to harbour any hope that the ICC will ever be anything more than an instrument of victors’ justice. I have read the entire 184 page report which closes down the investigation, and it is truly shocking. It is shocking in the outlining of British war crimes, but what really shocked me is the truly appalling picture that clearly emerges of the attitudes of the International Criminal Court.

I am afraid this article is rather heavy going, and requires you to read some rather lengthy sections of the report to show what I mean. Nothing is so damning of the ICC as the words of their own report, so I do not apologise for this approach. I would say that what I found really did shock me and has completely changed my mind about the value of the International Criminal Court as an institution. As I flatter myself I have a reasonably good grasp of such matters, I am proceeding on the assumption that what was startling to me will probably be startling to you, and you will find this worth reading.

The launching of the Iraq War was itself the most serious single war crime of this century to date, and the ICC had previously ducked it by arguing that the Statute of Rome which founded the Court did not at the time of the war include illegal war of aggression among its list of war crimes. I argued then and I argue now that this did not remove that crime from its jurisdiction. The crime of illegal war of aggression was already firmly a part of customary international law and the very foundation of Nuremberg, so the ICC did not need specific mention in the Treaty of Rome to be able to prosecute it.

The current ICC report on British war crimes in Iraq however simply blandly reiterates the line (para 35):

Finally, although a number of communication senders have also made allegations relating to decision of the UK authorities to launch the armed conflict, the Office takes no position on legality of war given the non-applicability of the crime of aggression at the material time.

It was perhaps always Utopian to imagine that Blair, Straw, Campbell, Scarlett, Dearlove etc would pay for their crimes. But it did seem very probable that the ICC would prosecute at least some of those directly responsible for committing war crimes on the ground. Alas, the ICC has now produced 184 pages of mealy-mouthed sophistry and responsibility-dodging to justify why there will be no further investigation, let alone prosecutions. I have read the full report and frankly it makes me feel sick. But I shall still try to elucidate it for you.

This ICC report does give an account of the origin of the Iraq War, and it is astonishing. At para 36 it states the UK/US case for the invasion as historical truth, as though that were the simple and uncontested fact of the matter.

36. After the January 1991 Gulf War, the Security Council adopted a resolution setting out ceasefire terms, including ending production of weapons of mass destruction and permitting inspection teams on the territory of Iraq. In September 2002, the US and UK argued that Iraq was in material breach of the relevant resolutions and was seeking to develop weapons of mass destruction. UN weapons inspectors stated they had not found any “smoking gun” in their search for weapons of mass destruction, but noted that this was “no guarantee that prohibited stocks or activities could not exist at other sites, whether above ground, underground or in mobile units”. The US gathered a coalition of 48 countries, including the UK, for the stated purpose of searching and destroying alleged weapons of mass destruction in Iraq.

That is it. That is the ICC’s entire account of the origin of the Iraq War. The notion that Security Council Resolution 699 of 1991 authorised the 2002 invasion – a position never endorsed by the Security Council – appears to be taken as read despite being the most hotly disputed question in international law of all time. The selectivity of the cherry-picked quote from the weapons inspectors is an audacious bit of sophistry given it is taken from a report in which the weapons inspectors detailed they found no evidence of WMD, that cooperation from the Iraqi authorities was improving, and asked for more time and resources to complete their work. Even more flabbergasting, this ICC report paragraph gives as a supporting footnote the infamous UK government “dodgy dossier” on Iraqi WMD, a totally discredited document, without any indication there is any problem with it.

The truth is, that the paragraph in the report by the ICC prosecutor on the origin of the war is precisely as the UK would draft it, and in its unmoderated presentation of extremely contentious positions and its remarkable selectivity as to what facts are presented, it is entirely tendentious. I suspect that not only could it have been drafted by the UK government, it is very likely it was so drafted. I cannot think of anyone else, not even the current US government at time of writing, who would consider that paragraph a fair or reasonable explanation of the origins of the Iraq war.

This criticism applies to the entire document. It is written entirely in the preferred language of the invaders. For example, Iraqis resisting the foreign occupation are referred to as “insurgents” throughout the document. We first see this in para 43, in the statement that the British forces in Basra faced “an increasingly violent insurgency”. Oh, those poor innocent British forces, sitting at home in Basra, facing invasion from “insurgents” who had surged in from… from… err, Basra. The idea that the invaders were the respectable power and the locals were “insurgents” may be the language of the British MOD and may be adopted by the Daily Mail, but it should not be the language of the International Criminal Court. Here again, the prosecutor simply accepts the entire British framing of the narrative. Insurgents are referred to throughout.

Not only is the entire report written in the British voice, it entirely omits the Iraqi voice. The Prosecutor has written a report on British war crimes against Iraqis. The Prosecutor accepts there is credible evidence that hundreds of such war crimes were committed. Yet nowhere is there one single direct quote from an Iraqi victim. Not one. In the hundreds of references, The Prosecutor has based the entire report on whether to prosecute Brits for crimes against Iraqis, solely on interviews with Brits in official positions.

Everything is seen through the British military lens. To give another small illustration of this point, a skirmish at Majar-al-Kabir, following which captives were grossly mistreated, is referred to as “The Battle of Danny Boy”, which it is called by nobody except the British army. The ICC should not be calling a site in Iraq by the name the British army gave their checkpoint there, nor representing a skirmish involving 100 people as a “battle” because the British army does. “The Battle of Danny Boy” is a good illustration of the way that this report is written entirely through the British military gaze using British, not Iraqi, terms.

This next fact alone sufficiently illustrates my point, and entirely damns both this report and the International Criminal Court. Of the 776 footnotes, not a single one references a document in Arabic or in translation from Arabic. Not one. The vast majority of references are to official British documents. On the rare occasions when Iraqis are mentioned in the report, it is frequently to impugn their reliability as witnesses. The Iraqi individual most discussed – still briefly – is not a victim but a lawyer engaged in collecting testimonies. The Iraqi voice has gone unheard in this ICC decision. The victims are unconsidered.

You will search in vain for the Iraqi voice even where it could easily be found, in the witness statements of Iraqis to the British courts the report so freely quotes. But no, where Iraqi experience is recounted at all it is thoroughly mediated by British judges or other authorities.

Yet remarkably the report accepts that British forces were responsible for war crimes on a substantial scale. The report was written by a team, and plainly the team that was setting out the facts on the ground held rather different views from the politically influenced bosses who were writing the conclusions. The report notes:

70. The UK deposited its instrument of ratification to the Rome Statute on 4 October 2001. The ICC therefore may exercise its jurisdiction, from 1 July 2002 onwards, over alleged acts of war crimes, crimes against humanity and genocide committed either on UK territory or by UK nationals on the territory of other States.
71. As set out more fully below, on the basis of the information available, there is a reasonable basis to believe that, at a minimum, the following war crimes have been committed by members of UK armed forces:
wilful killing/murder under article 8(2)(a)(i)) or article 8(2)(c)(i));
torture and inhuman/cruel treatment under article 8(2)(a)(ii) or article 8(2)(c)(i));
outrages upon personal dignity under article 8(2)(b)(xxi) or article 8(2)(c)(ii));
rape and/or other forms of sexual violence under article 8(2)(b)(xxii) or article 8(2)(e)(vi)).

Then again:

113. The information available provides a reasonable basis to believe that in the period from April 2003 through September 2003 members of UK armed forces in Iraq committed the war crime of wilful killing/murder pursuant to article 8(2)(a)(i) or article 8(2)(c)(i)), at a minimum, against seven persons in their custody. The information available provides a reasonable basis to believe that in the period from 20 March 2003 through 28 July 2009 members of UK armed forces committed the war crime of torture and inhuman/cruel treatment (article 8(2)(a)(ii) or article 8(2)(c)(i)); and the war crime of outrages upon personal dignity (article 8(2)(b)(xxi) or article 8(2)(c)(ii)) against at least 54 persons in their custody. The information available further provides a reasonable basis to believe that members of UK armed forces committed the war crime of other forms of sexual violence, at a minimum, against the seven victims as well as the war crime of rape against one of those seven victims while they were detained at Camp Breadbasket in May 2003. Where such detainee abuse occurred, this typically arose in the early stages of the internment process, such as upon capture, initial internment and during ‘tactical questioning’.
114. As noted above, the findings set out above are a sample pool of incidents which, while not reflecting the full scale of the alleged crimes relevant to the situation, were sufficiently well supported to meet the reasonable basis standard and allow the Office to reach a determination on subject-matter jurisdiction.

Later the following aggravating factor is considered:

140. The manner in which these crimes are alleged to have been committed also appears to have been particularly cruel, prolonged and severe. Notably, in five cases of deaths in custody, the victims were allegedly tortured – or at least severely and repeatedly assaulted – by UK personnel who detained them prior to their death. In the killing of Baha Mousa in September 2003, the victim was hooded for almost 24 hours during his 36 hours of custody and suffered at least 93 injuries prior to his death.

It is important to note that this appalling catalogue of crimes, where there was a reasonable prima facie case to proceed, represented only a very small sample of the thousands reported to the International Criminal Court. But even this small sample convinced the prosecutor that there was good enough evidence for the investigation to go forward.

So why did it not proceed? The Prosecutor decided to drop the case on the principle of “Complementarity”. This means that the ICC cannot prosecute if the government concerned – the UK government in this case – is itself genuinely investigating or prosecuting. The prosecutor based the decision not to proceed on these provisions of the Statute of Rome:

But none of the catalogue of crimes for which there is good evidence, examined by the ICC, had resulted in prosecution. In fact the report detailed that not a single prosecution had resulted from the work of the Iraq Historic Allegations Team (IHAT) in the MOD, although they had investigated scores of cases which the IHAT itself – consisting of former military and retired policemen – considered viable. In every single case, the proposal for a prosecution had been knocked back by the Service Prosecuting Authority (SPA).

In fact the ICC only references two cases in which there were convictions for war crimes, and in both cases the conviction was purely because somebody immediately admitted the truth and confessed at the initial investigation stage. The maximum sentence given out was just one year in prison. The report’s account of how one of these convictions from confession came to fruition is extremely revealing:

91. Several notable features stand out from the Camp Breadbasket court martial. First, although multiple military personnel knew about the alleged abuses (including the alleged sexual crimes), each failed in their duty to report them. The conduct only came to light when one of the soldiers involved in taking trophy photographs had the photographs developed in a civilian shop and the shop assistant reported the conduct to civilian police, who made an arrest. Second, during his testimony, when asked why he had not reported alleged criminal conduct at Camp Breadbasket, Corporal Kenyon asserted that, “there was no point in passing anything up the chain of command, because it was the chain of command who was, in my eyes, doing a wrongdoing to the Iraqis to start off with, and they were passing Iraqis down to us, for us to do the same things basically”.

The key fact here is that the MOD’s processes and investigations had nothing whatsoever to do with the conviction. It came about because of the chance of a civilian seeing the photo and bringing in the civilian police, who had plain and undeniable photographic evidence of torture and sexual abuse. Otherwise this would have been entirely covered up by the MOD, exactly like all the other thousands of cases bar one other (in which somebody wracked by conscience insisted on confessing). For the ICC to quote the Camp Breadbasket conviction as evidence the UK investigation processes are working is tendentious. It was very obviously a fluke; I cannot think of a better example of an exception that merely proves the rule.

The International Criminal Court’s decision that there are no grounds to continue investigation, on the grounds the UK’s own procedures are adequate, becomes truly incredible – in the real meaning of the word, utterly lacking in credibility – when you read this passage of the report. It really is worth reading:

380. The Office has pursued a number of lines of inquiry to independently ascertain the veracity of the BBC/Times allegations with a view ultimately to speak with the primary sources of the allegations and other persons directly involved or with knowledge of facts related to the events. Overwhelmingly, those former IHAT staff the Office spoke to indicated that they had concerns about the outcome of IHAT’s investigations. Most considered that the investigative teams did a thorough job, but when it came time for the investigations to progress to prosecutions, there was something obstructing this. The former IHAT investigators were unable to specify what this obstruction was, given their limited access to decision-making, but insisted that such obstruction came at levels higher up within IHAT or the SPA (Services Prosecuting Authority).
381. Several former IHAT investigators reported their frustration at the outcome of inquiries into systemic issues submitted for internal IHAT/IHAPT review, whether in terms of recommendation for further investigative steps or referrals for prosecution, in view of their concern that cases involving superior responsibility were prematurely terminated or that there was leadership pressure within IHAT/IHAPT not to pursue them.
382. Several former IHAT staff were of the view that IHAT’s independence and impartiality was undermined by its relationship with the army and MoD, including: its physical location on a British Army base; IHAT’s use of MoD resources and systems; and requirements that IHAT staff go through the RNP or MoD personnel for certain functions (such as securing custody and travel).
383. Multiple former IHAT staff described difficulties in accessing evidence in the possession of the RMP or the MoD. They described how some RMP and MoD personnel obstructed access to files, in their view unjustifiably; did not permit IHAT staff to locate documents they had been vetted to inspect; and imposed restrictions on access; or were repeatedly told that they had been given all of the relevant material pertaining to a certain matter, only to later discover that they had not. The former IHAT staff described how some storage boxes had been mislabelled, obscuring the discovery of relevant evidence, and their view that the RMP only gave IHAT a fraction of the relevant material they possessed.
384. The former IHAT staff the Office spoke to also conveyed the difficulties the teams encountered in attempting to interview witnesses and suspects and to conduct other investigative steps. They described multiple occasions on which their requests to interview important witnesses were blocked for either unexplained reasons or for administrative ones, such as ‘expenses not allowing’. They described how witness interviews were hampered by IHAT refusing to reimburse witnesses for travel, travel details being changed at the last minute and in one case a potential witness being arrested before meeting with investigators. Some had the impression that IHAT management were trying to put obstacles in their way. Multiple former IHAT staff relayed their impression that there was no will on the part of IHAT management to allow proper investigations which would result in prosecution.
385. Concern was also expressed over the SPA’s involvement in the termination of cases. Several former IHAT staff that the Office spoke to felt that the SPA, as part of the MoD, was not truly independent or impartial respecting the armed forces. Multiple individuals with extensive civilian criminal investigations experience described how the investigation teams built cases which they considered were evidentially strong and ready to proceed, but the SPA refused to lay charges. With respect to certain alleged killing incidents, the view was conveyed that evidence supporting charges of manslaughter or murder, which would have proceeded in a domestic civilian police inquiry, were discontinued by the SPA.

Read that, and then consider that the conclusion of the International Criminal Court report is that their investigation must be dropped as there is no evidence that the UK is not diligently pursuing prosecutions.

The ICC then details a dozen paragraphs of what I would characterise as bland managerial reassurances from the MOD that these concerns are unwarranted, a result of the limited understanding of junior staff, and decisions not to prosecute have always been taken on the advice of external counsel. You are welcome to read that section of the report starting at para 386. The ICC accepts these reassurances and the British Government view as genuine without question, never for example considering that the MOD might have external counsel of notable militarist views and disinterest in human rights. The fact that external counsel is involved in the decisions not to prosecute is taken by the ICC as substantial guarantee that the procedure is genuine.

After the IHAT was closed down its workload was transferred to the smaller Service Policy Legacy Investigations Team, which immediately closed down 1213 out of the 1283 cases it inherited. That this indicates that a genuine process is underway is apparent to the ICC, but not to me. The report also notes something remarkable about the IHAT’s approach in that it categorised cases into three tiers, of which only the first tier was actively pursued. The second tier were cases considered less serious so it was not “proportionate” for them to be pursued. But consider what was in the second tier. This is from para 355 of the report:

Tier 2 allegations are those that may meet the investigative threshold of the SPLI but are dependent upon a further review. They are cases of moderate severity and ill-treatment where no life changing injuries or significant psychological harm has been sustained. Examples of Tier 2 cases could include, but are not limited to, GBH type offences that are not of a life changing nature; e.g. broken bones and or fractures. Tier 2 allegations could also include lower level sexual allegations e.g. intimate searches, and other treatment of a serious nature i.e. mock execution, nonfatal shootings and electrocution.

But as the report notes, this almost all meets the definition of torture: GBH inflicting broken bones and “non-fatal shooting”, as well as “lower level” sexual abuse is pretty serious stuff. If somebody shot you in the knee while holding you captive, would you think it “proportionate” for them to be prosecuted? The MOD would not – subject to an unspecified future review.

The question of the work of the IHAT being frustrated by senior management is one of those instances where the content of the report is at such variance with its conclusions, it is pretty clear that these were not written by the same people. In fact, the report returns to the concerns of IHAT staff again, plainly giving real weight to something earlier paragraphs had already dismissed:

408. The Office spoke with a number of former staff of IHAT who held different levels and functions. This sample of individuals was to some extent self-selected (being persons who were willing to speak to the Office). Accordingly, there may be limits to the representativeness of their experiences as compared with that of former IHAT staff as a whole. The Office nonetheless notes that the views of these individuals were on the whole balanced, as evidenced through their advancement of both praise and critique for various aspects of IHAT’s work. The Office also accepts that these individuals were not natural ‘whistle-blowers’. As former law enforcement personnel bound by confidentiality undertakings with their former employer and liable for penal sanction for potentially breaching protections on classified information, they may have been naturally reticent to speak with the ICC, which also reduces their likelihood of having made frivolous or malicious allegations. On the whole, the information received by the Office corresponds to the reports made in the BBC Panorama programme and in the Sunday Times.
409. The Office views with concern the fact that professional IHAT investigators – drawn from experienced retired officers of civilian police forces or serving Royal Navy Police personnel – would have made allegations of a cover-up or expressed concerns over the fate of the IHAT investigations that they worked on.

The schizophrenic report attempts to reconcile this by constantly referencing only para 2 (a) of the admissibility criteria, and claiming that neither the lack of prosecutions nor the allegations of IHAT staff give conclusive evidence that criminals are being deliberately shielded from prosecution. The report claims on the basis of previous court decisions that for a case to be admissible, “shielding” by the state must be proven to the standard of criminal proof. I am not sufficiently expert in the court’s previous judgements to know if that is true. But on the face of it, it is an extremely curious view of the admissibility criteria, read as a whole. Even apart from that, the evidence of shielding of soldiers by the MOD appears to be fairly compelling; certainly enough to justify further investigation.

The detail of the report gives ample evidence, much of it from UK courts, that cases are not being adequately investigated, that prosecutions are not being properly pursued, and that the military are conspiring – “Closing ranks” as more than one senior judge has put it – to cover up crimes, and getting away with it.

Para 213
The commanding officer referred Baha Mousa’s death for investigation by the RMP’s SIB, which was concluded in early April 2004 and resulted in the court martial of seven soldiers of the QLR. The court convicted Corporal Donald Payne of inhuman treatment but acquitted him of manslaughter and perverting the course of justice. He was sentenced to one year’s imprisonment. Payne appears to have been the first British soldier ever to be convicted in the UK of a war crime. In the case of five other defendants, the Judge Advocate ruled that there was no case to answer due to lack of evidence, while two further accused were cleared by the jury of negligently performing the duty of ensuring that detainees were not ill-treated by men under their command.331 Justice MacKinnon, who presided over the court martial, acknowledged that despite his finding that Baha Mousa’s injuries were the result of numerous assaults over 36 hours “none of those soldiers have been charged with any offence simply because there is no evidence against them as a result of a more or less obvious closing of ranks”.

A similar example:

217. Naheem Abdullah died from a blow or blows to the left side of his head inflicted by one or more soldiers of a section of the 3rd Batallion of the Parachute Regiment while in their custody in Maysan Province on 11 May 2003.346 Naheem Abdullah’s death was investigated by the RMP’s SIB in 2003 and seven soldiers were charged with murder. At a court martial on 3 November 2005, the Judge Advocate found that the evidence did not permit a conclusion to be drawn on the individual responsibility of each defendant. The Judge Advocate criticised the RMP’s SIB investigation as “inadequate” with “serious omissions” by investigators in not searching for records of hospital admissions or registers of burials.
218. During the Ali Zaki Mousa litigation, the UK High Court noted its concern that IHAT had not taken the case forward despite the court martial finding that the death was a result of an assault by the section to which the soldiers belonged.
219. On 27 March 2014, the Secretary of State for Defence announced that an IFI investigation into Naheem Abdullah’s death had been commissioned in order to comply with the High Court’s decision in Ali Zaki Mousa (No. 2) but that “no prosecutions will result”. The IFI made “exhaustive inquiries about the whereabouts of the transcript of the court martial” but concluded it had probably “been destroyed or thrown away”. It further noted that the soldiers had not given oral evidence, been examined or cross-examined and found that the “need for them to give oral evidence” was a “critical aim” of the IFI inquiry.

In what universe is this not an unwillingness or inability of the UK authorities genuinely to prosecute? If this were a stabbing by a group of civilian youths, they would all be banged up under the doctrine of “common purpose”. The difficulties of prosecuting criminals who stick together are by no means the sole preserve of the armed forces, and the days when nobody could be convicted because of the problem of proving which gang member struck the fatal blow are long gone in civilian life.

The sole difficulty here is the prosecutors’ and investigators’ unwillingness to use the toolbox regularly used against gangs or organised crime, against self-protecting groups of soldier war criminals. The criminals are indeed being shielded.

Para 228 further shows the MOD’s failure in this regard is systemic:

As IHAT/SPA set out to the Office: 7 defendants were prosecuted during a six month court martial, with the case against all but 2 being dismissed by the judge at the conclusion of the prosecution case. The reasons for this outcome are complex but relate to the quality of the evidence given by the British soldiers who were called as witnesses by the prosecution. While the defence did not dispute that the detainees in this case had been subjected to serious mistreatment, including acts of violence, during their detention at “BG Main”, the detainees themselves were unable to identify which individual soldiers had been responsible for which aspects of their mistreatment or for which assault. This was primarily because the detainees had been hooded for most of the relevant time. Several of the soldiers who were called as witnesses by the prosecution proved reluctant to provide evidence against those with whom they still served, leading to what the Judge Advocate, a senior judge from the civilian system who had been brought in to try this case, described as a “more or less obvious closing of ranks”. The 2 defendants against whom the case was not dismissed at the conclusion of the prosecution case were subsequently acquitted by the Military Board after consideration of all of the evidence.

Finally, one last paragraph to illustrate that the conclusion of the report is completely incompatible with its internal evidence:

250. The Baha Mousa Inquiry report, published on 8 September 2011, made findings on the death of Baha Mousa in British custody in Basra after several days of abuse in September 2003. Five years prior to the report, seven suspects had been subject to the pre-IHAT procedure described above, which resulted in six acquittals at a court martial and one conviction for the war crime of inhuman treatment (following a guilty plea). The report found that British soldiers had subjected detainees to serious, gratuitous violence and that although doctrinal shortcomings may have contributed to the use of a process of unlawful conditioning, it could not “excuse or mitigate the kicking, punching and beating of Baha Mousa which was a direct and proximate cause of his death, or the treatment meted out to his fellow Detainees”.414 The findings did not inspire new prosecutions. On 8 June 2017, during a hearing to review the progress of IHAT investigations, Justice Leggatt noted that it was “difficult to understand why almost six years after a major public inquiry was finished in 2011 there has been no resolution of the question whether to prosecute anybody in relation to Baha Mousa.”

Yet the International Criminal Court claims not to have sufficient evidence that the UK government is not genuinely pursuing prosecutions: and remarkably states that even the passing now of legislation specifically to give an amnesty to soldiers for historic war crimes, does not radically affect its judgement as to the MOD’s practice and intent.

This report is a nonsense. It is based on adopting the UK MOD gaze throughout, and accepting that everything statted by UK official sources is true and given in good faith, which is never even questioned. The failure even to entertain the notion that the UK is acting in bad faith renders the report utterly pointless. Never can a report have been written on any subject where the internal evidence was so utterly incompatible with the conclusion. The report is the responsibility of prosecutor Fatou Bensouda. I find her motives as baffling as her conclusions.

What is however plain is that I can no longer argue that the ICC is an impartial body. Its protection of the UK not only over the initiation of the Iraq War, but even over the many crimes committed by its working level soldiers, let alone those who commanded them, stands in such stark contrast to the ICC’s treatment of those viewed as the designated enemies of the Western powers, that it has lost all moral authority.

I leave you with Ms Bensouda’s conclusions:

502. The Office recalls that, based on its evaluation of the totality of the information available, it cannot conclude that the UK authorities have been unwilling genuinely to carry out relevant investigative inquiries and/or prosecutions (article 17(1)(a)) or that decisions not to prosecute in specific cases resulted from unwillingness genuinely to prosecute (article 17(1)(b)). Specifically, for the purpose of article 17(2), the Office cannot 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.
503. On this basis, having exhausted all avenues available and assessed all information obtained, the Office has determined that the only appropriate decision is to close the preliminary examination and to inform the senders of communications. While this decision might be met with dismay by some stakeholders, while viewed as an endorsement of the UK’s approach by others, the reasons set out in this report should temper both extremes.

Do you feel a little bit sick too?

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303 thoughts on “The International Criminal Court: Now Simply Indefensible

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  • Tom Welsh

    ‘The idea that the invaders were the respectable power and the locals were “insurgents” may be the language of the British MOD and may be adopted by the Daily Mail, but it should not be the language of the International Criminal Court’.

    We might call the “insurgents” the “Resistance”, like the French people who clandestinely fought the Nazi occupiers of their country. Except that…

    Whereas the Iraqis were fighting foreign armed forces that had invaded their country in an illegal war of aggression, France had declared war on Germany in 1939. The French (and British and Americans) would argue that this was done in support of Poland, but that does not change the fact that France declared war on Germany – not the other way round.

    After France had been resoundingly defeated, the French government surrendered. Thus the Resistance fighters who attacked and killed Germans were, in law, criminals committing murder.

    In contrast, Iraqis (and Afghans and Syrians and Libyans and Yemenis) who kill British soldiers have international law on their side. They are legitimately resisting enemy forces that invaded their countries without reasonable cause.

      • Tom Welsh

        I apologize if my comment was wrong or unhelpful. I thought that its relevance was obvious, but that may be an illusion on my part.

        The French Resistance have been praised and glorified ever since I became conscious. Yet their government had surrendered, thus ending the state of war with Germany – which it had itself initiated.

        Thus any French citizen who attacked or killed Germans after the surrender was plainly not participating in a war, any more than a German who attacked or killed British or Americans or Soviets after the German surrender in 1945. Any such German was most certainly dealt with as a criminal, and would normally be executed after (or sometimes without) trial.

        I feel it is reasonable and enlightening to reveal the double standard whereby French civilians killing German soldiers when the two countries were not war were considered heroes, while Iraqis killing British or Americans troops while their countries were at war were denounced as “insurgents” or (more often) “terrorists”.

        The key point is to distinguish clearly between law and morality. It is easy to convince ourselves that we are always Good and our enemies Bad – even if they are our enemies only because we have designated them as such.

        But, as the fine article spells out, law is not so easily distorted. What is legal is legal, and what is illegal is illegal. Unless, of course, one is “a friend of the court”.

        • craig Post author

          Tom, I think the double standard is indeed telling. I think it could have been better illustrated without asserting that the actions of the French resistance were illegal, which rather detracts from the main point and is going to offend people. It is also a dubious point given the failure of the German authorities to obey any of the obligations of an occupying power.

          • Squeeth

            Come off it Craig, that’s your vestigial liberalism talking. As for occupying power, the Zone Libre wasn’t invaded until the end of 1942 yet Vichy courts had Free French prisoners murdered. That said, liberals are supposed to expect people to own any offence they take, not pass the buck.

        • Colin Alexander

          The people of France were sovereign, not the Govt, so arguably no French govt can legitimately surrender national sovereignty to a foreign power.

      • Squeeth

        I don’t agree Craig, if you want to be legalistic, you can’t trammel it with bias. The French state declared war in 1939 and then made peace with Germany in 1940. If the French resistance was legal there should be more to it than that the Germans were the baddies.

  • Tom Welsh

    “The Prosecutor has written a report on British war crimes against Iraqis. The Prosecutor accepts there is credible evidence that hundreds of such war crimes were committed. Yet nowhere is there one single direct quote from an Iraqi victim. Not one. In the hundreds of references, The Prosecutor has based the entire report on whether to prosecute Brits for crimes against Iraqis, solely on interviews with Brits in official positions”.

    That would be because – whatever specious arguments such people may advance to claim that they are not racists – racism is indelibly imprinted in their very bones.

    Obviously, to them, the deaths of millions of brown Middle Eastern people matter less than a single white European life lost. But they will never admit it.

    • Geoff S

      I think my very earliest vaguely political realisation was on this very topic. I was born towards the end of the Vietnam war and certainly had no awareness of it until it had finished, but it still loomed very large in public imagination around circa 1980 when I distinctly remember hearing it quoted in a class discussion with the teacher about how terrible war was, that 58,000 had died during the war.
      In my 7 or 8 year old naivete, I assumed that America had won, because… well because hollywood had presumably shown me that they were invincible superheroes and I asked how many of the 58k dead were American and how many were Vietnamese. Upon being told that they were all American deaths, I then quite reasonably asked “So didn’t any Vietnamese die?”. “Oh yes” was the reply, “But they’re not part of that number”.
      “Oh, so how many Vietnamese died?”
      “I don’t know” replied my teacher with a disinterested shrug.

      To be fair, it was *unintentionally* a very good lesson on the horror of war.

  • Fwl

    A fish rots from the head down. If a PM embarks on an illegal war of aggression but is himself not prosecuted or impeached by his parliament (he only misses out on the customary gong) then is it not surprising if within the army efforts are made to protect illegal acts of the troops in an illegal war. Start at the top not at the bottom.

    How is the ICC funded?

    • defo

      That’s the rub of it FWI.
      None of this would have happened without the “shoulder to shoulder ” schtick of Blair.

      That said, Craig’s dissection of the ICC sophistry is worthwhile, and well done.

      Is there any international organisation left that doesn’t reek of corruption?

    • giyane

      Fwl

      I don’t know about the rotting of fish, but I totally agree with you that Blair and whoever was above Blair is the real reason that the ICC has decided not to investigate any further in this case. 100 years ago Churchill realised that Petrol was the lifeblood of future economies and that Iraq had vast reserves of oil. The statue of Churchill in Parliament Square ought to have a permanent memorial flame in its hollow bronze carcase to remind the world why Britain started the illegal 2003 invasion of Iraq.

      It is absurd to expect military Generals who follow the instructions of politicians to sacrifice their men for doing war. War is war. In Syria in our times the genuine intention of Islamists to overthrow a dictator has caused an entire country to be homeless, jobless, lawless. But the politics of the Great Game incurred the anger of Russia. What was promised as a quick brutal surgical strike became a 10 year saga. War is war and military men have enough intelligence and humanity not to sacrifice their soldiers to save the skins of the politicians who ordered the war to happen. If they did that, not only would they be disobeyed , but also they would be exterminated by their own troops.

      Speaking as a man who has done nothing at all of any consequence, and yet who has been allocated a personal spy to monitor my internet activity, I am fully aware that politicians like Blair have no life of their own and are constantly offerred honey traps of sex and money into which they will like wasps into jamjars eventually drop. Such is human, and wasp, nature. After that they are totally owned by the deep state. and the deep state, like the generals and their troops , are not going to sacrifice their political automata for prosecution.

      What is truly remarkable, and I have been gobsmacked by it for 15 years, is that Craig Murray , cosily installed in the highest echelons of government, was the wasp that climbed out of the jamjar, and for 15 years has evaded the wrath of the PTB, possibly because they are in total awe of what he did in challenging the British use of Rendition, Torture and Brainwashing, three of the worst crimes against humanity that war criminals like Churchill , Cameron and Blair commit. Even the ICC is impotent. They are leased finance by the superpowers so that the second they rebel, they will be wrapped up and replaced by more compliant others.

      In my belief, those who have power will have to give an account of themselves on the day of judgement. There is no avoidance of personal responsibility for one sausage of their actions. And that is why the genocides that those politicians commit, to steal oil, to make their countries rich at the expense of others, will deserve the punishment of the Fire. Especially when the countries they have raped, are countries where faith is upheld. It is the combination of Zionist hatred of Islam, British colonial expertise, and US ambition for hegemony, that has caused these atrocities to happen. These countries should be the targets for our anger. USUKIS.

    • Mary

      ‘The ICC is financed by contributions from the states parties. The amount payable by each state party is determined using the same method as the United Nations: each state’s contribution is based on the country’s capacity to pay, which reflects factors such as a national income and population. The maximum amount a single country can pay in any year is limited to 22% of the Court’s budget; Japan paid this amount in 2008.

      The Court spent €80.5 million in 2007. The Assembly of States Parties approved a budget of €90.4 million for 2008, €101.2 million for 2009 and €141.6 million for 2017. As of April 2017, the ICC’s staff consisted of 800 persons from approximately 100 states.’

      https://en.wikipedia.org/wiki/International_Criminal_Court

  • Tom Welsh

    The “Principle of Complementarity” gives the game away. How can the ICC possibly justify refusal to investigate and prosecure crimes on the grounds that the government of some nation is doing so, when it is precisely that government that is the greatest criminal offender?

    The UK government, and nobody else, is squarely and wholly responsible for the launching of a forbidden war of unprovoked aggression, the ultimate international crime. That war can be shown to have led to the deaths of over 1 million Iraqis, and it is utterly absurd to investigate or bring charges against individual soldiers when the responsibility for the whole ghastly genocide lies solely with HMG. (And of course with Washington, the genocide’s prime mover).

    • Squeeth

      It isn’t absurd, the fourth Nuremberg Principle denies individuals the defence of Befehl ist Befehl. Both should be prosecuted.

  • John Monro

    Thank you, Craig, you have not been idle during the three weeks of waiting for the Brexit agreement that you predicted, about which you were right. Having said that, does it really matter? The Brexiters have won, the extreme right wingers of the Tories have won and they are in power for another four and a bit years. It won’t be long before the continued privatisation of the NHS continues apace, that feedlots become an established part of US style industrialised agriculture, presumably to make up for all the valuable farmland to paved over with ever more outmoded and ugly suburban developments, and before “free ports” are set up so as to disunite the country even further as one part of the population competes with others for the privilege of working the longest hours for the least amount of money, while the bosses repatriate their profits to some offshore tax haven. In the meantime, Labour fall apart, and unless the voting system is changed, which will never happen under any Tory government, there is no prospect of any change perhaps for decades to come.

    In regard to you posting about the ICC, you have obviously worked very hard at this, so thanks again. But don’t forget that the ICC is not recognised by the world’s most aggressive nation, the USA, so it would never have been relevant in a world where this failing, flailing empire still thinks it rules. The UK escapes the ICC by humbug and moral abrogation, the USA doesn’t even have to bother. The world is truly getting to be a nastier and more corrupt place and, as pebbles on the shore, the bulk of humanity will be worn down in to impotent subservience to the tides of history. Even a total collapse of our present economic system won’t help us, the only thing that will rise from the detritus of that will be something even more unpleasant and corrupt. Was it ever anything different?

    • FlakBlag

      The birthing of a new world is a time of opportunity, a time when surrender to fatalism isn’t helpful. We can all be laying the groundwork for a humane society now, by building community, organizing in the undergrowth, speaking truth. If you want the next world to be something other than hell then give your time to creating local food networks, seed-banks, tool-libraries, skill-exchanges, nascent militia. Build benign alternatives to what is currently provided by evil empire and there is a chance that good will prevail when it’s sclerotic corpse falls.

      Granted, the world today has emerged from innate human nature, that we can’t escape, but we are angels at least as much as we are devils. There is hope, we get to choose our own actions. It is only when the angels among us choose despondency that we are doomed.

      • John Monro

        It’s true – fatalism and pessimism have rather overwhelmed me in recent years. Unfortunately for your thesis I don’t think there’s any debate – “things” are getting worse in so many important ways, and if we are to climb out of the entropic hole we’re digging ourselves, we’ve left it very late indeed. I am in the middle of reading David Attenborough’s book “A Life on Our Planet” which paints a depressing picture in its first half, but tries to suggest something better in the second, I look forward to reading this part. There are so many converging crises – economically, politically, epidemiologically and environmentally, and perhaps most importantly, morally. I imagine there were Romans like you cheering up those despondent about the way “things” were even while the Empire was in serious decline and the barbarians were at the gates, or perhaps the worried citizen of Dresden in 1939 similarly being reassured by fellow citizens like you!! Bad things happen. I see no collective will in the majority of the population that will allow the necessary urgent changes to our lives that will save us from major social mayhem. “We” still vote for rogues, and even when we don’t, “we” still vote for as much of the status-quo as we can – we will not change until it is too late. And it’s already “too late”, you should remind yourself on Martin Luther King’s speech about being “too late”, perhaps. Take global warming. The land temperature is already 2 deg higher than in pre-industrial times (planetary temperature is a 1 deg rise, true, but this includes the oceans, and not many people live on the oceans – scientists are unfortunately guilty of minimising the risk to human populations) so the 1.5 deg C rise that Paris aims for is a con, it’s far, far too late to limit warming to this level – James Hansen said years ago, we can’t “afford” to go over 350ppm – we’re now approaching 420ppm, a full 50% rise over pre-industrial levels. . So I do despair, but life goes on, and we will have to deal with whatever comes our way. It was always so. Cheers, and a Happy New Year to all of Craig’s followers.

    • Squeeth

      “The world is truly getting to be a nastier and more corrupt place”, no the world of the southern hemisphere for five centuries has been migrating northwards. The practices of imperial and colonial exploitation always creep back to the metropole.

  • DiggerUK

    True to tried and trusted practice, in eighty or a hundred years, a UK apology will be made to the citizens of Iraq for the ‘misinterpretation of security intelligence which the UK now accepts was inaccurate’……..Amen…_

  • Andrew+Nichols

    What’s really astonishing is that you’re disillusioned at all by the ICC. From the moment it was established by criminal wideboys of the R2P cabal, it was clear what this wretched body was all about. A place where the bug, usually white and western war criminals could send all the little, usually nonwhite/non-western war criminals. The most revealing aspect of its founding is the exposure of Nuremberg as Victors justice.

  • Stephen C

    Thanks for reporting on this. It is another example of those in power influencing the supposed independent bodies. It keeps on re-enforcing the fact that they can continue to behave as they want and wont be held to account.

  • Marc

    Thank you for the post, interesting and thought-provoking as always. I do feel sick too, but not that surprised unfortunately.
    This comes for me just one day after reading Dan Glazebrook’s article on CounterPunch, talking about the tragedy of (the end of) Corbynism.
    https://www.counterpunch.org/2020/12/27/the-tragedy-of-corbynism-a-postmortem/
    Nothing to do with the ICC and not much with the Iraq war either, but this considers the UK with its imperialist-style foreign interventions that are still very much on the agenda today, and supported by both labour and tory members overall.
    Your ICC post, on top of these considerations, don’t make me overly optimistic about peace and justice on the planet!
    Best wishes everyone.

  • mark golding

    The crimes by UK ‘working level soldiers’ have only been moderately exposed in it’s treatment of Iraqi prisoners. Litlle is known of UK involvement in the Iraq ‘Salvador option’ where ‘death squads’ murdered civilians including women and children.

    The ‘Salvador Option’ was brought to Iraq by retired US Colonel Jim Steele who had helped develop the death squad program in El Salvador in the 1980’s and continued in Vietnam as part of the CIA’s infamous Phoenix Program through which around 20,000 Vietnamese were assassinated.

    The ICC needs to look hard at the atrocious, heinous and barbaric way UK/US assassins butchered Iraqi families during the opening shots that became an illegal war.

    Bastards!

    • mark golding

      From intelligence and treason certain Iraq commanders were identified and their families… Imagine, tes, Imagine your family, your bairns, your loved ones were zeroed on by death. You would bow, break down and capitulate. That is the truth of psychological, subjective and emotional conflict. At one end of a darstardly spectrum is lock-down the other end extermination, torture, slaughter and massacre.

  • M.J.

    “The sole difficulty here is the prosecutors’ and investigators’ unwillingness to use the toolbox regularly used against gangs or organised crime, against self-protecting groups of soldier war criminals. The criminals are indeed being shielded.”

    Perhaps this is near the heart of what needs action. If the same standards of justice should be applied to crimes by soldiers then appropriate reform of the UK military police or justice systems may be in order. The question is how to do it. Which MPs or political parties might be willing to take this issue seriously? Is there any campaign for writing letters to MPs (though in my experience my own MP consistently ignores messages, which his predecessors did not).

  • Ingwe

    “Do I feel a little sick?” No, the nausea passed long ago and I’m pleased that you finally got it. That the ICC is not and has not ever been about justice. Has it really taken you so long to see this? All those African and Balkan leaders “convicted” and the USA not even under the jurisdiction. Did you really believe that any of the culpable UK bastards involved in an illegal war of aggression were going to face anything in front of the ICC? Jeez, the naïveté.

  • James Cook

    Like history books, laws and justice is determined by the victors – which currently remains with the western alliance.

    Honestly now – how would it look if the ICC were to investigate the western invasion of Iraq?
    Too many would be questioning the Emperors Iraqi clothes, no?

    Be patient, but be careful what you wish for, as I am sure things have a different set of rules when the emerging eastern axis takes over global leadership.

  • FlakBlag

    Looking for Justice in a court of law is like looking for Love in a whorehouse: you might find it there, but that’s really not what the institution is for.

    I don’t mean to be flippant, only cynical, which is a word that in this day and age means something like “realistic”. This is a grave matter, my deepest sympathies to all those who suffered and continue to suffer from these and other similar evils. Regardless of the ICC verdict, thinking humans with good hearts the world over have already judged the perpetrators and found them monstrous.

    • Tom Welsh

      “Looking for Justice in a court of law is like looking for Love in a whorehouse: you might find it there, but that’s really not what the institution is for”.

      Fine analogy, FlakBlag. I’ll remember that.

  • Jerry Alatalo

    For the purpose of getting straight to the essential relevant point we ask the following question: “Here on planet Earth nearing the year 2021, on what legal institution can humanity place its full confidence with to prosecute war criminals – war criminals both petty and great?”

    It’s a serious question…

  • Jay

    “While this decision might be met with dismay by some stakeholders, while viewed as an endorsement of the UK’s approach by others, the reasons set out in this report should temper both extremes.”

    So you are officially an extremist by ICC terms..Fair game to be treated like an Iraqi resistor…. Be careful.

    • Stevie Boy

      I think you mean Iraqi insurgent ?
      As pointed out ‘anyone’ who resists the onslaughts of the USA and it’s proxies is an insurgent.

  • DeQuincey

    Now that the ICC has passed on Ol’ Blighty, I imagine Australia will sieze on the precedent for the current crop of charges against its troops in Afghanistan, let alone pursuing its war criminals (including a former PM, the Queens representative and a couple of sitting parliamentarians) for their hands stained with Iraqi blood.

  • Jimmeh

    Hey, Craig, don’t worry about the gap in your output. I don’t think your subscribers view you as some kind of employee, on 5 days a week, 9-5. And I for one am not interested in the inane daily scribblings of the journalists of the corporate media.

    Having said that, I’ve been dropping in on your blog daily, and I’m certainly glad you’re back at the keyboard!

    Pay no attention to the width, feel the quality.

  • Pyewacket

    I recently read an article that described how the Officer appointed as SIO of the SIB at the time of the Iraq invasion was woefully inexperienced to take on the task in hand. The female Officer, holding a Captain’s rank, had only been out of college a couple of years, and only ever acted as an observer on secondments. She had never any experience of undertaking SIB work in an active war zone. Further, it appears others, of higher rank and relevant experience were overlooked. A rank of Major was quoted as the usual essential criteria to act as an SIO. As a result, the young Officer found herself completely out of her depth, both in terms of managing what was becoming a huge caseload, and all that entails in conducting criminal investigations, also her lack of adequate rank, gave her no traction with senior officers, busily conducting a war. The decision to appoint this Officer into an SIO post at the outset, suggests to me, malign intent rather than some kind of institutional oversight. She was set up to fail, deliberately so, the waters were muddied right from the off.

  • SA

    Brilliant Investigation and argument based on the very internal documentation of the ICC and British Government reports. But this has now become the norm. There are no longer respected international bodies. The case of the OPCW and its reports and suppression of the work of its investigators on the ground is another one and so also is the EHRC report on the Labour party. The danger is that not only is the truth stifled but history is being falsified.

    • Left Patriot

      “The danger is that not only is the truth stifled but history is being falsified.”

      Very underrated post!
      All throughout 2020 ‘The International Ministry of Truth’ has demonstrated its capability of ‘memory-holing’ facts, events, even people and science, in real time. Humanity finds itself l(i)ed into a blind alley.

  • Jimmeh

    The doctrine of Joint Enterprise is a regrettable export of common law from the UK courts to other jurisdictions. For a person to be convicted and punished for an offence they did not commit is obviously a miscarriage of justice.

    While it’s entirely reasonable to criticise the ICC for their failure to prosecute, dragging Joint Enterprise into the criticism weakens the argument.

    Hundreds of British soldiers must have commited war crimes in Iraq, even if you set aside the fact that the entire war was illegal. It’s really, really hard to have a war with no war crimes. Even with an ICC that was scrupulously fair and above reproach, there’s no way they were going to charge hundreds of soldiers. The usual routine is either that a national leader is selected for prosecution; or a handful of lower-level cases are prosecuted, “pour encourager les autres”. The ICC didn’t need to rely on Joint Enterprise to win enough cases to make an example.

    Anecdote: I once got off a charge of speeding. In court I was represented by a bar student (a stunningly beautiful woman, I might add), that I met just minutes before the case started. She was standing-in for the solicitor I had consulted, who was indisposed. She checked the text of the RTA, and told the madge that I’d been charged under a section of the RTA that only applies on motorways; the section of road I was travelling on was a motorway, but had a lane coned off and was under temporary speed restrictions, and so I should have been charged under a section that applied to ordinary roads. She said: “Sir, I beg to suggest, Sir, that it would be quite wrong, Sir, for my client to be convicted of an offence he did not commit, Sir.” The prosecutor, an ordinary cop with all of that day’s cases on his docket, had no answer, and couldn’t bring a new charge without consulting the CPS. So he dropped the charge, and I walked (and kept my licence – the reason I bothered to appear, because I already had points).

    Nobody should ever be punished for an offence that can’t be proved against them. I have no problem with the ICC declining to rely on Joint Enterprise to build their case. Joint Enterprise is bad law.

  • Stevie Boy

    There’s only one Craig Murray, you’re unique, so please take care of your personal health as a number one priority. We always appreciate your insights and views regardless of how long it takes to produce them. And there are some big fights on the horizon we all need to prepare for.

    ps. given your background I’m amazed at your apparent naivety, or is it misplaced trust, as regards the duplicitous nature of these big organisations like the ICC, NATO, WHO, OPCW, IMF, etc. etc. Maybe you’re one of those rare souls who try to always see the best in people, something I gave up long ago …

    Take care.

  • James Lynch

    Craig, you dont need to justify your output, it’s considersble.
    Anyone reading your latest post can easily imagine the amount of time you are reading/researching and drafting.
    A full time job should not exclude everything else in life.
    Thankyou for what you do. Happy new year.

  • Stevie Boy

    A really good overview of events as they unfolded and what happened on the ground can be found in Robert Fisk’s: “The Great War for Civilisation: The Conquest of the Middle East”.
    I also recommend Miles Goslett’s book: “An Inconvenient Death: How the Establishment Covered Up the David Kelly Affair”.
    It wont make you feel any better but it illustrates the nature of the beast we call democracy.

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