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Paper 14
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Return to contents list of L.I.S.G. Dossier "The Case Against War" APPENDIX PAPER 14 "Our troops alone risk prosecution", Philippe Sands (barrister and Professor of Laws at University College, London), The Guardian, 15 January 2003
Amid the questions on the legality of a war against Iraq - in particular whether another UN security council resolution is needed - one aspect has not attracted much attention: if Britain uses force it would be the first time that the international criminal court could have jurisdiction over British soldiers and their political superiors. But while British citizens could be hauled up before the ICC, the real protagonists - US and Iraqi nationals - cannot be. Britain has been a strong supporter of the ICC. One of the first acts of the Labour government when it came to power in 1997 was to transform the UK's negotiating position on the ICC statute and create a clear separation from a sceptical American delegation. The UK's support was central to the adoption of the statute in July 1998, and its subsequent efforts have contributed to the statute's entry into force in July 2002, far earlier than expected. Next month the ICC's 18 judges and its prosecutor will be elected and the Hague-based court will then begin to function. An independent body, it will increasingly be involved in the resolution of civil strife and international conflicts. But for any war in Iraq its jurisdiction will necessarily be limited. It does not yet have jurisdiction over the illegal use of force and will not do so until 2008 at the earliest, assuming the ICC parties can agree on a definition. So the absence of a UN resolution cannot be challenged before the court. The court does, however, have jurisdiction over the commission of genocide and crimes against humanity and, most importantly, war crimes. And it has jurisdiction - to the highest level - over persons who facilitate the commission of a crime, or aid, abet or assist in a crime. For the ICC to have jurisdiction over these crimes, one of two preconditions must be met: either the act has taken place in the territory of a state which is a party to the statute (in which case the nationality of the defendant is not relevant), or the person accused is a national of a state which is a party to the ICC statute. Since Iraq is not a party to the ICC statute no person - whether Iraqi, British, American or other - can be subject to the court's jurisdiction under the first precondition, namely on the basis only that an alleged crime has taken place in Iraq. However, under the second precondition, the court will potentially be able to exercise jurisdiction in respect of war crimes committed by a national of any of the 87 states which are now parties. That includes the UK (and virtually all other EU members) but not the US or Iraq. The ICC's jurisdiction is complementary to that of national courts. If war crimes are alleged it will be first and foremost for national authorities and courts to investigate and, as appropriate, to prosecute. But if they do not do so, or if they do so inadequately, and there is information on crimes within the jurisdiction of the court, then its prosecutor in the Hague will be responsible for conducting investigations and prosecutions before the court. In some respects the ICC offers nothing new. The definitions of war crimes in the ICC statute - "grave breaches" of the 1949 Geneva conventions or "other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law" - are well established in limiting methods and means of warfare. The UK has long been committed to the enforcement of these obligations. It is plain that the UK's legal advisers have taken an interest in the coming conflict in Iraq. It is probably also safe to assume that the emerging political commitment towards a second UN resolution is motivated in part by a recognition that the information now publicly available cannot justify the use of force, at least on established principles of international law. The ICC may also now attract the attention of political and military strategists, as an independent actor. The prosecutor will not be subject to the control of states or of the security council. This is one of the main reasons why the US has opposed the court. A hint of what may come emerged in the 1999 Kosovo conflict, where Nato acts which many would call war crimes did take place: attacks were directed against civilian targets (such as a TV station), and there were attacks on targets which were undefended and not military objectives. A preliminary investigation of these matters was carried out by the prosecutor of the Yugoslav war crimes tribunal. This did not lead to any prosecutions but it indicated the potential role for independent international criminal investigation. And it put the UK on notice that when considering military action new legal risks must be taken into account, a consideration which will not trouble our American ally.
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