Alleged British war crimes in Iraq, unwillingness to prosecute and the complementarity principle at the ICC.
This article suggests the UK’s Overseas Operation Bill contributes to evidence that the UK is unwilling to investigate alleged war crimes.
The ICC can investigate and prosecute any persons charged with committing “core”  international crimes” when whose State is party to the Rome Statute (or when a State agrees on an ad-hoc basis). Complementarity is a fundamental principle referring to the court’s complementary relationship to domestic judicial proceedings. A case will only become admissible at the ICC where there is an unwillingness to investigate, in effect, a disingenuous attempt to prosecute domestically.
In December 2017 the OTP reached the conclusion that there is a reasonable basis to believe that members of the UK armed forces committed war crimes against persons in their custody during 2003 – 2009 period of conflict in Iraq. In July 2019, the OTP has received a follow-up communication with a focus on the UK’s unwillingness to investigate crimes at a national level. This communication effectively accuses the UK of being ‘unwilling or unable’ to investigate, paving the way of admissibility under Article 17 of the Statute. If the admissibility requirement is satisfied, all three factors set out in Article 53 would be met, meeting the legal framework that can trigger a preliminary investigation.
For the second time in September, the UK is introducing domestic legislation that threatens to breach international law. The Overseas Operations Bill quietly passed the House of Common’s second reading stage on Wednesday 24 September by 331:77 votes. By design the Bill seeks to introduce a “triple lock” against the prosecution of British soldiers acting overseas. Relevantly, this includes a five-year statute of limitations or “human rights long-stop”.
The 2003 – 2009 allegations of torture, crimes against humanity and unlawful killing are breaches of both International Human Rights Law (ECHR) and International Humanitarian Law (Geneva Conventions). By introducing the Bill, the UK could be attempting to create de facto impunity for the alleged crimes. The UK cannot invoke provisions of the Bill as justification for its failure to perform its international obligations. The proceeding analysis illustrates that this may contribute to the characterisation of the UK being unwilling to domestically prosecute. This could lead to British personnel being tried before the ICC.
Article 17(2) defines three conditions to which a State is considered unwilling; only one has to be met. In summary;
Article 17(2)(a) shielding a person from prosecution.
Article 17(2)(b) an unjustified delay.
Article 17(2)(c) partial and disingenuous intent to bring to justice.
Despite domestic investigations that have been launched (and marred in controversary), they have been ultimately ineffective in securing national prosecutions, and were shut down in 2017. Evidence from BBC Panorama and ECCHR’s submissions to the OTP considers the investigations as disingenuous, falling under Article 17(2)(c). Both have also suggested a practice of shielding under 17(2)(a). Even affording “radical complementarity” to ‘protect its sovereign interests’, it is not clear that the UK is making a genuine effort, in good faith, to bring suspects to justice.
It is assessed here that in its current form the Overseas Operations Bill, which attempts to serve as a bar to domestic proceedings, will actually strengthen the ICC’s unwilling test and increase the likelihood of UK service personnel being tried at the ICC for the alleged crimes.
The Bill comes at a time when the UK is retreating from multilateralism and the rules-based order it helped to create. The allegations come from a War that many regard as illegal. It is undeniable that these socio-political factors will play a role in this unfolding case.
 Article 5 – 8 Rome Statute of the International Criminal Court 
 Article 4(2) Rome Statute of the International Criminal Court 
 Article 17(1)(b) Rome State of the International Criminal Court 
 Article 12(2)(b) Rome Statute of the International Criminal Court 
 OTP of the ICC, Report on Preliminary Examination Activities  at para 203
 ECCHR, War crimes by UK forces in Iraq, Follow-up communication by ECCHR to the OTP of the ICC 
 Article 17(1)(b) Rome Statute of the International Criminal Court 
 Jurisdiction, admissibility, gravity of crime and interests of justice, Article 53(1)(a)-(c) Rome State of the International Criminal Court 
 Ibid 5 para 3
 HC Deb 23 September 2020, Vol 680, col 1052 – 1054
 N Mercer, The UK Government is attempting to bend the rules on torture in “The Guardian” [20 September 2020] <https://www.theguardian.com/commentisfree/2020/sep/20/overseas-operations-bill-uk-government-bend-rules-torture-soldiers> accessed 28/09/2020
 UK MOD, Overseas Operations Bill: ECHR Memorandum by the MOD  at para 28 <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/920358/ECHR_Memo_-_OO_SPV__Bill_-_FINAL.pdf>
 Article 27 Vienna Convention Law of the Treaties 
 Article (17)(2) Rome Statute of the International Criminal Court 
 UK Govt, What is IHAT?  <https://www.gov.uk/government/groups/iraq-historic-allegations-team-ihat> accessed 29/09/2020
 BBC News, Iraq lawyer Phil Shiner struck off over misconduct  <https://www.bbc.co.uk/news/uk-38841544#:~:text=A%20human%20rights%20lawyer%20who%20brought%20abuse%20claims,by%20a%20panel%20of%20the%20Solicitors%20Disciplinary%20Tribunal.> accessed 29/09/2020
 BBC Panorama, War Crimes Scandal Exposed  <https://www.bbc.co.uk/programmes/m000bh87> and ECCHR, The Responsibility of Officials of the UK for War Crimes Involving Systematic Detainee Abuse in Iraq from 2003 – 2008  <https://www.ecchr.eu/fileadmin/Juristische_Dokumente/January_2014_Communication_by_ECCHR_and_PIL_to_ICC_OTP_re_Iraq_UK__public_version_.pdf>
 Ibid 13
 Ibid 16
 Ibid 6 at page 16
 Kevin Jon Heller, Radical Complementarity 
 S.M.H Nouwen, Complementarity in the Line of Fire: The Catalysing Effect of the ICC in Uganda and Sudan  at pg 58
 Article 26 Vienna Convention on the Law of the Treaties