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The ICC prosecutor's decision not to open a full investigation of alleged British abuses in Iraq (dating from the aftermath of the US-led invasion) is an important one.
The first ICC prosecutor made a similar decision not to pursue a full investigation back in 2006. But the prosecutor's office reopened an examination in 2014 in light of new evidence presented to it.
There is a major difference between the 2006 and 2020 decisions in terms of rationale however. The first prosecutor decided that the allegations of abuse and torture were too limited in number to cross the "gravity threshold."
The 2020 decision explicitly states that the alleged crimes <were> grave enough for the court's attention. It instead relies on the UK efforts to investigate what happened in Iraq as the basis for not proceeding with a full investigation.
The prosecutor is hardly effusive about those efforts and notes that they did not result in any criminal prosecutions. But she did decide that British investigative efforts were at least genuine and did not amount to an effort to "shield" alleged perpetrators.
For those interested in the geopolitics of the court, this decision will immediately be scrutinized for signals about what it means for the controversial investigation in Afghanistan (which includes US personnel) and the potential investigation in Palestine.
My first reaction would be that the prosecutor's general approach here to complementarity is probably helpful for Israel as regards the allegations on Gaza, given the mechanisms Israel has for investigating allegations against its own forces.
Given the UK mechanisms, the prosecutor's office here did not find the absence of criminal prosecutions to be decisive, and Israel may benefit as well from evidence that it at least has a process in place for investigating its own.
Of course that deference to domestic accountability processes will only help Israel with regard to certain crimes (mostly those alleged in and around Gaza). With respect to West Bank settlements, Israel has no real complementarity defense.
As regards the US in Afghanistan, I don't think Washington gets much solace from this decision. At a superficial level, it's tempting to see the accusations against the UK in Iraq and those against the US in Afghanistan as similar.
But there's a critical difference in terms of how the prosecutor's office sees those sets of allegations: the prosecutor does not believe that there was a British "plan or policy" of torture and interrogation abuses in Iraq.
By contrast, the prosecutor has argued that just such a plan or policy existed for the US in Afghanistan. As the prosecutor's office wrote, "such interrogation techniques were designed and implemented as part of a policy to obtain actionable intelligence."
So the United States faces a very different and more daunting complementarity challenge than the British. The US would likely have to show that it genuinely investigated the architects of its "plan or policy."
