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I've now read the OTP's Report twice, and it makes very little sense. Despite acknowledging a wide range of factors which indicate serious concerns about the willingness of the UK to conduct genuine investigations into alleged war crimes, they have decided not to proceed 1/14 https://twitter.com/IntlCrimCourt/status/1336695203449724928
Amongst OTP's concerns: inability of IHAT/SPLI process to overcome past investigative failures; allegations about politically influenced cover-ups; belief that UK government was hostile to criminal investigative processes; and potential implementation of statute of limitations 2/
There are many other concerns that are raised by the OTP in their report that it isn't possible to list here but anyone should get the point: there is reason to believe that the UK have not conducted genuine investigations. 3/
These concerns were raised at a time when the UK's investigatory process in relation to alleged crimes taking place in Iraq is still ongoing - 74 allegations were still under investigation according to latest SPLI Quarterly Report (from end of June): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/909154/20200708-SPLI_QTR_RPT-1APR20-30JUN20-FINAL.pdf 4/
It has to be questioned why the OTP decided to close the Preliminary Examination (PE) now. The report acknowledged that the PE could be reopened depending on factors such as the impact of the Overseas Operations Bill and if the OTP receives evidence suggesting intent to shield 5/
Surely, it would be better for OTP to have waited to see what the impact of Overseas Operations Bill, which the Report equates to a statute of limitations or amnesty, actually is before it decides fate of the PE? UK government has confirmed Bill could apply to Iraq allegations 6/
See, for example this quote from the Bill Minister, Johnny Mercer, during the Bill's Committee Stage in the House of Commons on 14 October 2020. 7/
Paragraph 477 of the OTP's Report raises doubts about the extent to which the UK will be able to prosecute crimes after the passage of the Overseas Operations Bill, based on info provided by the UK in June 2020 which refused to engage with 'hypothetical' application of Bill. 7/
Based on the information now available, we know that the Bill's 'presumption against prosecution' could apply to alleged war crimes in Iraq, so why hurry to close the PE? Any factor which could lead to reopening of the PE imminently may only serve to damage the ICC. 8/
Surely, to provide some sense of finality for victims so they can know whether there will be ICC intervention (or not), and for States, it would be best if PE closure meant PE closure? Opening PEs again and again serves to make the ICC appear, at best, indecisive. 9/
Plus, the reasons for closing the PE, which seemingly includes taking UK explanations at face value, are at best weak. This hardly outweighs the extent of concerns raised by the OTP, and the finding that there is 'a reasonable basis' to believe that war crimes were committed. 10/
As @kevinjonheller made clear in his @opiniojuris article, there was no need for the OTP to have made a final statement on its findings in relation to complementarity at this stage, as this would have been basis of an Article 18 challenge by the UK: https://opiniojuris.org/2020/12/12/article-18-and-the-iraq-declination/ 11/
Instead, OTP has haphazardly undermined its own findings. This serves to ensure that the ICC is seen as an institution which isn't willing to challenge actions of its most powerful members because, unlike other investigations involving UNSC P5 States, UK has ratified the RS. 12/
By making this decision, the OTP, as @schueller_a states, 'reinforces longstanding double standards in international justice and shows once again that powerful actors can get away with systematic torture.' https://opiniojuris.org/2020/12/11/the-icc-british-war-crimes-in-iraq-and-a-very-british-tradition/ 13/
Whilst this decision may serve to prevent another politically damaging fight between the OTP and a UNSC P5 State, it is also terrible for international criminal justice. The decision does not highlight any reasonable basis to suggest that UK has complied with complementarity. 14/
