Read on Twitter
After reading the entire 184 OTP report on the UK/Iraq preliminary examination, I am concerned. I say this not to be facetious, even though the OTP repeatedly uses exactly that word (concern) to describe the UK's willingness to prosecute allegations and yet closes the PE sine dia https://twitter.com/pilabuda/status/1336703167917142018
I will probably have to write a blog post to convey why this report is so concerning, but the bottom line is that the OTP's conclusion (it will not be able to substantiate unwillingness) is premature and unsupported by the evidence the report provides.
The report makes out a clear prima facie case of unwillingness on the UK's part. The 'unwillingness' is in your face, on almost every page in parts VIII-XI. The PTC should have decided this on the merits. I don't see why the OTP should resolve this conclusively in a report.
To be clear, I don't doubt the OTP's bona fide in reaching the conclusion that it reached. The report shows how badly the OTP struggled with 'unwillingness'. But, with respect, the Prosecutor has received poor advice and has applied the wrong procedural framework.
Different stakeholders hold different views on the raison d'etre of international criminal law. My view is that ICC's raison d'etre is to challenge states' 'unwillingness', the most contentious aspect of the ICC's relationship to states. To its credit, the OTP confronted the UK
It is simply mindboggling the ICC has taken 17 years to engage the substance of 'unwillingness', the most contentious aspect of complementarity. This alone should give everyone pause for thought. What is going on here? How is it possible the OTP has not had to do this earlier?
The OTP's analysis of 'unwillingness' is problematic on many levels. I am not going to get into this on Twitter. My main concern is that the OTP refuses to submit prima facie evidence of unwillingness to the PTC. Why? Why would we want the OTP to adjudicate unwillingness?
My only hope is that the next Prosecutor will move away from the deeply flawed conception of complementarity and preliminary examinations that have guided the OTP in the last 9 (in fairness 18 years). The Rome Statute does not give the OTP this kind of unfettered power. /end
What I mean by the last tweet is that the Rome Statute must be read to comprise checks and balances. What is going on right now is that the OTP is essentially unaccountable for its deeply contentious decisions on foundational questions of the ICC's relationship to states.
