The Impact of the Iraq Communication of the Prosecutor of the International Criminal Court on War Crimes Admissibility and the Interests of Victims

Abstract

This articlediscusses issues arising out of the 2006 communication concerning the situation in Iraq of the Chief Prosecutor of the International Criminal Court (ICC). These issues relate to the broad definition of war crimes, and victims' rights. In February 2006, the Chief Prosecutor of the ICC released a communication concerning the situation in Iraq, which addressed different communications the Prosecutor's Office had receive alleging the commission of crimes with the jurisdiction of the ICC. The communication addressed allegations of genocide, crimes against humanity, and various war crimes. In his communication, the Prosecutor determined there to be “a reasonable basis for an estimated 4 to 12 victims of wilful killing and a limited number of victims of inhuman treatment, totalling in all less than 20 persons”, however declared the instances of these crimes to be inadmissible. The reasoning given was that the low number of victims meant that the crimes did not meet “the required [gravity] threshold of the Statute” as found in Articles 8(1) and 53 of the Rome Statute. The Prosecutor's analysis is not only unjust, but to a certain extent unreasonable. It is unjust for the victims involved, as it denies them the opportunity for the chance to hear the truth and to gain closure. In this sense the decision not to investigate goes against the grain of the support for victims' rights that has been a key aspect in the founding of the ICC. The decision is unreasonable in that it sets particularly high standards for war crimes to be held admissible before the ICC, and steers away from the broad definition of war crimes as developed through the Geneva Conventions and international humanitarian law. Most importantly, these high standards are not compatible with the concept of individual responsibility for war crimes, which is the aim of the ICC. These issues raise many questions, which this presentation broaches. The presentation puts forward some of the practical reasons behind the Prosecutor's decision, and demonstrates how the ensuing questions may create problems in the future for potential cases to be brought before the ICC.