Clarifying the role of ICC complementarity in the context of the UK Overseas Operations Bill

The following Essay has been contributed by Brian L. Cox, Adjunct Professor of Law, Cornell Law School, Visiting scholar at Queen’s Law, and retired Judge advocate, U.S. Army.

As the contentious UK Overseas Operations (Service Personnel and Veterans) Bill approaches the 3rd reading in the House of Lords, one particular issue that has plagued the Bill and sown confusion in the debate from the very beginning is what effect the so-called prosecution ‘triple lock’ might have in terms of UK international law obligations pursuant to the Rome Statute. At the heart of the matter is the provision that would implement a ‘presumption against prosecution’ following the ‘period of 5 years beginning with the day on which the alleged conduct took place has expired.’

For proponents, this is a necessary step that would protect service personnel from being subjected “to what can often seem an unending cycle of investigation and re-investigation” that “risks undermining morale within the Armed Forces and trust in the rule of law.” For critics of the Bill, the presumption against prosecution “undermines the absolute and non-derogable nature of the prohibition of torture and violates human rights law, as well as international criminal and humanitarian law.”

It is certainly reasonable for informed perspectives to disagree on the merits of the Bill and the attendant presumption against prosecution that would begin 5 years from the date of the alleged offense. While I have my own (generally supportive) views of the Bill, the goal of this post is not to express an opinion in favor of or against the pending legislation. My intent here is rather more modest in scope – but the matter at hand may well help the Lords make an informed decision in the weeks ahead and, if adopted, help inform the implementation of the OO Bill.

Giving Shape to the Complementarity Concerns Associated with the Overseas Operations Bill

A central aspect of the concern that has been expressed to date in relation to the presumption against prosecution (after 5 years) is the potential that the “triple lock” may subject British service members to prosecution before the International Criminal Court. This concern could be realized, for example, if the tribunal determines in a particular case that the UK is not fulfilling its domestic obligation to investigate or prosecute allegations of offenses established in Article 5 of the Rome Statute. 

The confusion that exists in relation complementarity was demonstrated, by way of illustration, fairly early on during debate in the Commons when MP Emma Lewell-Buck, who is generally critical of the Bill, asked solicitor Hilary Meredith whether she expects “more prosecutions of UK armed forces personnel and veterans in the International Criminal Court.” And the response from the expert witness? “I do not actually know.”

Based on the nature of the debate that has occurred to date, it seems fair to conclude that no one involved really knows what impact the Bill might have in terms of ICC complementarity. Though the issue of complementarity featured prominently right across the debate that accompanied the second reading of the OO Bill in the HoL, Lord Houghton of Richmond summarized the concern well when he cautioned against “the unquantifiable risk that our people will be brought before the International Criminal Court rather than our own national ones.” (col 1209)

Part of the reason the apparent risk that UK service members are ostensibly “more likely to be hauled before the International Criminal Court” (col 1198) appears so unquantifiable to date is that prevailing perspectives are founded upon only a partial grasp of the relevant text of the Rome Statute. Sticking with the Lords debate that accompanied the second reading of the bill, several MPs articulated the basic complementarity formulation reflected in the Rome Statute: that is, that the ICC may assume jurisdiction if the relevant state party is found to be unwilling or unable to investigate or prosecute an alleged offense. (for example, see cols. 1208, 1223, and 1255)

While this understanding of the complementarity arrangement reflected in the Rome Statute is not incorrect, it does reflect a fairly limited interpretation that excludes a significant degree of important detail that could lend an appreciable degree of clarity to what appears at the moment to be an “unquantifiable risk.” To bring improved clarity to the debate, there is no substitute for the plain text of the Rome Statute.

Relevant Complementarity Principles Reflected in the Text of the Rome Statute

The journey through the text of the Rome Statute begins with Article 17 of the treaty. The foundation of the complementarity principle, which already features prominently in debate involving the OO Bill, establishes that the ICC is to determine that a case is inadmissible if it is “being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.” 

To streamline the analysis, let’s dispense with the “unable” prong of “unwilling or unable” in the context of the UK. The latter aspect is an important component of the complementarity principle, but it is not particularly relevant here. Even if the “triple lock” were implemented pursuant to an adopted OO Bill, there is no suggestion that the UK would be rendered unable to investigate or prosecute alleged offenses. To support such a finding, the Court would have to consider whether the circumstances suggest that the UK is experiencing a “total or substantial collapse or unavailability of its national judicial system.” (Article 17(3)). If that condition should ever come to fruition, the triple lock that is currently reflected in the OO Bill may well be the least of the worries among UK parliamentarians.

To streamline the assessment even further, let’s also assume if a criminal case were initiated that the proceeding itself would qualify as independent and impartial with “an intent to bring the person concerned to justice.” (Article 17(2)). Whether a judicial process qualifies as independent and impartial involves a separate conversation than whether it was improper to refrain from initiating a proceeding at the outset. This latter concern is of interest in evaluating the potential effect of the so-called triple lock, so it is appropriate to set aside any potential concerns regarding the independence and impartiality of the UK justice system writ large for present purposes.

With these important but marginal (for present purposes) aspects set aside, the endeavor to evaluate the potential effect of the presumption against prosecution that would take effect 5 years after the alleged offense was committed can focus on a combination of Article 17(1)(b) and 17(2)(a) of the Rome Statute. The first provision of these two directs the Court to determine that a case is inadmissible if it “has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute.” (emphasis added)

This provision involving the decision to decline prosecution subsequent to a national investigation directs us to Article 17(2), which establishes the factors the Court would consider in order to “determine unwillingness in a particular case.” (emphasis added) The relevant factor for present purposes, then, is Article 17(2)(a), which directs the Court to consider whether the national proceedings “were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court.” (emphasis added)

Examining Sources to Assist with Interpreting Text of Article 17 of Rome Statute

With that, the trail through the relevant text related to the complementarity principle established in the Rome Statute comes to an end. That is, there is no amplifying guidance in the text to determine how to interpret the “purpose of shielding” factor. However, there are any number of references that exist beyond the four corners of the treaty that can provide useful context for how to define “shielding” in relation to Article 17 of the Rome Statute.

One such perspective that is useful in interpreting the nature of the concern the “purpose of shielding” provision is intended to allay was expressed by the New Zealand delegation to the Rome Conference in 1998 while deliberating the jurisdiction of what would become the ICC. The summary of the remarks provided by the New Zealand delegation that is provided in the official records of the Rome Conference indicates that the concern expressed at the time was that relying on national consent of states party alone “might create a problem by enabling a State whose national had committed serious crimes in another State to withhold its consent and shield the accused.” 

This would be problematic because such a condition “would not contribute to enhancing peace and security, which was a major reason for creating the Court” in the first instance. While not necessarily controlling, these remarks do provide useful insight regarding how to interpret the “purpose of shielding” provision that is now captured in Article 17(2)(a) of the Rome Statute. 

Lest the prospect of the ICC exercising jurisdiction pursuant to a permissive interpretation of a member state’s “unwillingness” to genuinely investigate or prosecute seems conceivable, another perspective expressed during deliberations at the Rome Conference is appropriate to consider. As U.S. delegate Bill Richardson observed, the representatives were “not here to create a Court that exists to sit in judgement on national systems or second-guess each action and intervene if it disagrees.” For the complementarity principle to be implemented in a manner that is consistent with the intent of the delegates who negotiated the text of the Rome Statute, the tribunal is required to adopt an inherently restrictive interpretation of “shielding” – lest the jurisdiction of the ICC be employed simply as a tool to “second-guess each action” of a national proceeding.

This considerably high bar for interpreting the text of Article 17 is consistent with the reasoning provided in the Final Report recently published by the ICC Office of the Prosecutor (OTP) while announcing the decision to close the ICC preliminary inquiry involving the conduct of British troops in Iraq.

Following an exhaustive evaluation of UK investigative endeavors to date, the OTP report expressed concern that the “lengthy domestic process, spanning more than ten years and involving the examination of thousands of allegations, has resulted in not one single case being submitted for prosecution: a result that has deprived victims of justice.” Notwithstanding a litany of concerns expressed in the report regarding the domestic investigative process, the OTP determined that it “cannot conclude on the basis of the information before it that there was an intent by the UK authorities to shield persons from criminal responsibility, within the meaning of article 17(2)” of the Rome Statute.

This journey through the text of the Rome Statute and some illustrative subsidiary sources provides useful context for how to properly interpret the relevant provision of the treaty that could allow the ICC to assume jurisdiction over a current or former UK service member following a domestic decision to decline prosecution. The remaining task of the present endeavor is to return to the text of the draft Overseas Operations Bill to evaluate whether the presumption against prosecution (after 5 years) truly would make it more likely that UK service members could “be hauled before the International Criminal Court.”

Applying the Rome Statute Complementarity Principle to the Overseas Operations Bill

If the justifications for the so-called triple lock are taken seriously, and if the presumption against prosecution is implemented just as seriously, the risk that the ICC would actually be able to exercise jurisdiction over a UK service member is decidedly low. For example, the specific “matters to be given particular weight” to be considered in determining whether to proceed with a criminal case notwithstanding the presumption against prosecution that are established in Section 3 of the current draft of the Bill indicate that such a declination decision would not be made for the “purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court” if the relevant prosecutor faithfully applied the statutory text.

Instead, Parliament is expressing specific guidance, in statutory form, for “a relevant prosecutor” to consider the “adverse effect (or likely adverse effect) on the” service member and the “conditions the person was exposed to during deployment on the operations” before deciding to initiate a criminal proceeding 5 years after the date of the alleged offense. In expressing this guidance, the Bill further provides useful factors to consider when evaluating the potential adverse effect on the relevant service member(s). Although reasonable perspectives certainly can (and do) disagree on the advisability of the presumption against prosecution, it is unrealistic to assert that a declination decision based on these factors could be determined instead to be a duplicitous ploy to shield a UK veteran or service member from prosecution before the ICC.

As long as the UK remains genuinely committed to investigating allegations and a decision to decline prosecution after 5 years were based on the factors established in the current draft of the OO Bill, there is almost no chance that the ICC could assume jurisdiction of a case against a UK service member. If the ICC Prosecutor takes the text of the Rome Statute seriously, the factors involving admissibility reflected in Article 17 and examined above must be considered “in deciding whether to initiate an investigation.” (Article 53) 

Likewise, even if a proceeding were initiated at The Hague, the UK could submit an Article 19 filing challenging the proposed jurisdiction and making the case that the declination decision was not made “for the purpose of shielding” the accused service member from prosecution before the ICC. In the meantime, Section 5 of the UK ICC Act would permit a domestic court to “adjourn the proceedings [involving a delivery order] pending the outcome of any challenge before the ICC to the admissibility of the case or to the jurisdiction of the ICC.” 

Although the recent decision by the ICC OTP to close the preliminary inquiry involving the conduct of British troops in Iraq has been criticized in public discourse because the termination was based on an assessment of evidence the Prosecutor “could rely upon in court,” this justification is reasonable and fairly predictable based on the limited prosecutorial resources available to the Court. While it is true that the text of the Rome Statute does not require the Prosecutor to evaluate an ostensive domestic “unwillingness” based on evidence that could be relied upon in court, as a practical reality the Prosecutor would need to present sufficient evidence to establish “shielding” if the UK were to challenge an attempt by the ICC to exercise jurisdiction.

As long as the factors established in Section 3 of the Overseas Operations Bill were scrupulously observed, there is every reason to believe that the assigned Pre-Trial Chamber at the ICC would determine the case to be inadmissible because the domestic declination decision was not undertaken “for the purposes of shielding” the Accused from ICC jurisdiction. As the recent termination decision by the ICC OTP confirms, “shielding” is a very limited and specific intent – and the statutory guidance reflected in Section 3 of the draft Overseas Operations Bill actually makes it less likely that a domestic declination decision would be, or could be found to be, for the specific purpose of shielding.

The Way Ahead – for the Bill and in the Broader Context

While any number of legitimate concerns have been expressed regarding the potential adoption of the Overseas Operations Bill, fears that the legislation will bring an “unquantifiable risk” that UK service members would be “more likely to be hauled before the International Criminal Court” are tenuous at best. The risk space can be quantified as the sum total of the likelihood that a declination decision formed subsequent to scrupulous adherence to the factors established in Section 3 of the Overseas Operations Bill would be found by the ICC, pursuant to Article 17 of the Rome Statute, to instead be for the purpose of shielding the Accused from being tried before the tribunal and that a hearing convened pursuant to Article 19 of the Rome Statute in which the UK government challenges the exercise of jurisdiction by the ICC is unsuccessful.

If that risk space appears infinitesimal to the reader, that would be my assessment, too. By lending statutory guidance regarding the appropriate issues to consider in future prosecutorial decisions, if anything implementation of the factors established in Section 3 of the OO Bill actually makes it less likely that the ICC could assume jurisdiction on a case for which the domestic prosecutor declined to initiate prosecution. That is, by presenting the appropriate factors in the text of the statute, it would then be less likely that a domestic declination decision would be – or would be perceived to be – for the purpose of shielding a current or former UK service member from prosecution before the ICC.

Regardless of one’s perspective, the risk is most assuredly not unquantifiable. The endeavor to quantify that risk must be grounded in a more complete application of the text of the Rome Statute than has been accomplished in the UK Parliament to date.

As the parliamentary debate wraps up, terminology such as “quasi-statute of limitations” that has been utilized to describe the presumption against prosecution must be tossed in the bin. Such a characterization is suitable in the context of public advocacy, but from a purely legal perspective there is no such thing.

Either a statute places a legislative limit on the government’s ability to bring a case after a certain period of time, or it doesn’t. If it does not, it is not a statute of limitations. The presumption against prosecution, based on the factors established in Section 3 of the current draft of the OO Bill, is not a statute of limitations. 

It would not be treated as such if the complementarity principle established (primarily) in Article 17 of the Rome Statute were scrupulously applied. The contemplated presumption against prosecution, then, should not be treated as a “quasi” statute of limitations during parliamentary debates, either. Adopting this characterization, which originated in the forum of public advocacy, into official discourse has generated a significant degree of confusion right through the parliamentary debate. As such, the characterization of the presumption against prosecution as a “quasi-statute of limitations” should be abandoned as the parliamentary debate moves forward.

Analysis of the risk created by the presumption against prosecution is, of course, relevant far beyond the debate that will accompany the report stage and 3rd reading in the Lords. If the Bill is adopted with the presumption, a complete understanding of the complementarity process established in the Rome Statute will better permit the government to implement the legislation while fulfilling its obligations pursuant to international law. 

As other states party to the Rome Statute contemplate compliance with the complementarity principle, the above analysis would be equally applicable beyond the context of the UK and the (currently) draft OO Bill. For the time being, perhaps the analysis presented in this post can help inform the assessment of the risk created by the presumption against prosecution in the Overseas Operations Bill as the debate involving the legislation enters the final stages.