Findings and Recommendations
A. Positive Complementarity in Preliminary Examinations
The International Criminal Court (ICC) is a court of last resort.
Under the principle of “complementarity,” the ICC can only take up cases where national authorities—which have the primary responsibility under international law to ensure accountability for atrocity crimes—do not.
In the long-term, bolstering national proceedings is crucial in the fight against impunity for the most serious crimes, and is fundamental to hopes for the ICC’s broad impact. Where states have an interest in avoiding the ICC’s intervention, they can do so by conducting genuine national proceedings. As a result, the Office of the Prosecutor (OTP) can have significant leverage with national authorities in countries where it is considering whether to open an investigation in what are known as “preliminary examinations.”
The OTP has recognized this opportunity. In policy and in practice, the OTP is committed, where feasible, to encouraging national proceedings into crimes falling within the ICC’s jurisdiction in preliminary examinations. This makes the OTP potentially an important actor in what has come to be known as “positive complementarity”—the range of efforts by international partners, international organizations, and civil society groups to assist national authorities to carry out effective prosecutions of international crimes. These efforts include legislative assistance, capacity building, and advocacy and political dialogue to counter obstruction.
While early references to positive complementarity were primarily to the role of the court (see Appendix 1), the term has since evolved, particularly leading up to and after the 2010 ICC review conference in Kampala, Uganda. Momentum has been difficult to sustain since Kampala, but the term has garnered increased recognition and has come to encompass initiatives by a range of actors to encourage national prosecutions of international crimes.
These efforts are needed because domestic prosecutions of international crimes typically face several obstacles. Political will of national authorities to support independent investigations is essential, but is often absent or quixotic given that these prosecutions likely touch on powerful domestic and even international interests that oppose accountability. Prosecutions of mass atrocity crimes also require specialized expertise and support, including witness protection. Countries are often ill-equipped to meet these challenges.
While the OTP’s commitment to positive complementarity in preliminary examinations as part of this broader landscape holds significant potential to meet victims’ rights to justice for human rights crimes and to amplify the impact of the ICC on national justice efforts, it faces significant and steep challenges in seeking to translate its policy commitment into successful practice.
This report explores the extent to which it is realistic for the OTP to be able to deliver on this commitment, and asks whether domestic challenges are too great for the ICC’s commitment to positive complementarity to surmount.
As discussed below, some positive complementarity effects may be triggered simply through the OTP’s engagement with national authorities during the course of conducting its preliminary examinations. To go further, however, the OTP, like other complementarity actors, needs to have strategies to bridge the two pillars of “unwillingness” and “inability.” These include:
- Focusing public debate through media and within civil society on the need for accountability;
- Serving as a source of sustained pressure on domestic authorities to show results in domestic proceedings;
- Highlighting to international partners the importance of including accountability in political dialogue with domestic authorities;
- Equipping human rights activists with information derived from the OTP’s analysis, strengthening advocacy around justice; and
- Identifying weaknesses in domestic proceedings, to prompt increased efforts by government authorities and assistance, where relevant, by international partners.
Many of these are strategies shared with other complementarity actors, but among these actors, the OTP is unique. As indicated above, its leverage with national authorities stems from the fact that, unlike international donors or civil society actors, it has the authority to open an investigation if national authorities fail to act. Under the court’s legal framework, however, the OTP’s jurisdiction can be blocked even by the appearance of national activity, regardless of whether this ultimately matures into effective domestic proceedings.
This unique leverage, therefore, comes with a unique catch: the OTP needs to strike a balance between opening space to national authorities, while it proceeds and is being seen to proceed with a commitment to act if national authorities do not. Where delay in ICC action does not result in genuine national justice, but provides space to national authorities to obstruct ICC action, it undermines the OTP’s influence with national authorities and the OTP risks legitimizing impunity in the view of key partners on complementarity.
B. Evolution in OTP Practice
OTP practice has changed significantly since a 2011 Human Rights Watch report, Course Correction. The report highlighted inconsistent approaches between situations, the rapid announcement of several new preliminary examinations, and a lack of substantive public reporting regarding progress in these examinations to back up initial publicity.
Since that time, the OTP has made several important shifts in its approach to positive complementarity and preliminary examinations. These shifts are discussed in Appendix I. They include a more qualified posture on positive complementarity, seeking to engage national authorities only where relevant domestic proceedings are already underway or where national authorities have explicitly stated their commitment to undertaking such proceedings.
They also include its current practice of delaying specific positive complementarity initiatives until after the OTP is certain that potential cases fall within the ICC’s jurisdiction, bolstering its ability to engage governments in a more concrete manner. The OTP has also been more cautious in the publicity it seeks for its preliminary examinations, while also putting more substantive information about each examination into the public domain through its annual reports. Lastly, it has boosted, albeit in a still-too-limited manner, the number of staff members assigned to carry out preliminary examinations.
C. Key Findings on Colombia, Georgia, Guinea, and the United Kingdom
This report seeks to build on our 2011 report and evaluate the OTP’s impact on national justice through case studies on national proceedings in four countries that are, or were, the subject of OTP preliminary examinations—Colombia, Georgia, Guinea, and the UK. The report spans OTP practice both before and after its consolidation in 2013 of a formal policy on preliminary examinations. It seeks to identify areas where further shifts in practice, particularly in the manner of engagement with national authorities, key strategic allies among international partners and civil society, and media could strengthen OTP impact going forward.
Our research is based on interviews with a range of stakeholders in each country case study including government officials in ministries of foreign affairs, justice, and defense; national investigating and prosecuting authorities; judges; civil society activists; journalists; and representatives of diplomatic missions and United Nations agencies. The four case studies were selected based on Human Rights Watch’s assessment that in each situation, certain prospects for national justice existed or had existed, such that it was reasonable to expect the OTP to have some impact; geographical diversity; existing Human Rights Watch expertise and research in the country; and the feasibility of carrying out research given available resources and staffing.
These four countries fall on a spectrum of OTP engagement with national authorities on domestic justice. Our research suggests that the OTP’s engagement has been most significant in Guinea, followed by Colombia, and far more limited in Georgia. In the UK, the OTP had not deployed a proactive approach to complementarity during the time period covered by our research.
Results to date in national proceedings underscore a key point made above: expectations about the OTP’s influence need to remain realistic. In all four countries, authorities have initiated investigations. Prosecutions, however, have been more limited.
Investigations in Guinea into the September 28, 2009 stadium massacre had yet to lead to trials at time of writing, although in December 2017, following the completion of the investigation, the investigating judges referred the case for trial. Georgian authorities have abandoned their investigations into crimes committed during the 2008 armed conflict with Russia in the South Ossetia region, leading to the opening of an ICC investigation in January 2016. In the UK, where the preliminary examination concerns allegations of abuses committed by the country’s armed forces in Iraq, the creation of a special investigative body to look into allegations, the Iraq Historic Allegations Team (IHAT), now replaced by the Service Police Legacy Investigations (SPLI), has not resulted in any prosecutions. In Colombia, there has been a highly significant number of convictions of individuals accused of “false positive” killings, that is, cases of unlawful killings that military personnel officially reported as lawful killings in combat, but very scarce progress in prosecuting high-ranking officials.
The case studies suggest that it is important not to overstate the prospects for success. Given the many persistent and stubborn obstacles to trying the most serious crimes before national courts, many preliminary examinations will result in the need to open ICC investigations. Objective factors—such as the peace process in Colombia or the cross-border nature of the Georgia-Russia conflict—place significant constraints on what the OTP’s preliminary examinations can achieve when it comes to national justice. Indeed, the OTP has, over time, calibrated its approach to positive complementarity, pursuing this as a strategy only where certain underlying conditions are met.
And yet, in each situation, our research has identified positive steps that are at least partly attributable to the OTP’s engagement.
There has been substantial progress in Guinea, in particular, where the OTP’s engagement has been more intense than in other situations and where over time the OTP as an external point of pressure seems to have contributed to progress by national officials and the engagement of other key international actors on justice.
In Colombia, sources interviewed for this report suggested that the OTP has been one of a number of important actors in keeping the need for accountability in these cases on the agenda. The OTP also worked effectively to counter at least one legislative proposal that might have undermined these prosecutions and was a factor in the development of relevant prosecutorial strategies. The latter was important to addressing a key obstacle to prosecutions. Its engagement has also been a factor in expediting progress in cases against low and mid-level defendants, but has yet to prove effective to address the main obstacle to prosecution of high-level officials: a lack of unequivocal political will to support these prosecutions. Some factors have been beyond the OTP’s control, most significantly, the Havana peace process. However, a more assertive approach toward the government by the OTP, including in the media, and more effective alliances with international partners, might have strengthened its influence.
In Georgia, the OTP’s approach was less interventionist. It engaged extensively with national authorities as part of its assessment of domestic proceedings and to avoid manipulation of the ICC’s mandate, rather than to encourage these proceedings per se. While existence of the preliminary examination and the OTP’s regular engagement with authorities in Georgia appears to have spurred a certain amount of investigative activity, ultimately, this was insufficient to support effective national proceedings, which led to the ICC’s decision to open an investigation. A number of factors limited the OTP’s influence on national accountability efforts, in part because of very limited political will by the government to see national accountability. But strengthened engagement between the OTP and other relevant actors, including media, civil society groups, and international partners may have expedited the OTP’s assessment of its own jurisdiction, leading to an earlier decision to seek to open investigations.
In the UK, the OTP reopened its preliminary examination during a dynamic and charged period concerning the broader allegations of abuse by British forces in Iraq. During the period of our research, the OTP had yet to take a proactive approach to complementarity. Not surprisingly then, and against the broader background of developments around accountability, our research indicates that the ICC’s involvement so far has not per se instigated or influenced national proceedings in significant ways. Instead, to the extent there has been progress in criminal investigations, it is largely attributable to domestic litigation that predated the ICC examination. At the same time, by subjecting existing domestic efforts to another level of scrutiny, the ICC prosecutor’s examination may have discouraged British authorities from discontinuing relevant inquiries into potential abuses by British armed forces in Iraq despite public pressure for them to do so.
The case studies make clear that context will influence the likelihood of successful positive complementarity activities by the OTP. Our research suggests four contextual factors are particularly important.
First, and most significantly, the extent of opposition to accountability by powerful interests in the country will constrain the OTP’s influence. The lack of full political support for accountability—regardless of stated intention by governments—was a constant across these case studies. In the UK, there seems to be general sentiment to see accountability for politicians for their decision to go to war in Iraq and the ensuing aftermath—an issue not within the ICC’s jurisdiction—but not necessarily military officials and rank-and-file soldiers.
But the exact landscape that conditions political will for prosecutions differs. In all four countries, some or all the alleged perpetrators are or were government agents at certain points during the commission of alleged abuses or during the preliminary examination; where governments have changed, new governments have not necessarily considered prosecutions of former government officials to be in their political interest.
The influence of the armed forces in each of these countries has also been significant. In Colombia, the peace process has been a significant factor shaping government responses in ways that have both contributed to justice and detracted from it, while the relationship between Georgia and Russia in the aftermath of the 2008 conflict and the regional security context has affected decisions regarding prosecution across two successive governments there.
Second, where the underlying crime basis is more limited, as in Guinea where allegations relate to a horrific, but time-bound incident, the OTP has been able to identify specific benchmarks with prosecuting authorities, which, in turn, has helped to push forward incremental progress. In Colombia, the OTP has indicated that it is more challenging to use this approach given the broad temporal, geographical, and subject matter scope of the underlying crimes.
Third, where public demand and interest in accountability is high, it opens the possibility for the OTP to amplify the advocacy of key domestic actors, including representatives of civil society, or vice versa, as well as to benefit from the media as a pressure point on governments. In Guinea, victims’ associations have participated as civil parties in the domestic investigations, and exchanges between the OTP and these associations assisted the OTP in assessing progress in national investigations. In Colombia, too, domestic civil society organizations have relied on the OTP’s reporting on the underlying crimes and the status of national proceedings in their own advocacy, and OTP statements garner widespread media coverage. In the UK, hostility to allegations against service members and the lawyers who brought these allegations has created a difficult terrain for accountability.
Fourth, OTP efforts are likely to have more traction where other international partners are also promoting accountability. In Guinea and Colombia, the OTP has been one of several international actors on justice, while in Georgia, we found little evidence that other potential partners, including diplomatic missions, regional organizations, and UN agencies made it a priority to engage domestic authorities on the importance of accountability for relevant cases.
It is unlikely that the OTP, on its own, can fundamentally alter political dynamics. And while it may have more success in influencing other actors beyond the government—among civil society and in the international community—to join its efforts to press governments to make justice a priority, even this effect is uncertain (see discussion of strategic alliances below). This suggests that the OTP’s current approach—to defer to national proceedings where there is at least a stated government intention to proceed, but to carefully calibrate whether and how actively to encourage such proceedings depending on its assessment of the likeliness of genuine proceedings—appropriately recognizes certain inherent limits.
As a result, the OTP’s approach has and is likely to continue to differ from one situation to the next. In one situation, the OTP may prolong its deference to national authorities because it considers genuine proceedings may yet materialize, while in another situation, it may not afford national authorities an equivalent space.
To get this balance right, the OTP’s complementarity strategies need to be rooted in a deep appreciation of context. The OTP should be able to understand the domestic and, where relevant, regional political landscape, and build contacts within government, prosecuting authorities, civil society, and the national and international media. In Guinea, our research suggests that the frequency of visits by the OTP to the country helps to explain how, over a number of years during which investigations were at times stalled, they nonetheless managed the situation in a manner that contributed to incremental progress. Building this deep understanding will take resources—staff resources within the OTP, as well as resources for mission travel.
There is also a credibility risk inherent in inconsistent treatment between situations. Transparency, discussed further below, can help to mitigate these risks.
D. Conclusions and Recommendations
While expectations about the OTP’s influence should be realistic, the four case studies in this report also have lessons for strengthening the OTP’s complementarity specific approaches to increase impact in the future.
1. OTP Should Make More of Its Unique Leverage to Catalyze Political Will
Across the cases studies, the key obstacle to further progress in national prosecutions was an absence of political will by officials to support cases. Where the OTP did engage to address capacity challenges—the development of prosecutorial strategies in Colombia and encouraging assistance from the Team of Experts for Rule of Law/Sexual Violence in Conflict in the UN Office of the Special Representative on Sexual Violence in Conflict in Guinea—it was successful.
This suggests that the OTP can be well-positioned to broker assistance, but that catalyzing political will is likely to be a more significant part of its strategies to encourage national proceedings.
When it comes to catalyzing political will, the OTP’s leverage with national authorities appeared to depend on the level of concern these authorities had regarding the prospect of an ICC investigation. The OTP appears to have had its greatest influence in Guinea, where interviewees indicated that the president was concerned that the country be seen as capable of conducting investigations, both as part of its transition from an autocratic to a democratic government and against the backdrop of strong criticism regarding the ICC from some African leaders, particularly in eastern Africa.
In comparison, in Colombia, Georgia, and the UK, interviewees indicated only a limited concern on the part of national authorities regarding the prospect of an ICC investigation. In Colombia, we found little evidence that prosecuting authorities (as compared to the military) believed the ICC would ever open an investigation. In the UK, interviewees described a palpable confidence on the part of British authorities vis-à-vis the unlikelihood of a formal ICC probe. And in Georgia, successive governments simply stopped being concerned about ICC involvement once it became clear that it could not simply be manipulated (either to prosecute alleged Russian abuses or, once the opposition came to power, former Georgian officials).
This suggests that the most productive posture of the OTP vis-à-vis national authorities when it comes to encouraging national proceedings is as a “sword of Damocles,” that is, as a threat and source of strong pressure. Where authorities simply do not care about ICC intervention, it will be difficult for the OTP to change this perspective. But where a lack of concern stems from the belief that ICC investigations are little more than a remote possibility, this suggests that the OTP should do what it can to counter those perceptions.
Current OTP practice places it in a good position to do so. In the past, threats of ICC action may have seemed like empty gestures; now, however, as, discussed in Appendix I, the OTP’s increased public reporting on preliminary examinations and its decision to defer active strategies to encourage national proceedings until it is certain of its own jurisdiction should reinforce the credibility of potential ICC action. The OTP’s identification of potential cases to national authorities and the public through its reports also serves to make clear the OTP’s intent to proceed if authorities do not.
To strengthen pressure, however, the OTP will need at times to take a more confrontational approach with authorities. This is especially important given the potential manipulation by national authorities of the court’s statutory framework.
When it comes to article 15 proprio motu investigations, the OTP needs to satisfy the court’s judges that there are no national proceedings that would render potential cases inadmissible. Efforts by the OTP to stimulate national proceedings can produce domestic activity that will make it more difficult for the OTP to meet this burden. Where that activity leads to genuine national proceedings this is positive. But there is an equal risk of domestic authorities producing a certain amount of activity—opening of case files and limited investigative steps—to stave off ICC intervention, but without following through with prosecutions. The judges’ remit to look at the admissibility of potential cases means that there is a wide scope of national investigative activity that could be deemed to render ICC action impermissible.
In this scenario, the preliminary examination period may be manipulated by national authorities, leaving it in limbo: too much domestic activity to be certain ICC judges will find OTP action permissible, but too little domestic activity to close out the preliminary examination in deference to genuine national proceedings. The result could be delayed ICC action where it is ultimately needed, increasing the challenges to investigating long after crimes are committed, and deferring the access of victims to justice. The Georgia case study exemplifies this risk.
The OTP needs to carefully determine when deferring to national authorities and deploying positive complementarity strategies is the right choice, and when this will only delay ICC action without any reasonable prospect of national justice. Getting that call right and avoiding instrumentalization is perhaps the OTP’s paramount challenge.
OTP Steps to Strengthen Its Hand
The OTP can take certain steps to strengthen its hand with national authorities.
First, it should sharpen up its private and public engagement. In Colombia, former and current government officials indicated that the OTP’s manner of engagement failed to convince them of any serious prospect that an investigation would be opened, even without further progress in national proceedings.
Second, the OTP needs to be able to verify information provided to it by government authorities. The OTP, among other steps it takes to verify information directly with authorities, can benefit from alternative sources of information. The OTP can assist civil society efforts to obtain this information by pressing governments on the importance of transparency.
Third, the OTP should also consider publicly identifying benchmarks for national authorities in more situations. Of these four case studies, it has only publicly referenced particular steps that are needed in an investigation in Guinea. While the scope of crimes and relevant national proceedings in other situations may limit its ability to replicate the approach in Guinea, the use of benchmarks stimulated national authorities to take specific steps. It would also allow the OTP to identify where such steps are not being taken, and where, perhaps, the time for deference to national proceedings has ended.
Finally, making these benchmarks public can serve to underscore the seriousness with which the OTP is approaching positive complementarity. More generally, transparency regarding the OTP’s analysis of domestic proceedings is key. Where the OTP is, and is seen to be, engaging national authorities in a strong manner to encourage national proceedings, other actors, particularly in civil society and among a country’s international donors, as relevant, can complement its efforts to hold the government to account to taking additional steps.
As indicated below, catalyzing these strategic alliances may not always be possible. But in the absence of this transparency, lengthy periods of preliminary examination can appear to local civil society and other key stakeholders as little more than a stalling tactic by the OTP, undermining the willingness of these actors to act as strategic partners.
2. Expedite Analysis to Get to Complementarity Activities Earlier
An important change in OTP practice has been to defer in general active encouragement of national proceedings until Phase 3 of its analysis, that is, until after it has determined that there are potential cases which, absent genuine national proceedings, could be the subject of ICC investigations and prosecutions. Of the case studies in this report, only the UK reflects this new approach, although aspects of the approach—in particular, engaging national authorities around proceedings relevant to the specific, potential cases it has identified—have also been used in the three other case studies.
This is a positive shift, and one that appears to have been driven by clarity in the court’s case law that admissibility at the situation phase will be determined with regard to potential cases. It strengthens the credibility of OTP pressure on national authorities given that it can be confident that it could act, should national authorities fail to do so. It avoids the OTP making public statements that go beyond the state of its analysis, which could undermine the credibility of its analysis and lessen its leverage. And it permits the OTP to engage with national authorities around the specific cases it has identified, which, in the experience of the OTP, as noted in Appendix I, has strengthened the level of engagement it can have with authorities.
Our research suggests that opportunity costs to delaying positive complementarity efforts to Phase 3 may be more limited than expected. This is because the opening of a preliminary examination and the activities that are otherwise necessary to conduct that examination—as distinct from specific strategies to encourage national proceedings—may have their own effect.
In Guinea, the opening of the preliminary examination led within weeks to the initiation of a domestic investigation. In Colombia, Georgia, and the UK, while relevant investigations had already been initiated prior to the opening of the preliminary examination (or, in the case of the UK, the reopening of the preliminary examination; there was no discernable effect of the first preliminary examination on domestic proceedings) observers suggested that the fact that the OTP was monitoring domestic proceedings and requesting information regarding these proceedings contributed to sustaining some pressure on national authorities to act, including, in some countries, by keeping the need for accountability on the radar of the government, civil society, and international partners.
At the same time, however, deferring an active approach to positive complementarity for too long does have costs.
Costs of Deferring Active Approach to Positive Complementarity
The ICC’s legal texts do not prescribe any timeline for taking decisions regarding preliminary examinations. The absence of timelines can provide a helpful flexibility to the OTP, when it comes to carrying out its analysis, as well as implementing its policy commitment to encourage domestic proceedings; the time necessary to catalyze national proceedings is likely to vary greatly depending on context. However, the Colombia case study (and, to a certain extent, the Georgia case study) suggest that with the passage of time, and inaction by the OTP, national authorities may grow increasingly less concerned about the prospect of an ICC intervention.
Keeping situations under analysis for several years has also undermined the OTP’s credibility in some affected communities; this was apparent in our case studies of Colombia, Guinea, and Georgia. The OTP’s ability to influence national authorities can be amplified through alliances with civil society groups, which can be undermined where NGOs lose confidence in the OTP’s process.
Given what are otherwise clear benefits to delaying positive complementarity activities until Phase 3, we recommend that the OTP seek to advance through Phase 2 as quickly as possible. This will limit delay in engaging national authorities, while preserving the benefits of the OTP being able to engage with these authorities around specific cases with a clear view toward ICC action if national proceedings do not materialize.
To do so, the OTP should consider its approach to staffing. It may be important to frontload resources on a given preliminary examination in order to analyze and verify communications, while then shifting staff to assess admissibility, and where appropriate, encourage complementarity in Phase 3.
3. Critical Importance of Strategic Alliances
In each of the case studies, we sought to understand the OTP’s engagement with other actors who could play a role regarding positive complementarity. These include representatives of a country’s international donors and UN agencies, who through political dialogue or capacity building could support justice efforts, and civil society activists engaged in advocacy or capacity building with governments regarding justice.
Unsurprisingly, the OTP had more influence where its efforts were amplified by others, or where it contributed to amplifying the efforts of others. Guinea, again, stands out. The OTP, the UN Office of the Special Representative on Sexual Violence, and victims’ associations have served as strategic allies, mutually reinforcing each other’s efforts when it comes to justice for the September 2009 stadium massacre. In Georgia, by contrast, the OTP had few such partnerships.
The OTP cannot be expected to single-handedly transform the national accountability landscape. Particularly where there are powerful political interests arranged against justice, the OTP needs to have the backing of other influential partners to catalyze political will.
Our research, however, is inconclusive when it comes to the question of whether the OTP can stimulate others to act. In Guinea, the engagement of some actors happened independently from any OTP efforts, while in other instances, OTP efforts to press for progress on the investigation had limited effect. In particular, donors remained far more focused on security issues despite outreach by the OTP. In Colombia, the OTP has been one of a number of actors on justice, but the engagement of these other actors does not appear to have been catalyzed by the OTP. In Georgia, the OTP did make some limited efforts to interest international partners, but these partners seemed more concerned by regional security in the aftermath of the conflict, and uninterested in prioritizing justice.
This seems equally true for international partners as it does for civil society groups. Local groups in all four case studies, albeit to varying degrees, have viewed the OTP’s approach critically. For the most part, NGOs tended to see the OTP’s engagement as delaying justice, which they feel can best be achieved through ICC prosecutions; that is, by giving the authorities space to act, and deferring ICC action, the OTP is prolonging the timeline for justice.
This can dim the willingness of local groups to see the OTP as an ally in advocacy with national authorities. In Guinea, even with some positive progress in investigations, some civil society groups have been quite critical of the OTP, although other groups are more supportive of its work; this has also been the case in Colombia, where there has been a persistent fear that the OTP will simply close the examination and walk away.
The OTP should increase its outreach and support to potential partners with a view toward encouraging them to reinforce the OTP’s own efforts. The need to respect confidentiality places real limits on what information the OTP can share. But within these limits, civil society activists indicated that more information about the OTP’s analyses is desirable, and could help contribute to increased advocacy by civil society groups on national justice.
In Georgia, civil society groups had limited access to the details of investigations. There, the OTP could have helped bridge the gap between civil society and the government by pressing government officials to provide more information about investigations, and in doing so, help NGOs become a more strategic partner in evaluating progress—or lack thereof—in investigations. In the UK, the OTP has had limited engagement with civil society, beyond the senders of the article 15 communications that led to the opening of the examination.
In view of the limits to what such outreach to partners may accomplish, and bearing in mind the OTP’s limited resources, international donors should also initiate activities to support positive complementarity as warranted in situations under analysis. This would provide the OTP with an immediate complement of potential partners, and does not already appear to be routinely the case.
In Georgia, for example, the European Union created a budget line to support cooperation with the ICC only after the opening of the investigation. We recognize that budgets are often determined far in advance, and it may be difficult to immediately react to the opening of a preliminary examination. But the use of discretionary funds can help to fill gaps until such time as the preliminary examination can be accounted for in budgeting. A general policy by international donors to support credible complementarity initiatives where international crimes have been committed, regardless of whether a preliminary examination has been opened, would also help to ensure the availability of strategic allies where the OTP does act.
It is critical, however, that the OTP maintain strong relationships across a range of stakeholders during preliminary examinations, regardless of the potential benefit to national justice efforts. This is needed to check information provided by government sources when it comes to advancing the OTP’s analysis. It is also necessary for the court’s transparency as an element of the sound administration of justice, when it comes to victims, civil society representatives, the general public, and ICC states parties. Where it becomes necessary for the ICC to open its own investigation, as was ultimately the case in Georgia, these relationships, particularly with civil society, are vital to support the work of the court.
4. Increased Transparency Key
Throughout these conclusions, we have highlighted where increased transparency of the OTP’s analysis and activities during preliminary examinations—particularly through effective use of relevant media—can further positive complementarity.
· publicity aimed at stimulating interest in accountability among the general public, civil society, and international donors to build and sustain conditions favorable to justice and strategic alliances to reinforce OTP efforts;
· publicity as a source of pressure on national authorities, including by publicly benchmarking investigative and prosecutorial steps to more credibly assert the OTP’s leverage; and
· publicity that equips strategic allies with information regarding the status of domestic proceedings, which can strengthen their advocacy with the government and lead to the OTP receiving information that verifies or disputes this account.
The latter can be key to the OTP’s ability to adapt its strategies, that is, either seeking to increase pressure or determining that national proceedings are unlikely such that it should seek to open its own investigation, thereby avoiding obstruction by national authorities.
In addition, the OTP’s efforts on positive complementarity will need to be adapted to context, leading to the perception of inconsistent treatment across different situations, which can undermine the OTP’s credibility, its leverage with national authorities, and alliances with strategic partners. As highlighted above, transparency in the OTP’s preliminary examinations can help to explain its decision making in a manner that mitigates these risks.
Finally, transparency has an independent value apart from its effect on national justice, in that it is a component of the sound administration of justice, and accountability to the court’s key stakeholders, including victims, civil society groups, national authorities in situations under preliminary examination, and ICC states parties, more broadly.
Despite increased reporting since 2011, including annual reports on preliminary examinations and situation-specific reports as preliminary examinations have moved between phases, the OTP’s overall approach to publicity remains cautious. Although Guinea stands out as a clear exception—with the OTP making effective use of local media during its visits and responding to some media requests from The Hague—in the three other case studies, the OTP has limited its engagement with the local media. In Georgia, the OTP also limited contact with international media, which may have provided greater opportunities than the local media.
The OTP should put in place clear communications strategies for each situation under analysis. Two elements will be particularly important to effective strategies.
First, publicity by the OTP should aim to make its analysis as accessible and as straightforward as possible. Constructive ambiguity in the OTP’s statements has weakened their effect, and added little to transparency. When it comes to the OTP’s annual preliminary examination reports, we found that there was a more limited positive effect of these reports than we had predicted; that is, few actors pointed to the utility of these reports when it came to strengthening their own advocacy. But these reports nonetheless play an important, different role: they provide a check on the OTP’s assessment by forcing regular transparency.
The OTP should continue its efforts to enhance reporting, including by developing communications strategies around the release of the annual report in each situation under preliminary examination to ensure findings reach authorities, civil society groups, and media in these countries. While our informal observation indicates that these reports have received increased media attention in recent years, there is still scope for going further.
The OTP should also consider formalizing the procedure with which it engages with the senders of the communications. This could include providing them with a sense of responses received from relevant government bodies, and identifying to them information that the OTP needs for the next phase of its analysis.
Second, certain situations will present highly complex media landscapes. On these landscapes, the OTP will need to have a deep knowledge, as well as deep contacts within media in order to facilitate a productive use of publicity. In the UK and in Colombia, media coverage of the ICC has not necessarily been productive, when it comes to national justice; this is particularly true in the UK, where coverage of allegations of abuse has been part of a politically charged landscape. In our experience, however, there would be scope for the OTP to more effectively engage with media in both countries.
In addition, governments should consider making available public versions of reports provided to the OTP. If governments are willing to do so, it would remove concerns about confidentiality from decisions on transparency.
* * *
Implementing these recommendations would in our view strengthen the OTP’s impact on national justice. But doing so will also depend on the availability of greater resources; the OTP’s resources on preliminary examinations are too limited (see Appendix I).
At the same time, our case studies suggest that it is important not to overstate the prospects for success. It is likely to be the case that most preliminary examinations that proceed beyond OTP determinations that there are potential cases over which the court could exercise jurisdiction will result in the need to open ICC investigations, given the many persistent and stubborn obstacles to national justice, particularly when it comes to holding to account high-level perpetrators. This poses a real challenge to the ICC, which faces a significant capacity crisis; demand for ICC action continues to outpace the resources it has available.
This report builds on Human Rights Watch’s 2011 report, Course Correction: Recommendations to the Prosecutor for a More Effective Approach to “Situations under Analysis.”
It is based on research conducted between June and November 2012 and September 2015 and December 2017, primarily interviews with key stakeholders who had knowledge of the OTP’s preliminary examination activities in each of the four country case studies: Colombia, Georgia, Guinea, and the United Kingdom. These stakeholders included government officials in ministries of foreign affairs, justice, and defense; national investigating and prosecuting authorities; judges; members of civil society groups; journalists; and representatives of diplomatic missions and UN agencies. These interviews and other research steps specific to each case study are described below.
Human Rights Watch also conducted 12 interviews in person and by telephone with staff members of the OTP. Human Rights Watch provided the OTP with a draft report for comments and corrections, which are reflected in the published report.
Human Rights Watch also consulted ICC case law, policy statements, news releases, and reports on preliminary examination activities issued by the OTP. We relied on our ongoing monitoring of the ICC’s institutional development and practice across its situations under analysis.
We conducted a limited literature review of existing publications on the Office of the Prosecutor’s positive complementarity activities during preliminary examination. Press reviews of media coverage of the OTP’s preliminary examination activities were conducted for the Colombia, Guinea, and UK chapters, using Factiva and the Google search engine, as well as a search of the websites of specific Guinean media outlets. In Georgia, a number of knowledgeable sources considered media coverage of the OTP’s activities to be very limited, so we did not conduct a press review. Whenever possible, secondary sources, such as reports by nongovernmental organizations and news articles, were used to corroborate information provided during interviews.
The four case studies were selected from current situations under preliminary examination before the ICC on the basis of a number of criteria. (The Georgia situation moved from preliminary examination to investigation shortly after this project began.) Criteria included Human Rights Watch’s assessment that in each situation, certain prospects for national justice existed or had existed, such that it was reasonable to expect the OTP to have some impact; geographical diversity; existing Human Rights Watch expertise and research in the country, either on relevant human rights violations or on the status of national proceedings; and the feasibility of carrying out research given resources and staffing.
We have used generic descriptions of interviewees throughout the report instead of actual names. Some interviewees wished to retain their anonymity given the sensitivity of the issues they discussed while others might have been at increased risk had their names been used. In some instances, the location where the interview was conducted is withheld to protect the identity of the source.
All participants were informed of the purpose of the interview, its voluntary nature, and the ways in which the information would be used. Interviews generally lasted between one and two hours. Interviewees did not receive any compensation for participating in interviews, but some interviewees in Guinea were reimbursed for transportation costs to and from the interview.
The Colombia chapter is based primarily on information gathered during research trips to Bogotá and Medellín by Human Rights Watch in June, August, and September 2016. In Bogotá, Human Rights Watch staff interviewed 36 people, including former or current government officials in the ministries of justice and defense and the Attorney General’s Office; former or current judges within the Constitutional Court and Supreme Court; and Colombian civil society representatives. Additional interviews were conducted in person or by phone between June and December 2016, including with staff of the OTP in The Hague. Most of the interviews were conducted in Spanish. Human Rights Watch also had access to two confidential memos expressing the views of the Attorney General’s Office regarding cooperation with the OTP and the consistency of Colombian legislation with the Rome Statute.
The Georgia chapter of the report is based primarily on information gathered during a research trip to Tbilisi conducted by Human Rights Watch in December 2015. In Tbilisi, Human Rights Watch staff interviewed 18 people, including former and current government officials in the ministries of justice and defense; civil society representatives; diplomats; journalists; and donor officials. Additional interviews were conducted in person, by telephone, or over email between December 2015 and September 2016, including with staff of the OTP. Interviews were conducted in English.
This chapter is based on research conducted between June 2012 and June 2016. Research trips were conducted in Conakry, Guinea in June 2012 and March 2016. The first research trip was originally conducted for the December 2012 Human Rights Watch report, Waiting for Justice: Accountability before Guinea’s Courts for the September 8, 2009 Stadium Massacre, Rapes, and Other Abuses.
Human Rights Watch researchers conducted interviews with approximately 25 individuals during the 2012 research trip and 35 during the 2016 research trip. Both individual and group interviews were conducted. Interviewees during both research trips included officials and staff in the Justice Ministry; justice practitioners, including judges, prosecutors, private lawyers, and legal support staff; representatives of international partners, including government and intergovernmental donor and United Nations officials; Guinean and international NGO members; local journalists; and victims of abuses.
Between July and November 2012 and November 2015 and June 2016, Human Rights Watch staff conducted additional interviews in French and English with UN officials, Western and African diplomats, ICC officials, and Guinean government officials in New York and The Hague, and by telephone. Most of the interviews were conducted in French, and a small number in English.
This chapter is based primarily on information gathered during Human Rights Watch research in London, Berlin and The Hague between November 2015 and July 2017. Human Rights Watch staff spoke to 23 individuals either in-person or by telephone, including journalists, barristers, solicitors, international criminal law experts, former and current government officials, parliamentarians, civil society representatives, and staff at the OTP. Interviews were conducted in English.
Human Rights Watch also reviewed a range of publicly available documents, including ICC reports and policy papers, European Court of Human Rights judgments, domestic judicial decisions, public and judicial inquiry reports, relevant NGO reports, government statements and reports, and British press articles.
Colombia has endured over 50 years of armed conflict between government forces and non-state armed groups. During the conflict, military personnel and other state agents, paramilitary groups, and guerrillas—notably the Revolutionary Armed Forces of Colombia (FARC) and the National Liberation Army (ELN)—have committed thousands of grave international crimes.
Colombia ratified the Rome Statute on August 5, 2002, and the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) opened its preliminary examination in Colombia—its longest running preliminary examination at time of writing— in June 2004, although its work was not made public until 2006.
This chapter assesses whether the OTP has catalyzed domestic prosecutions in Colombia regarding the systematic extrajudicial executions of civilians committed by army brigades between 2002 and 2008 in cases known as “false positive” killings.
“False positive” killings are only one of the OTP’s five areas of focus. However, given the breadth of alleged crimes committed in Colombia that could fall within the ICC’s jurisdiction, the scope of relevant domestic proceedings, the long-lasting nature of the OTP’s preliminary examination in Colombia, and the fact that justice for these killings has been a specific focus of Human Rights Watch’s work since 2011, we have chosen to limit our analysis to the issue of “false positive” killings.
The chapter does not include an assessment of the OTP’s engagement around the Agreement on the Victims of the Conflict, reached by the Colombian government and the Revolutionary Armed Forces of Colombia (FARC) guerrillas in December 2015 as part of their peace talks. The agreement has bearing on “false positive” cases, given that many such cases likely will be transferred to the “Special Jurisdiction for Peace” established by the agreement. The tribunal, however, was not operational at time of writing this report. Human Rights Watch has expressed concerns that problems in the agreement and in proposed implementing legislation could undermine meaningful prosecution of “false positive” killings before the tribunal.
Our research indicates that the OTP’s engagement on “false positive” killings has had mixed results. Authorities have carried out investigations and prosecutions of hundreds of low-level soldiers in “false positive” cases, and sources interviewed for this report suggested the OTP has been one of several important actors in keeping the need for accountability in these cases on the agenda. The OTP worked effectively to counter at least one legislative proposal that might have undermined these prosecutions and its engagement positively affected the development of relevant prosecutorial strategies.
But its engagement has had a limited influence in the face of the main obstacle to prosecution of high-level officials: lack of unequivocal political will to support these prosecutions. This is perhaps unsurprising. The prosecution of senior level officials by a state in the absence of regime change presents one of the most significant tests of the complementarity principle.
In addition, as discussed below, the Havana peace process between the Colombian government and FARC guerrillas significantly limited the OTP’s influence with regard to advancing national prosecutions of “false positive” killings. Windows of opportunity for a more confrontational approach by the OTP closed as the peace process advanced, lest the OTP be perceived as a spoiler of the peace.
Below, we first describe progress in domestic prosecutions of “false positive” killings and analyze the main obstacles to further progress. We then summarize the OTP’s engagement regarding “false positives” since 2008 and assess whether and to what extent the OTP has catalyzed justice in “false positive” killings, regarding three specific areas: legislation, prosecutorial policies, and individual prosecutions. Finally, we assess whether the OTP has strengthened its leverage with the Colombian government by building strategic alliances with key partners, including local civil society and international partners, and through effective engagement with media.
B. National Prosecutions of “False Positive” Killings
Between 2002 and 2008, army brigades across Colombia routinely executed civilians. Under pressure from superiors to show “positive” results and boost body counts in their war against guerrillas, military units abducted primarily young men or lured them to remote locations under false pretenses—such as promises of work—killed them, placed weapons on their bodies, and then reported them as enemy combatants killed in action.
Committed on a large scale for more than half a decade, these “false positive” killings constitute one of the worst episodes of mass atrocity in the Western Hemisphere in recent decades. They were war crimes and might amount to crimes against humanity under the Rome Statute.
According to Human Rights Watch’s research, significant evidence indicates that numerous senior army officers, including officers who subsequently rose to the top of the military command, bear responsibility for “false positive” killings. Our research suggests that some of them may at least be criminally liable as a matter of command responsibility in that they knew, or should have known, “false positive” killings were taking place and yet failed to prevent or punish the conduct.
1. Status of National Prosecutions
In September 2008, a scandal broke out over the disappearance of at least 16 young men and teenage boys from Soacha, a low-income Bogotá suburb. Their bodies were found in the distant northeastern province of Norte de Santander. The military—initially backed by then-President Alvaro Uribe—claimed they were combat deaths, but it soon came to light that they were victims of “false positive" killings. The Soacha scandal helped force the government to take serious measures to stop the crimes and to publicly admit allegations of “false positive” killings that human rights monitors had raised for several years.
The Attorney General’s Office had carried out some investigations on “false positive” killings before the Soacha scandal, despite the government’s reluctance to admit crimes were taking place in a widespread manner. Investigations began in 2007, and resulted in first convictions around 2009. Since then, Colombian authorities have made significant progress in prosecuting members of the army responsible for “false positive” killings.
As of March 2018, the Colombian Attorney General’s Office was investigating 2,198 cases of extrajudicial executions committed between 2002 and 2008 and had convicted over 1,600 state agents in 268 cases.
While in recent years there have been some meaningful steps forward in prosecuting top commanders, progress has been slow. Out of all of these cases, at least 11 army colonels have been convicted and one retired army general has been charged.
Until June 2015—almost seven years after the Soacha scandal—no prosecutorial steps had been taken against active or retired generals implicated in “false positive” killings. In that month, four active or retired generals were summoned for questioning (interrogatorio) and a “spontaneous declaration” before a prosecutor (version libre)—both steps being the very first in criminal investigations under the two relevant codes of criminal procedure.
The generals included former army top commander Mario Montoya Uribe. As of March 2018, 11 had been called into questioning. At time of writing, other prosecutorial steps had been taken regarding three of the 11: the investigation against one retired general was closed due to lack of evidence, one retired general has been charged and indicted, and one investigation against an active general was closed due to lack of evidence, although he remains under investigation for another case. In March 2016, prosecutors announced that they would summon Montoya Uribe for a hearing where he would be charged, but such hearing had not taken place at time of writing.
2. Obstacles to Accountability at Senior Levels for “False Positive” Killings
Human Rights Watch has previously identified several obstacles to accountability for “false positive” killings. These include (a) use of an incident-based approach instead of prosecutorial strategies aimed at uncovering patterns that could lead to establishing accountability at more senior levels; (b) limited resources allocated to these cases; (c) lack of military cooperation with civilian investigations, with many “false positive” killings pending before military instead of civilian courts; and (d) reprisals against witnesses.
This section focuses on what appear to be the two key obstacles for accountability at senior levels for “false positive” killings: inconstant political will to move forward with these prosecutions, and use of an incident-based approach—as opposed to strategies aimed at uncovering patterns that might be indicative of the responsibility of more senior officials.
Political Will: Mixed Signals
Authorities in the Colombian government have sent mixed signals regarding the political will necessary to support prosecuting those most responsible for “false positive” killings.
During the Uribe administration (2002-2010), the government repeatedly denied that “false positives” were a systemic problem and accused the human rights defenders who were reporting these killings of colluding with guerrillas to discredit the military. The government took the position that those responsible for allegedly isolated events would be held accountable, although in fact criticized prosecutions. In 2008, the government dismissed 27 army officials, including three generals, following the Soacha scandal.
In 2010, Juan Manuel Santos, President Uribe’s defense minister between 2006 and 2009, won the national elections. His administration has committed publicly to hold to account those responsible for “false positives.” At the same time, it has promoted several pieces of legislation that would open the door to impunity for these crimes, including the Legal Framework for Peace and numerous bills that would transfer extrajudicial killings, including “false positive” killings, to military jurisdiction. These legislative developments and the OTP’s influence with regard to them are discussed further in Part D.
A key reason behind these mixed signals on accountability during the Santos’ administration is the peace process with the FARC guerrillas, which formally began in October 2012, and the government’s attempts to obtain military support for the process.
For example, a former official from the Attorney General’s Office told Human Rights Watch that authorities thought that progress in prosecuting top army commanders would undermine the army’s support for the peace process when a final accord was reached. Similarly, a former Defense Ministry official noted that some legislative proposals the ministry submitted, including one on military jurisdiction, were meant to convey that military personnel would not be subject to harsher prosecutions than the guerrillas negotiating peace.
However, the peace process at times apparently created the opposite incentive by actually helping prosecutions move forward. Some interviewees noted that at times the Attorney General’s Office may have advanced “false positive” cases to send a message to the international community—such as the US government and the Inter-American human rights system—that peace negotiations would not reinforce impunity for army members and, perhaps more critically, to avoid an ICC intervention that could risk the peace talks.
In fact, an ICC investigation would mean that Colombian authorities would lose control of their prosecutions of army officers and, thus, key leverage to gain the army’s support for the peace deal. This also suggests that, independently of any specific strategies pressed by the OTP on positive complementarity, Colombia’s membership in the ICC has been a positive point of pressure, avoiding worse outcomes on justice.
Another key obstacle to holding more senior officials accountable has been the fact that prosecutions in Colombia have long been incident-based, while failing to investigate broader patterns of abuses—which is necessary to determine responsibility beyond military personnel directly involved in carrying out “false positive” killings.
Between 2012 and 2015, then-Attorney General Eduardo Montealegre adopted prosecutorial policies that helped address this shortcoming, including by designing a prioritization scheme and creating a unit to carry out a context-based analysis of crimes, the Unit of Analysis and Context (UNAC, later called Direction of Analysis and Context, DINAC). However, implementation of these strategies to prosecute “false positives” has been limited or slow, as discussed in Section D.
C. OTP Approach to Positive Complementarity and Cooperation Challenges
Domestic proceedings on a range of crimes that could amount to war crimes or crimes against humanity—even though they have often been prosecuted as ordinary crimes and did not include “false positive” killings—pre-dated the beginning of OTP involvement in Colombia in 2004.
Therefore, the OTP’s strategy was to encourage Colombian authorities to address crimes it believed were relevant to the ICC’s jurisdiction, while monitoring implementation of the 2005 Justice and Peace Law, which allowed demobilized members of paramilitary death squads to receive reduced sentences of up to eight years in exchange for confessions.
The OTP’s work on “false positives” started in 2008, shortly after the Soacha scandal. However, until 2012, the OTP’s engagement with Colombian authorities regarding the issue had been limited. Although the OTP closely monitored the developing Soacha scandal in 2008, and continued to analyze information obtained through open sources, including with regard to national proceedings, it had limited and informal engagement with national authorities.
The OTP first referred to “false positives” in its public statements only in 2010 (its practice of issuing what are now annual reports on its preliminary examinations began in 2011). In addition, resources within the OTP—already severely limited when it came to preliminary examinations—were diverted to other situations under analysis after 2008. There was no analyst officially in charge of the Colombia work between November 2010 and August 2011.
Human Rights Watch was unable to identify interviewees who could speak with first-hand knowledge about the engagement between the OTP and Colombian authorities in the earliest phases of the prosecution’s preliminary examination. As a result, this chapter primarily concerns the period from 2012. This means that we have been unable to comprehensively assess the possible effect of OTP monitoring and limited engagement with national authorities on national prosecutions for “false positive” cases between 2008-2012. This period may have had important opportunities for influence, given our conclusion (see below) that the start of the peace process in 2012 was a significant limitation.
In 2012, the OTP gave renewed attention to the international crimes committed in Colombia and the national efforts to bring those responsible to justice. An OTP official told Human Rights Watch that prosecutor Moreno Ocampo considered making a final determination regarding the preliminary examination near the end of his mandate, in 2012.
At the time, and since 2008, the OTP was working on an “interim report” on the situation. The report, published in November 2012, was, according to one interlocutor, originally aimed at easing complaints from local civil society groups that the OTP was not doing enough in Colombia. It resulted in an important new form of engagement.
The report is seen by the OTP as an important tool in its strategy to encourage national proceedings. That strategy is rooted in the OTP’s assessment that while Colombia has the national capacity to prosecute those most responsible for international crimes, including “false positive” killings, conflicting political interests and an inadequate prosecutorial strategy have at times undermined efforts to carry out these prosecutions. (These are, broadly speaking, the same key obstacles identified by Human Rights Watch’s research, as indicated above.) The interim report accordingly identifies priority areas as an effort to overcome a lack of adequate prosecutorial strategy domestically; one of these is “false positive” cases.
Since the interim report and as of the end of 2017, the OTP has carried out six trips to Colombia: three in 2013 (in April, June, and November), two in 2015 (in June and May), and a high-level mission, led by the prosecutor, Fatou Bensouda, in 2017. During these trips, OTP officials met with officials from the three branches of government, and representatives of national civil society groups, international NGOs, and international organizations. In addition, OTP officials, on occasion, held meetings with Colombian diplomats in The Hague and with other officials visiting the OTP.
One relevant challenge for the OTP in implementing this approach, however, has been the somewhat limited cooperation from Colombian authorities.
During the administration of President Alvaro Uribe (2002-2010), the Colombian government targeted local NGOs, accusing them of politically motivated lies, and took a challenging stance with international human rights bodies.
During the administration of President Juan Manuel Santos (since 2010), the Colombian government adopted the view that it should engage with international bodies, including the OTP. As part of this approach, the government has shared a significant amount of information with the OTP, including statistics, hundreds of rulings, spreadsheets on ongoing prosecutions, and a mapping of “false positive” cases.
Despite this, since 2014, Colombian authorities have at times failed to provide material information about the suspects, scope of the investigations, nature of charges, or the investigative steps taken against current or retired generals implicated in “false positive” killings. An official within the Attorney General’s Office told Human Rights Watch that during a 2015 OTP trip the office instructed officials that while they could explain cases, they could not hand over any documents.
Colombian officials have argued that material information about ongoing investigations is confidential under Colombian law and that strictly speaking, ICC states parties do not have a duty to share any information with the OTP during a preliminary examination. One government official said that the government “may voluntarily” share such information “provided domestic law is respected.”
However, the reluctance to share information appears to stem from a belief among some officials that the OTP would use that information as evidence during an ICC proceeding against members of the Colombian military. In addition, the limited cooperation may be due to the peace negotiations with FARC guerrillas. According to an OTP official, “[t]he relationship [with the government] became harder with the peace process…. Our missions created less enthusiasm [in the government], that was clear.”
The OTP publicly noted the government’s lack of cooperation in its November 2015 report. OTP officials told Human Rights Watch that they decided to do so to remind the Colombian government that the ICC case law requires that progress be supported with evidence with a “sufficient degree of specificity and probative value.”
The OTP noted that there was no immediate change in cooperation in response. By August 2016, however, it had ultimately received the requested information from the authorities.
During her September 2017 mission, Bensouda said in a press conference that the Attorney General’s Office had not provided information she had requested regarding “false positives” investigations.
D. Impact of OTP Engagement
Although beyond the scope of this report, as discussed briefly above, it is clear that Colombia’s status as an ICC member country has profoundly shaped the government’s approach to the current peace negotiations, where it has sought to position its proposals as sufficient to avoid ICC intervention. This, in part, repeats the previous government’s approach to the implementation of the Justice and Peace Law for demobilizing paramilitaries.
When it comes to “false positive” killings, the OTP has had an impact on certain Colombian legislation and prosecutorial policies, but, in the period of research covered by this report—that is, mainly after the publication of the OTP’s 2012 interim report and through September 2016— it has had less success in fostering individual prosecutions of senior army officials. There has been significant progress in cases against lower and mid-level perpetrators—including the at least 11 colonels cited above—since 2012, and our interlocutors thought the OTP was one of several factors advancing these cases. There is little indication, however, that this progress will translate into cases against higher-level defendants; while proceedings have been initiated against 19 generals, the cases have been marked by undue delay. (The OTP’s impact on legislation, prosecution policies, and prosecutions is evaluated below.)
1. Legal Framework for Peace and Constitutional Court Ruling
In 2012, lawmakers passed the Legal Framework for Peace, a constitutional amendment that sought to lay the groundwork for the peace negotiations with FARC guerrillas. The amendment included a range of benefits for those responsible for human rights abuses committed in the context of the armed conflict, including members of the armed forces. While its applicability was overtaken by the justice agreement that the government and FARC reached in December 2015, the amendment would have benefited members of the armed forces responsible for “false positive” killings, since Colombian courts have considered that many of these killings are connected to the armed conflict.
The amendment empowered Congress to limit prosecutorial efforts to those deemed “most responsible” for international crimes committed in a systematic manner, in an attempt to emulate the OTP’s prosecutorial strategy.  In fact, the OTP’s prosecutorial strategy is cited in the official explanation of the bill.
According to the vice minister of justice at the time, this provision was not meant to limit the prosecutions to those strictly required by the ICC, but was rather a “policy transfer” premised on the argument that limiting the prosecutions to those “most responsible” would make prosecutions most effective.
While some prioritization is to be expected in situations of mass atrocities committed by thousands of perpetrators, a selective policy limited to those “most responsible”—meaning that all others will not be prosecuted for their crimes—fails to meet the state’s responsibility to hold those responsible for abuses accountable.
In addition, the Legal Framework for Peace amendment allowed authorities to fully suspend prison sentences even for those deemed “most responsible.” This provision seemed designed to facilitate justice negotiations with the FARC and severely undermined the chances of meaningful justice for grave abuses.
In July and August 2013, the OTP sent letters to Colombian authorities clarifying its views on these two issues. The first, sent on July 26, argued that suspended sentences for those most responsible for the worst crimes were incompatible with the Rome Statute. The second, sent on August 7, clarified that the OTP’s prosecutorial policy focuses on those most responsible in its own cases before the ICC , while also supporting national investigations for lower-ranking perpetrators to ensure that offenders are brought to justice by some other means. The letters were leaked in August 2013, published in Semana magazine, and widely reported. 
Although the OTP’s letters were controversial and led to some civil society representatives criticizing the OTP, several interviewees, including a Constitutional Court judge, agreed the letters had a significant influence over the August 2013 Constitutional Court ruling.  The ruling declared that the Legal Framework for Peace was constitutional, but prohibited the full suspension of penalties for those “most responsible” for crimes against humanity, genocide, and war crimes committed in a systematic manner.
2. Bills Expanding Military Jurisdiction
From 2012 to 2015, the Defense Ministry presented numerous bills that would transfer “false positive” cases from civilian to the military jurisdiction, where—given the military jurisdiction’s lack of independence—it was not expected they would be prosecuted.
Such proposals ran contrary to the view of the UN Human Rights Committee that civilian justice authorities should investigate and prosecute alleged human rights violations. One of these bills was passed in December 2012, but was struck down by the Constitutional Court in October 2013 on procedural grounds. Attempts to pass new legislation opening the door to the transfer of extrajudicial killings to military jurisdiction were frustrated largely due to pressure by domestic and international NGOs, which had also been important voices in opposing such bills from the outset.
The OTP included these bills as part of their focus on Colombia in its 2012 interim report, noting that it “[would] seek further information and clarification … on the legislative efforts pertaining to the jurisdiction of military courts.”
In their 2013 visits, OTP officials discussed the bills with government officials. According to a former Defense Ministry official, during one meeting, OTP officials “threatened” that transferring “false positives” to military jurisdiction could affect the OTP’s assessment of admissibility. Civil society representatives asked the OTP to explicitly condemn the bills.
The threat that the passing of these bills would help foster an ICC investigation played a significant role in the public debate in Colombia. In fact, many statements by civil society groups highlighted that the bills would open the door for an ICC investigation. Human Rights Watch also referred to the ICC in its advocacy against the bills.
Indeed, according to Human Rights Watch interviews, including one with a defense official, members of the Colombian army responsible for “false positive” killings seemed to fear an ICC investigation, giving leverage to government officials in discussions with members of the military about progress in prosecutions or legislative reforms. For example, a former Defense Ministry official said that he often “used the ICC as a backup in negotiations with members of the military” about legislative proposals to prosecute them.
In its 2013 report on preliminary activities, the OTP took note of the concerns by civil society representatives, international NGOs, and human rights bodies. However, it reported that the bills were not inconsistent with the Rome Statute since the “analysis of national proceedings is case specific, and there is no assumed preference for national proceedings to be conducted in civilian as opposed to military jurisdictions per se.” It went on to indicate that it would “evaluate whether specific national proceedings have been or are being carried out genuinely.
The OTP’s assertion that there was no preference for civilian jurisdiction under the Rome Statute effectively ended public debate regarding the role of the ICC, and may even have helped the government advance these bills. A former Defense Ministry official told Human Rights Watch that the fact that the OTP did not consider the bills inconsistent with the Rome Statute was “very helpful” for him in his discussions with civil society and other government officials. Officials from the Attorney General’s Office said that the OTP had remained “silent” and failed to help show potential problems with these bills.
From one perspective, the OTP was constrained by the Rome Statute regarding the proposed expansion of the military jurisdiction to include “false positive” cases; the Rome Statute does not include a preference for civilian over military jurisdiction.
However, it does provide that trials that are not conducted independently or impartially and in a manner consistent with an intent to bring the person concerned to justice may indicate that the state is unwilling to conduct genuine proceedings. Human rights bodies have repeatedly found that military courts have failed to deliver independent and impartial trials for alleged abuses committed by the military.
It seems possible that the OTP could have acted more flexibly in expressing its views and, in the context of its intent to monitor specific proceedings, explicitly credited the well-documented concerns with military jurisdiction over these cases. Although it did so initially, its subsequent announcement that military jurisdiction was not per se inconsistent with the Rome Statute undermined civil society advocacy.
3. OTP’s Impact on Prosecutorial Strategies
Between 2012 and 2015, the Attorney General’s Office under Attorney General Eduardo Montealegre designed some promising prosecutorial strategies that sought to overcome obstacles faced in prosecuting atrocities, including “false positive” killings.
One key prosecutorial strategy was developing a prioritization strategy, designed under an October 2012 directive. The directive created a committee, led by the deputy attorney general, that was in charge of establishing general prioritization strategies and approving prioritization strategies defined by the units within the Attorney General’s Office.
A second key shift was the creation of the Unit of Analysis and Contexts (Unidad de Analisis y Contextos, UNAC; later called Direccion de Analisis y Contextos, DINAC) in 2012. As of August 2016, the DINAC was composed of about 400 officials, including around 40 prosecutors, judicial investigators, and analysts from a range of social sciences. It was designed to carry out a context and pattern-based analysis of the crimes, including “false positive” cases, to determine the structure of the groups and identify those most responsible for abuses, addressing a key challenge posed by what had been incident-based prosecutions, as discussed above.
Attorney General Montealegre told Human Rights Watch that the prioritization model and UNAC were influenced by the case law and prosecutorial strategies of international courts, including the ICC. Indeed, prioritization was a key recommendation in the OTP’s November 2012 interim report. Montealagre said that he decided to adopt a prioritization model in part because of the threat of an ICC investigation, but also because he thought it would enable more efficient prosecutions.
When it comes to UNAC, OTP officials have shown significant interest and have repeatedly visited the unit. In 2014, a delegation of the Attorney General’s Office, including Deputy Attorney General Jorge Fernando Perdomo, visited the ICC to discuss the methodology and challenges of the UNAC. In December 2014, the OTP commended the UNAC’s mapping of “false positive” killings, noting that it was partly consistent with information analyzed by the OTP regarding the military units allegedly involved in the crimes across the country.
Ultimately, however, the effect of these developments has been limited. Below we describe their implementation through mid-2016.
A prioritization strategy for the Human Rights Unit—the unit within the Attorney General’s Office that carries out many of the prosecutions of “false positive” cases in the ordinary justice system—was not approved until March 2015. Some prosecutors had prioritized “false positive” killings before the resolution, but many had not and were not legally required to do so.
UNAC’s role shifted over time. Instead of supporting investigations that other units conducted with context and pattern-based analysis, after 2014, it operated more like a normal unit in charge of prosecuting some cases and was staffed with more prosecutors and fewer analysts. This means it could not support the Human Rights Unit on “false positive” cases. Also, UNAC stopped directly investigating “false positive” cases in 2014, focusing instead mainly on crimes committed by the ELN and FARC guerrillas.
OTP officials said that government officials told them that this decision was taken because the UNAC had mapped “false positive” killings, so the cases were transferred to the competent prosecutors for individual prosecutions. But Attorney General Montealegre told Human Rights Watch that, although UNAC might investigate army officials in the future, UNAC’s focus shift was a “circumstantial decision due to the peace process.”
Effective coordination between the relevant units within the Attorney General’s Office in charge of prosecuting “false positive” killings, including the Human Rights Unit, prosecutors before the Supreme Court, and the UNAC also remains limited. 
4. OTP’s Impact on Individual Cases
The OTP’s preliminary examination does not appear to have triggered the initial investigations of “false positive” cases. In fact, at the time investigations began, the attorney general told Human Rights Watch that he thought that the OTP was not looking at the issue of “false positives” when his office started investigations in 2007. Rather, other actors—particularly the US government and NGOs— had a key role in the initial investigations.
The OTP’s continued monitoring of “false positive” cases and its regular engagement with authorities around these cases, particularly since 2012, has contributed to continued forward movement in prosecutions. During missions, OTP officials followed-up on progress made by domestic authorities in prosecuting the crimes identified in the interim report, including “false positives,” and discussed relevant legislative proposals.
Many government officials and civil society representatives interviewed by Human Rights Watch thought that the OTP had influence over the Colombian Attorney General’s Office, albeit as one of the several factors catalyzing national prosecutions in Colombia.
For example, an official noted that while “we did not work with the idea that they could open an investigation, [the OTP] was helpful mostly because it was watching us.” Other factors with significant influence over the progress of prosecutions included the Inter-American human rights system, the Office of the UN High Commissioner for Human Rights in Colombia, the US government, and national and international NGOs, among others.
However, overall, progress in prosecuting senior army officials remains slow. Interviewees suggested that while OTP visits or statements often have short-term impact, they did not lead to meaningful progress in prosecutions. One official noted, for example, that they would often put in place “temporary” measures to address the OTP’s concerns, just to “extinguish the fire.” While one official recalled that the Attorney General’s Office questioned four active or retired army generals between July and September 2015 in reaction to the OTP’s May 2015 visit, this has not, to date, translated into significant progress in cases involving army generals.
An OTP official’s description of the effect of OTP missions gives additional context to the views of these interlocutors. He thought that responses elicited by OTP missions were positive, in that they moved the balance of conflicting domestic forces in favor of progress in prosecutions. But the official said this did not amount to shifting the balance definitively toward prosecuting high-level officials.
A number of current and former officials interviewed by Human Rights Watch indicated widespread belief is lacking in the Attorney General’s Office that the OTP will open an ICC investigation, undercutting its leverage. A number of factors, some interrelated, have led to this result.
First, the peace process appears to have been influential: many interviewees in the government and civil society said it was unlikely the OTP would open an investigation amid a peace process.
“The OTP walks a thin line, especially regarding the peace process,” an OTP official said. “Being responsible requires that we are cautious … and the credibility of the OTP could be at stake… no one undermines a peace process irresponsibly.” The OTP official added this meant it would not interfere in a peace process unless it believed that the peace process would result in impunity. According to the official, the OTP does not take the “back seat” when peace negotiations are ongoing in an ICC state party. Instead, it “tries … [to] have peace processes adjust to the Rome Statute.”
Interviewees described the OTP’s engagement via its public statements as “cautious,” which they attributed to the peace process. (See discussion of OTP media engagement below.)
Second, the length of the preliminary examination appears to have diminished the threat of an investigation. In particular, recent significant progress in prosecuting some international crimes could make it hard for officials to believe that the OTP would open an investigation now.
This may have been compounded by public statements, particularly from then-Prosecutor Moreno Ocampo, describing the preliminary examination in Colombia as a “success story.” For example, in December 2010, he told El Tiempo newspaper: “Colombia has learned, it seems to me, and can teach. The concept of the Law of Justice and Peace is very interesting, very unique. It’s important to keep a close eye in order to accomplish it. There [remains the challenge for] judges and prosecutors [to] wrap up cases and show that it works.”
Third, according to the OTP, the scope of crimes and relevant proceedings is such that while it can discuss specific cases by conduct and alleged group bearing responsibility, there is often not enough time for it to discuss the possible criminal responsibility of specific individuals during missions. In addition, although the OTP has on occasion requested that officials make progress in a given period and conveyed that it was losing its patience to spur progress, it has not set specific benchmarks on a regular basis.
In 2017, however, the OTP provided the Colombian authorities with a report regarding 29 active or retired army generals and six active or retired army colonels, whom it was examining for possible criminal responsibility for “false positives.”
But the OTP’s overall broad approach did not place officials under pressure to act, according to several interviewed for this report. One interviewee, for example, pointed to a meeting where an OTP official asked Colombian prosecutors a broad question about how they would address command responsibility under the criminal code. While the use of command responsibility is highly relevant to advancing progress in cases against high-level officials, in the context of this meeting, this official thought that the OTP’s broad approach opened the door to a discussion that was more theoretical, rather than pressing the government to be specific about its plans and progress.
The OTP acknowledged that missions included some conversations of a more academic or theoretical nature, but indicated that it sought to apply such discussions to the cases under investigation in Colombia. The OTP considered that this would eliminate the ability of authorities to find excuses in criminal law standards or reach wrong conclusions about commanders’ responsibility. Indeed, one official from the Attorney General’s Office said he felt OTP meetings were helpful to him as an occasion to test his ideas about how to charge commanders for crimes their troops committed. OTP officials also highlighted that there had sometimes been some strong discussions, and that, as reflected in its annual reports, it had pressed the government to provide more details on specific cases and defendants.
Overall, however, most interviewees suggested that the OTP’s style of engagement had a limited effect. In fact, some government officials noted that the OTP seemed to be satisfied with the work of the Attorney General’s Office. An official noted, for example, that during an OTP mission he felt that the OTP “wanted to support us so they could close [the preliminary examination] because they have too many troubles” in other countries.
E. Strategic Alliances
The OTP’s approach in Colombia has not taken full advantage of opportunities to strengthen its leverage with government authorities by way of building strategic alliances with other key partners.
1. Colombian Civil Society
The OTP has developed a significant relationship with human rights groups in Colombia. The vast majority of the civil society representatives whom Human Rights Watch interviewed had been in contact with the OTP, which had asked them for information, including related to the prosecution of cases they worked on.
Many human rights groups have used the OTP and a potential ICC investigation as leverage in their advocacy meetings and in their documents, arguing that the expansion of the criminal military jurisdiction, the Legal Framework for Peace, and generally a lack of progress in the prosecution of “false positive” killings could trigger an ICC investigation. A former attorney general described these efforts as a “culture of international justice” within the Colombian civil society, that is, a repeated appeal to the ICC and human rights bodies to advocate for justice.
However, many civil society representatives interviewed were disappointed with the OTP’s work in Colombia. Some felt that the OTP had taken too long to open an ICC investigation, and that its engagement with the government had been too soft.  The disappointment seemed to have been particularly significant regarding—although not limited to—the tenure of Moreno Ocampo; many civil society representatives disagreed with his assessment on whether Colombia was pursuing national prosecutions.
One civil society representative said of the OTP’s more recent engagement: “The Colombian state plays with the OTP and the OTP seems to follow the game.” In addition, many civil society representatives said they believed the OTP would most likely close the preliminary examination without initiating an ICC investigation.
On the other hand, some civil society representatives thought the OTP had often been too strong in its engagement regarding the peace process, especially in the letters it sent to the Constitutional Court regarding shortcomings in the Legal Framework for Peace. One of these representatives, for example, thought that the letters “damaged” the peace process by demanding too rigid justice standards and bolstering the views of opponents of the negotiations.
2. International Partners
Civil society representatives and government officials interviewed for this report believed that other international actors, such as the US government, had a higher degree of influence over the Colombian government than the OTP.
This is unsurprising; there is a huge disparity between US influence and that of the ICC. Many pointed out, for example, that US authorities were very influential with the Colombian government, which would risk losing access to US funding if it failed to comply with human rights conditions. Colombian elites have also long given importance to the US.
However, the OTP has not sought actively to capitalize on the pressure that these other actors could bring to bear on the issue of accountability. While the OTP has had some isolated meetings with authorities from the US government and the Inter-American human rights system, it did not pursue a specific strategy to develop coordinated or joint efforts on complementarity.
There may have been some obstacles to increased coordination between the OTP and these other actors; the US is not an ICC member country, although it has supported ICC investigations under certain circumstances, and has been engaged in Guinea to support the preliminary examination there. The need for justice for “false positives,” however, has been a significant issue in the Colombia-US relationship, especially under the Obama administration. There are also significant differences in the mandates of the Inter-American human rights system as compared to the ICC. However, the backing of relevant members of the international community may have allowed the OTP to strengthen its leverage, possibly by alleviating concerns that the ICC would have been isolated and cast as the “spoiler” of the peace process.
Colombia has sophisticated media compared to other countries in the region. Media outlets give an unusual importance to human rights issues and seem to be highly influential with national authorities. Statements and visits by OTP officials are widely reported.
However, this does not seem to have played a significant role with respect to government policies. As an official in the Attorney General’s Office said, press coverage creates “paranoia” regarding the OTP in the Colombian society, but it “does not affect us, [since] these are things we already know.”
OTP officials do not accept interviews in Colombian media; their media engagement takes place via workshops, press conferences during missions, press statements, and op-eds. Since the preliminary examination was opened, as of December 2017, the OTP has released five press statements (two on the peace process and three on concluded missions) and participated in eight workshops or conferences involving Colombia.
According to OTP officials, the OTP considers that more frequent use of media would not be effective per se; rather it has sought to be strategic regarding timing and to control its messaging. In its experience, the OTP has had to make significant efforts to ensure that statements are covered accurately and has had to work to correct misrepresentations of OTP’s view in the Colombian press.
OTP statements are usually broad and do not reference specific examples of progress or concerns. This may explain why government officials feel that these include nothing new. Meanwhile, media coverage on the annual reports on preliminary examination activities or the 2012 interim report, which include a more detailed analysis of prosecutions, is usually limited. For example, the Colombian media did not cover the OTP’s reference in its 2015 report to the government’s reluctance to share information about progress in prosecuting “false positive” killings.
The Colombian preliminary examination shows that it may be easier for the OTP to influence legislation and prosecutorial strategies, rather than implementation of laws and policies in specific cases. This makes sense, given that progress in specific cases against high-level defendants will inevitably be more sensitive.
However, in Colombia, this seems to have been compounded by the OTP’s strategy not to set out benchmarks regarding specific proceedings in its discussions with government officials. While thousands of crimes have been committed in Colombia, it seems possible that the OTP could have engaged with authorities on some of the specific incidents or proceedings it considered most significant. Its public statements have tended to be general and not perceived by authorities as a significant source of pressure.
Since 2012, the peace process has made the OTP’s engagement more difficult, narrowing opportunities for a more confrontational approach lest it be viewed as spoiling the peace.
A more limited influence therefore reflects certain realities about the political landscape in which the OTP must work.
Nonetheless, the OTP seems to have been at times excessively cautious in its engagement. A strengthened approach in discussions with officials and a communications strategy—backed by the necessary expertise in the Colombian media landscape—to more clearly articulate the status of the OTP’s analysis and gaps in government action and cooperation with the ICC could have increased the OTP’s influence with the government.
While the OTP has had a high level of engagement with civil society organizations, being seen to be more effective in its approach with government officials may have increased confidence among these actors and their willingness to support the OTP’s efforts. Additionally, a stronger effort to capitalize on pressure from other international actors could have helped address the challenges of demanding accountability in the midst of the peace process.
Over the course of 2017 there were indications of a shift in approach, including the OTP’s provision of a report to the authorities regarding its analysis of the status of proceedings in “false positive” related cases, and clearer public statements regarding a lack of cooperation, particularly in the context of the high-level September 2017 mission, led by Bensouda. The OTP’s 2017 annual preliminary examination report provides more specific details regarding the five potential cases identified by its analysis. This includes a specific number of officials under whose command high numbers of “false positive” killings were allegedly committed, and as to whom it is assessing the status of national proceedings. While assessing the impact of these developments is beyond the timeframe of the research conducted for this report, taken together, they suggest a more concrete approach to engagement, which, consist with the findings of our research, could positively improve the OTP’s influence with Colombian authorities.
The international armed conflict in August 2008 between Georgia and Russia over South Ossetia—a breakaway region of Georgia that maintains very close ties with Russia, with which it shares a border—left a trail of devastation in its wake. The week-long conflict, and the many weeks of rampant violence, along with insecurity in the affected districts, cost hundreds of lives on all sides, resulted in the forced displacement of about 20,000 ethnic Georgians from South Ossetia, and caused extensive damage to civilian property.
On August 14, 2008, then-prosecutor of the International Criminal Court (ICC), Luis Moreno Ocampo, announced that the situation in Georgia, an ICC member country, was under analysis by his office. However, it was not until seven years later, on October 13, 2015, that the current ICC prosecutor, Fatou Bensouda, sought approval from the court’s judges to open an investigation in Georgia.
Georgian authorities, under two successive governments, committed to carrying out national investigations, but, on March 17, 2015, the government informed the Office of the Prosecutor (OTP) that further progress was halted because of “a fragile security situation in the occupied territories in Georgia and in the areas adjacent thereto, where violence against civilians is still widespread.”
The prosecutor’s application to the judges seeking authorization of an investigation followed several months later, and, on January 27, 2016, the ICC’s judges approved the opening of an investigation into “events related to the conflict in and around South Ossetia between 1 July and 10 October 2008.”
In Georgia, the OTP’s main focus was the assessment of the scope and progress of investigations in Georgia and Russia. With a view toward avoiding manipulation of the ICC’s mandate—given interest by each side in an ICC investigation on its own terms—the OTP stressed that any ICC investigation would be impartial. The preliminary examination and the OTP’s regular engagement with authorities in Georgia does appear to have spurred a certain amount of investigative activity. Ultimately, however, the absence of effective national proceedings led to the ICC’s decision to open an investigation.
This chapter reviews the domestic investigations opened in Georgia and the OTP’s approach to its engagement in the country. It then assesses a number of stumbling blocks in the domestic investigations, before evaluating the OTP’s influence on national justice efforts in Georgia in light of these obstacles.
It concludes that there were a number of factors that limited the OTP’s influence on national accountability efforts, in part because of the very limited political will of the Georgian government to see national accountability. Nonetheless, the chapter draws lessons, particularly with regard to the importance of strengthened engagement between the OTP and other relevant actors, including media, civil society, and international partners. These lessons may be particularly relevant to expediting the OTP’s assessment of its own jurisdiction, leading to an earlier decision to seek to open investigations.
Finally, although there have been national proceedings in Russia too, this chapter looks exclusively at the OTP’s engagement with Georgian authorities, in part because of our limited access to the relevant government sources in Russia, while referring below to how the cross-border context here presented unique challenges for complementarity.
B. The 2008 Georgia-Russia Conflict
Georgia’s breakaway region of South Ossetia maintained very close ties with Russia. On August 7, 2008, after months of escalating tensions between Russia—which had long stationed “peacekeeping forces” in South Ossetia—and Georgia, and following skirmishes between Georgian and South Ossetian forces across South Ossetia’s administrative border, Georgian forces launched an artillery assault on Tskhinvali, South Ossetia’s capital, and outlying villages.
Assaults by Georgian ground and air forces followed. Russia’s military response began the next day, culminating in the occupation of several key cities in undisputed Georgian territory. South Ossetian forces consisting of several elements also participated in the fighting, which continued until an August 15 ceasefire agreement between Russia and Georgia, which the French European Union presidency brokered.
Despite the ceasefire, looting and torching of ethnic Georgian villages in the conflict zone continued intermittently through September, and in some cases through October and November. Russian forces claimed to have completed their withdrawal from undisputed Georgian territory on October 10, in accordance with the ceasefire.
Research by Human Rights Watch and other domestic and international nongovernmental organizations, as well as an EU fact-finding mission, found that Georgian, Russian, and South Ossetian forces violated international human rights and humanitarian law. The violations included indiscriminate attacks on civilians by the Georgian and Russian militaries and a widespread campaign of looting and burning of ethnic Georgian villages, along with ill-treatment, beating, hostage-taking, and arbitrary arrests by South Ossetian forces. The Russian military—which was an occupying power in Georgia—failed to prevent or stop violations by the Ossetian militia.
C. Overview of Georgia’s Criminal Investigation
Georgian authorities launched investigations under two successive governments, but these did not yield prosecutions. There have been no prosecutions in Georgia for crimes committed during the conflict, whether by Georgian, Russian, or Ossetian forces.
The Georgian authorities initially reacted very quickly following the outbreak of conflict. Under the government of then-President Mikheil Saakashvili, on August 9, 2008, authorities opened an investigation into allegations of genocide and violations of humanitarian law in armed conflict, followed by a second investigation on August 11 into looting as a war crime.
The Office of the Chief Prosecutor of Georgia (the General Prosecutor’s Office) assembled a large team to obtain as much information as quickly as possible, according to a former official. A government official said that a special department was established within the General Prosecutor’s Office to facilitate cooperation with Russian officials. Another official who reviewed the investigation files told Human Rights Watch that there was a significant amount of fact-finding done in the first six months of the investigations. These investigations were both opened before the August 14, 2008 announcement by the OTP that the situation in Georgia was under analysis.
In 2009, the chief prosecutor of Georgia transmitted both investigations to the Investigative Division of his office, where they were consolidated into one covering all crimes during the August 2008 armed conflict and its aftermath. The genocide investigation was soon dropped as being “manifestly ill-founded.” Moreover, the lack of access to South Ossetia hampered fact-gathering, limiting the scope of the investigation.
Through 2010, the officials in the national investigation reportedly identified South Ossetian suspects but did not proceed.  In December 2011, the Georgian government told the OTP that it still needed “certain verifications and corroborations […] to attain charges,” without providing further details about the timeframe.
An official in the General Prosecutor’s Office told Human Rights Watch that there were draft indictments to file charges against the de facto authorities in South Ossetia, but moving ahead brought a serious risk of backlash, as the South Ossetians would “exact revenge and kidnap more […] people.” The investigators were also concerned that they had insufficient expertise in international humanitarian law to properly evaluate the evidence and sought to obtain personnel with such expertise.
In the October 2012 parliamentary elections, the opposition Georgian Dream coalition defeated President Saakashvili’s political party and formed a new government. The new government committed to renewing the probe into the 2008 war. But in October 2012, the new chief prosecutor restructured and reorganized the office, causing delays in the investigation. By the end of 2012, the General Prosecutor’s Office had informed the ICC that its investigation into acts allegedly committed by the Georgian military were hindered by the lack of access to the crime scene—since there was no access to South Ossetia—and lack of cooperation from Russia and South Ossetia.
The investigation seemed to gather momentum in the first half of 2013, culminating in the chief prosecutor announcing in May 2013 that his office would relaunch investigations into alleged crimes committed by all sides during the August 2008 conflict.
Between November 2013 and January 2014, the government replaced the chief prosecutor twice, once again stunting the investigation’s progress. By June 2014, the OTP showed signs of losing patience, telling Georgian authorities to provide “concrete, tangible and pertinent evidence” about genuine national proceedings against those most responsible for crimes, or the office would ask ICC judges to authorize an investigation.
Towards the end of 2014, the OTP concluded that, based on the information available, both Russia and Georgia were ostensibly making progress towards prosecutions. But at the end of 2014, the OTP flagged in its annual report on preliminary examinations that “progress in [the Georgian and Russian] investigations appears limited, and more than six years after the end of the armed conflict, no alleged perpetrator has been prosecuted, nor has there been any decision not to prosecute the persons concerned as a result of these investigations.”
Even so, the OTP was receiving information from the Georgian government as late as January 2015 that indicated it had progressed in its investigation to the point of deciding whether to prosecute.
Nonetheless, in March 2015, the Georgian government informed the ICC that further progress was not possible due to the fragile security situation in and around the occupied territories in Georgia, and fears that prosecutions could trigger “aggressive and unlawful reactions by the occupying forces.” The government also said that the precarious security situation could undermine the security of witnesses of alleged crimes, who could face threats and arbitrary detention by South Ossetian authorities.
D. OTP’s Approach to Georgia’s National Justice Efforts
In the first two years of the ICC’s preliminary examination, the OTP focused on assessing whether the court had subject matter jurisdiction over the crimes alleged during the 2008 conflict. As part of this analysis, the OTP concluded that the alleged crimes, which included the forcible displacement of 75 percent of the ethnic Georgian population from South Ossetia, were sufficiently grave under the Rome Statute.
From an early point, however, and consistent with its approach at that time to preliminary examinations, the OTP engaged with national authorities regarding domestic proceedings, given that both sides indicated they intended to pursue investigations. While there were domestic investigations in both Russia and Georgia, each side had an interest in pushing forward its version of events and painting the other side as being at fault.
As a result, the office was aware of the possible risk of being used by both sides. The office did engage with national authorities regarding the importance of national justice, but the focus was on pressing the Georgian and Russian authorities to broaden the scope of their respective national investigations to include allegations against their own service members, an important metric of the impartiality and genuineness of the national efforts.
Through the course of the preliminary examination in Georgia, representatives of the OTP visited Georgia six times: in November 2008, June 2010, March 2013, September 2013, April 2014, and January 2015. The office also visited Russia three times: in March 2010, February 2011, and January 2014.
In the interim, the office maintained email and video link communication with staff in the General Prosecutor’s Office, although this did not generally involve conveying any sensitive information given concerns about secure transmission. During the visits, OTP officials met with government officials and staff from the General Prosecutor’s Office, and sometimes with civil society representatives. As discussed further below, these visits for the most part lacked a public dimension.
Every year, the ICC sent one to two-page questionnaires to the relevant authorities. The questionnaires were very specific and aimed at measuring progress in investigations, and included questions relating to forensic evidence, satellite images, and witnesses questioned. Georgian authorities sent lengthy progress reports, sometimes 30 to 40 pages long.
The OTP confirmed that the responses were relatively detailed, but it was difficult at certain points in time to assess the validity of the information. Indeed, as discussed below, civil society formally expressed concern to the OTP about the state of national investigations.
E. Stumbling Blocks in National Investigations and Prosecutions
1. Georgia-Russia Relationship
The unresolved nature of the Georgian-Russian conflict over South Ossetia and longstanding mutual distrust between Moscow and Tbilisi created significant obstacles to national investigations.
Georgia and Russia severed all diplomatic ties following the August war, further complicating efforts to cooperate on legal matters. For example, on the Georgian side there were concerns that Russian authorities were sending witness statements that were falsified or otherwise less than credible. The OTP noted Georgia’s claims about Russia’s limited cooperation in its Request for Authorization. The OTP similarly noted Russia’s claim that it could not proceed with its national investigation because Georgia refused to provide legal assistance and because of the immunity of Georgian officials. However, in January 2014, Moscow claimed that these obstacles ceased to exist after the new government came to power in October 2012.
This atmosphere undermined the limited cooperation between Georgia and Russia in their respective criminal investigations. At various stages, both Georgia and Russia issued invitations for victims of the other country to give testimony in their national investigations. However, Russia and Georgia refused each other’s invitations. Georgia, in particular, was concerned about the treatment of its victims in Russian proceedings. The General Prosecutor’s Office of Georgia unsuccessfully tried to organize video conferencing with its Russian counterpart to resolve this impasse.
The OTP tried to use a pre-existing cooperation mechanism on civil matters to promote mutual legal assistance, in response to complaints that neither side was cooperating with the other in its own investigations. The OTP had also informally encouraged cooperation between the Russian and Georgian judiciaries. Ultimately, however, these strategies were unsuccessful.
2. Lack of Expertise and Resources
Several civil society activists expressed concern to Human Rights Watch about the limited resources within the General Prosecutor’s Office in Georgia to conduct investigations.
An official in the office acknowledged that at the end of 2010, when the evidence collection was ostensibly completed, those responsible for the investigation saw gaps in international humanitarian law expertise and decided to engage people with this knowledge. A former official in the prosecutor’s office shared the view that more assistance on international humanitarian law, international criminal law, and military expertise, as well as help in obtaining satellite imagery, would have been useful. The OTP, at the request of the prosecutor’s office, provided a presentation on the elements of crimes against humanity and its approach to the investigation of such crimes.
More broadly, the EU Special Advisor on Constitutional and Legal Reform and Human Rights in Georgia Thomas Hammarberg noted the “little developed” investigation skills among prosecutors and expressed concern about the abrupt turnover of chief prosecutors since October 2012, which “slowed down the institutional strengthening.”
3. Limited Political Will
Notwithstanding the above capacity challenges and the difficulty of assessing the information that Georgian authorities provided, the OTP did not have significant concerns that, at least through 2012, there was a lack of genuine will to at least investigate.
Georgian authorities tried to address gaps in knowledge by engaging experts in international humanitarian law and the elements of crimes. In addition, although the precarious security situation and lack of access to crime scenes in South Ossetia hindered Georgian authorities’ capacity to investigate, the OTP did not see the lack of access, in and of itself, as precluding investigation. Rather, in the OTP’s view, the primary obstacle to further progress at the national level was authorities’ lack of willingness to move forward with prosecutions.
Our research confirmed this view.
Interlocutors interviewed for this report pointed out that, after the war, there was a strong narrative in Georgia of it being a victim of Russian aggression, which it sought to broadcast internationally. The ICC was only one such opportunity.
In August 2008, the Georgian government filed an interstate complaint against Russia at the International Court of Justice in The Hague seeking a declaration that Russia was in violation of its obligations under the International Convention on the Elimination of Racial Discrimination (ICERD), and asked for compensation. In April 2011, the ICJ dismissed the complaint because it lacked jurisdiction since Georgian authorities had not first sought to negotiate a solution with Russia before lodging its complaint.
In February 2009, Georgia lodged a formal complaint before the European Court of Human Rights (ECHR) in Strasbourg, alleging that Russia allowed, or caused to develop, an administrative practice through indiscriminate and disproportionate attacks against civilians and their property in two autonomous regions of Georgia, Abkhazia, and South Ossetia, by Russian military forces and the separatist forces under their control. There is also a large number of individual applications against both Georgia and Russia in relation to the conflict pending before the ECHR.
Initially, both sides—Russia and Georgia—were interested in pushing their respective narratives about the conflict to the ICC. However, the relationship of both countries with the ICC quickly evolved into one of ambivalence. Once it became clear that the ICC would investigate impartially, which included allegations against their respective service members, sources outside of these governments indicated that both sides appeared to lose interest in the ICC.
A number of civil society activists interviewed by Human Rights Watch shared the view that ultimately, it was the government’s unwillingness that was the primary obstacle to further progress on national accountability for crimes committed during the 2008 war. The government did not want to pursue a track that could potentially damage Georgia’s interest, which included prosecuting members of its own military.
This lack of enthusiasm for accountability for crimes continued under the new government. After the late 2012 parliamentary elections, which led to a change of government in Georgia, several sources flagged the government’s initial enthusiasm to investigate its predecessor’s role in the 2008 war. This enthusiasm soon waned. One source pointed to the new government’s foreign policy objective of thawing relations with Russia as a reason to abandon a full investigation. Another source flagged the pervasive view in Georgia of Russia’s responsibility for the 2008 war that persisted under the new government.
F. OTP’s Engagement with National and International Actors on Political Will
The OTP’s opening of the preliminary examination coincided with a certain level of investigative activity in Georgia. By engaging with authorities and insisting on regular updates, the OTP tried to address the risk that Georgia would not conduct impartial investigations into its own service members. The OTP also relied on Georgia’s political partners to impress upon the government how important it was to ensure Georgians were also held accountable.
According to the OTP, its insistence on impartiality in investigations was at least one factor that helped generate results: once Georgian authorities realized that the ICC investigation would not be limited to one side, the national investigation broadened in scope to include allegations against Georgian service members.
And yet, investigations in Georgia did not lead to prosecutions, given, as outlined above, the absence of political will to move forward.
In Georgia, our research suggests that barriers to political will to support prosecution—including, when it came to South Ossetian or Russian forces, the international dimension of the conflict—meant it was unlikely that the OTP could have significantly shifted this landscape. Below we assess factors limiting the OTP’s impact on the political will necessary to support national justice in Georgia. Our analysis suggests, however, that different forms of engagement by the OTP might nonetheless have made this lack of political will more transparent, enabling it to expedite the preliminary examination and seek authorization for its own investigation at an earlier point in time.
1. Weak Domestic Demand for Accountability
Georgia’s human rights ombudsman, the Office of the Public Defender of Georgia, repeatedly tried to draw public attention to the situation and the ongoing investigations in its annual Parliamentary Reports.
For example, in 2013, the ombudsman observed in its annual report that the General Prosecutor’s Office’s 2008 investigation had not yet produced results. It recommended that the investigation “be conducted effectively, in a short time period.” Similarly in 2014, the ombudsman recommended that the General Prosecutor’s Office conclude its investigation “effectively and in the shortest time possible.” The 2015 Annual Report described the OTP’s Request for Authorization, and the granting of that application by the ICC, as “[a]n important event.”
Overall, however, Human Rights Watch heard from a number of sources that the demand for accountability for the 2008 conflict was weak. One source noted that the crimes committed during Georgia’s ethnic conflicts with breakaway Abkhazia and South Ossetia in the early 1990s still have not been addressed. In this context, “accountability [for 2008 crimes] doesn’t mean much,” as it was an abstract concept with no expectation as to what accountability could actually deliver.
Another activist agreed that accountability after the 2008 conflict was a “non-issue.”
Some of those interviewed attributed this to the view held by many victims that there was no way officials from Russia and South Ossetia, the perceived aggressors in the conflict, could ever be brought to justice. Still others told Human Rights Watch that victims, especially those who were displaced, were more concerned with returning home.
There was also little awareness of the ICC in Georgia; victims’ support organizations were more invested in submitting applications to the European Court of Human Rights. The Strasbourg court already had a track record among Georgians in holding Russia to account: in 2014, the court found that in the autumn of 2006, Russia implemented a coordinated policy of arresting, detaining, and expelling Georgian nationals, in violation of the European Convention on Human Rights, to which Russia is a party. In addition, although the ICC provides for reparations in event of a conviction, it had no track record yet in this regard. In contrast, cases under the ECHR regularly result in orders of compensation.
With regard to broader public opinion, there was a sense among some activists that there was no public pressure on the government to take concrete action. In light of the prevailing nationalistic atmosphere in the country detailed above, this is unsurprising.
2. Limited Engagement with Partners
Civil society organizations in Georgia faced challenges pressing for justice at the national level. Notably, a coalition of five NGOs produced a comprehensive report, “August Ruins,” which detailed grave human rights abuses committed during and immediately after the August 2008 war. The OTP acknowledged the high quality of the reporting by Georgian civil society.
However, despite important efforts to document abuses, a human rights lawyer told Human Rights Watch that under the previous government, civil society organizations were not a real source of pressure, limiting how effective civil society could have been on national justice.
To dismiss civil society’s pressure for accountability, Saakashvili’s government used nationalistic rhetoric, questioning NGOs’ allegiances and undermining their credibility.
When NGO representatives asked for effective investigations into crimes committed during the conflict, the government “demonized” the NGO sector, and accused civil society of “backing Russia.” Those who worked on cases involving allegations of abuse by Georgian servicemen were considered “traitors,” while those attempting to cooperate with Russia’s investigation were labeled “enemies of the state.” Another observer confirmed that especially after the war and through 2009, those who called into question the conduct of Georgia and its military were considered traitors.
In spite of this pressure on civil society, a number of NGOs continued to work actively. But their lack of access to information about the investigations created real obstacles to making the most of what leverage they could have had.
Of course, there are limits to what can be revealed in the course of a confidential criminal investigation, in part to avoid compromising the safety of those involved, protecting the due process rights of suspects and others, or tipping off those under investigation.
However, general information about investigative steps, such as the number of people interviewed or crime scenes investigated, and efforts to engage forensic or other experts as needed, can help demonstrate the scale of the investigation and its seriousness. Regular reporting of this kind of information can be essential to measure whether, and how much, progress has been made. Over time, this analysis could give civil society and others, including diplomats, traction to press the government on the genuineness of its national accountability efforts.
Local civil society groups made concrete, albeit ultimately unsuccessful, efforts to press the government to shed more light on national accountability efforts. In September 2012, a group of seven NGOs raised concern that for more than three years “no information whatsoever has been available to the victims, their legal representatives, the public or other interested parties about any national investigations being undertaken.”
One civil society activist told Human Rights Watch that the only place to get information about the national investigations in Georgia was in the OTP’s annual reports on preliminary examinations.
Among the recommendations made in their 2012 letter, the groups urged then-ICC Prosecutor Luis Moreno Ocampo and his deputy (and current ICC prosecutor), Fatou Bensouda, to “strengthen the dialogue with the Georgian and Russian governments on the status of the investigations undertaken at the national level and to insist … that the progress and outcomes of national investigations are available to the public.”
The OTP told Human Rights Watch that the issue of transparency was raised in private meetings with the Georgian prosecutor. However, aside from citing the NGO letter in its 2012 report on preliminary examinations, the OTP does not reference the need for more transparency about investigative steps at the national level in its public statements. None of the OTP’s preliminary examination reports provide general statistics about investigative steps taken by the Georgian authorities.
It was not until the October 2015 application to the Pretrial Chamber for authorization to open an investigation that the OTP made this information public. There, the OTP reported that in the course of its investigation the Office of the Chief Prosecutor of Georgia reportedly interviewed over 7,000 witnesses, and conducted a number of concrete steps, including: on-site investigations in over 30 affected areas; forensic medical and property analyses; collecting telephone intercepts; gathering various public statements and intelligence reports by South Ossetian authorities; and seeking satellite imagery to identify destroyed property in South Ossetia.
The lack of information available to NGOs about the status of investigations weakened their leverage with the OTP, which did not consider them to be best placed to assess proceedings or to push the government on accountability.
Some civil society activists had the impression that the OTP’s engagement with NGOs was not a priority. As a result, one activist told Human Rights Watch that NGO interest in the ICC “faded away” with the lack of information from the OTP.
The key diplomatic players in Georgia, including the United States, the European Union, and the Council of Europe, devoted some political capital to pressing Georgian authorities on justice for crimes committed during the 2008 conflict. Overall, however, these efforts and, unsurprisingly, results have been limited.
As discussed earlier, in December 2008 the EU funded the independent fact-finding mission to examine “the origins and the course of the conflict ... with regard to international law, humanitarian law and human rights, and the accusations made in that context.” However, the EU distanced itself from the report’s findings even before it was released in September 2009 by limiting its support to funding.
The report quickly became politicized, with Moscow and Tbilisi picking parts of the report about the other’s violations and using it for propaganda. The EU missed an opportunity to advance justice when it failed to more forcefully claim a sense of ownership over the report and use it to push for domestic accountability for international humanitarian law violations in bilateral relations with Tbilisi and Moscow.
The report concluded that “despite a long period of increasing tensions, provocations and incidents,” open hostilities began by the shelling of Tskhinvali by Georgian armed forces during the night of August 7. The report also concluded that “evidence of systematic looting and destruction of ethnic Georgian villages” suggests that “ethnic cleansing was indeed practiced against ethnic Georgians in South Ossetia.” International media, especially key European outlets, focused heavily on the conclusion about who started the war, while Georgian leadership focused on ethnic cleansing elements of the report. Although the report detailed human rights violations by all sides and included some accountability recommendations, there was very little follow up. One civil society activist observed that the EU report was “soon forgotten.”
One way that the EU could have followed up the findings of the independent commission would have been to regularly include its recommendations in bilateral talks with Georgia. In 2009, the EU and Georgia initiated a human rights dialogue, a biannual meeting providing an opportunity to recognize progress and raise issues of concern by Brussels and Tbilisi. This was also an opportunity, albeit limited, for the EU to periodically raise national justice efforts and the ICC.
Although the human rights dialogues are held in private, they are usually followed by a press release with limited details on the substance of the discussions. The press releases have alluded to the war and have periodically expressed concern with regard to the “human rights situation” in the region of South Ossetia and Abkhazia but did not specifically refer to the ICC’s preliminary examination or the need for accountability.
The EU was heavily engaged in pressing for judicial reform in Georgia. However, such support does not include a strong emphasis on strengthening domestic accountability efforts for crimes committed during the 2008 war. The EU’s 2007-2013 strategy for Georgia identified criminal justice reform as a priority but did not focus on building ties with the ICC or capacity to support national investigations through technical assistance.
In 2013, after the change of the government in Georgia, the EU hired Thomas Hammarberg as special adviser on constitutional and legal reform and human rights in Georgia. In his 2013 report, Hammarberg highlighted, among other issues, the overarching challenges facing Georgia’s judicial system and flagged the need for improvement in delivering justice. In 2014, Hammarberg issued follow-up recommendations to the Georgian authorities on judicial reform and other areas but did not reference the need for accountability for crimes committed during the August 2008 war.
The Association Agenda between the EU and Georgia, which provides a list of priorities for joint work between 2014 and 2016, states that Georgia should cooperate with the ICC “with respect to August 2008 war investigations.” The agenda also outlines a number of priorities to strengthen the justice sector overall, including strengthening judicial independence and reforming the prosecutor’s office, which could benefit the adjudication of all crimes, including those committed during the war. However, there is no reference to Georgia’s August 2008 war investigations.
The OTP indicated accountability was not an issue that was at the top of the international community's agenda. A diplomat confirmed that justice was not really a topic in the first few months after the conflict, as the immediate focus was on addressing the humanitarian crisis that emerged following the mass displacement from South Ossetia. Moreover, there was little appetite, or space, to challenge the government’s narrative—which was also reflected in broader society—of Georgia as a victim.
In the absence of stronger messages from international partners about the importance of national justice, the OTP was left as the only actor raising the issue of accountability on a regular basis.
National and international media can be vital levers to pressure the government to act. However, in Georgia, as a human rights lawyer put it, the previous government was not sensitive to local media; there were only a few objective channels and the government did not pay attention. Another activist raised doubts about the objectivity of media in Georgia and, in any event, until the ICC prosecutor filed an application to investigate in Georgia, the media was not really interested in the aftermath of the 2008 war. At the same time, President Saakashvili’s government was sensitive to international opinion.
The OTP’s engagement with national and international media on the Georgia situation was extremely limited, possibly missing an opportunity for the preliminary examination to add pressure on authorities to act.
After the OTP confirmed that the situation in Georgia was under examination, it issued three press releases between 2008 and September 2015 in relation to the Georgia situation: one in March 2010 after a delegation of Georgian officials visited The Hague; another in June 2010, after the office visited Georgia; and a third in February 2011, following a visit by the office to Russia. All other reporting about the Georgia situation took place in the office’s yearly reports on preliminary examinations, which began in 2011.
The press releases welcomed the cooperation of the Georgian and Russian governments, respectively, but did not reference any concerns about the pace or scope of investigations. In its 2014 preliminary examination report, the office began to express concern about the pace of the investigation and raise doubts about the genuineness of Georgia’s justice efforts.
An OTP staff member explained that, had the OTP engaged with media, it may have been seen as confrontational, possibly compromising the OTP’s attempts to build trust with the Georgian government. Furthermore, the OTP did not want to disclose confidential information given to it by the Georgian authorities, who were particularly concerned that Russia would learn about this information. Additionally, the OTP considered that there was little interest from the public in its involvement in Georgia.
The ICC’s seven-year long preliminary examination into crimes in Georgia unfolded amid a complicated political landscape. The OTP found itself in the difficult position of evaluating crimes committed during an international armed conflict and assessing proceedings in two countries to address possible criminal conduct of three sides. The political landscape in Georgia, consumed by nationalist rhetoric in the aftermath of the conflict, limited the space for civil society and other partners to press for national accountability.
The change in Georgia’s government in 2013 raised a further obstacle to any effort to press national authorities on justice given upheaval within the prosecutor’s office and changing political interests.
Nonetheless, the ICC’s preliminary analysis did have some impact on national accountability efforts in that, at least according to the OTP, its emphasis on impartiality sparked increased efforts in Georgia to investigate the actions of its own service members. Ultimately, however, Georgia proved to be unwilling to move beyond investigations toward prosecutions.
Overall, the OTP’s engagement with various actors and dynamics within Georgia was limited. While there were objective obstacles to national accountability, our research suggests that the OTP missed some opportunities to more proactively assess the government’s political will. A more robust approach by the OTP could have led the office, at the very least, to open an investigation sooner.
While the length of the preliminary examination was, in part, affected by the OTP’s need to assess proceedings in two different states, it was also affected by the OTP’s preference at the time for “uncontested admissibility.” That is, it preferred to proceed with Article 15 requests to authorize investigations when the potential cases identified appeared clearly admissible.
It may have been difficult in the court’s earliest years for the OTP to predict just what it would need to show the judges to satisfy the statute’s admissibility requirements. It was only with the first article 15 investigation, in Kenya, where judges had the opportunity to clarify what admissibility would look like at this phase of proceedings, namely, as indicated above, that it would be measured with regard to potential cases, rather than a more abstract assessment of the situation as a whole. While waiting for a clear indication of domestic inaction may have improved the OTP’s chances before the judges, it can also lead to delay in ICC action without corresponding progress nationally.
The OTP has indicated that it is moving away from a clear preference for “uncontested admissibility.” But as one source told Human Rights Watch, with regard to Georgia, “if you wait for the government to make that statement [on inability], it may never come. If you [the government] believe that you can postpone responses, then you do it.”
As an alternative, strengthened or different forms of engagement with civil society groups and national and international media by the OTP, as well as stronger, independent approaches by Georgia’s international partners, could have made the shortcomings or inaction on the part of both the Saakashvili and the successive governments more transparent, bolstering the OTP’s ability to prove the admissibility of potential cases before the ICC, even without an official government confirmation of inaction.
First, the OTP potentially missed an opportunity to strengthen the hand of national civil society partners by more openly pressing national authorities to be transparent about progress in its investigations. Even without divulging confidential information, such information could have given civil society more traction in putting pressure on the government to show results and be more up front about the lack of domestic progress at an earlier stage. It might have also strengthened their standing to raise concerns about a lack of progress with other partners, for example, the EU, which, in turn, might have strengthened its own approach to the government on justice.
Second, in the face of the “pressure void” on Georgian authorities noted by civil society, the OTP could have used international media more effectively to convey to the Georgian government the importance of making concrete progress in its cases. The few press releases on the Georgia situation welcomed assurances of Georgian and Russian authorities to cooperate with the ICC but did little to urge the governments to move forward. While the OTP’s yearly reports on preliminary examinations offered a few more details about the status of national investigations, it was not until late 2014, more than six years after the conflict, that the office began to voice serious concern about lack of progress.
The OTP is not the only relevant actor when it comes to positive complementarity, and, indeed, is unlikely to be successful in isolation. Georgia’s international partners, notably the EU, could have been more consistent and vocal in support for accountability, and used leverage to press for more information from the government. Indeed, pressing the authorities on the importance of showing progress in August 2008 investigations and urging transparency on the investigative steps taken could have better supported both the ICC in its analysis and civil society in pressing for accountability for August 2008 crimes. At the very least, this could have supported efforts by civil society and others to urge the government to show its hand much sooner.
On September 28, 2009, Guinea’s security forces opened fire on tens of thousands of opposition supporters peacefully gathered at a stadium in Conakry, the country’s capital. Some 150 Guineans were killed, and dozens of women suffered brutal sexual violence perpetrated by members of the security forces. An international commission of inquiry concluded that the crimes amounted to crimes against humanity, as did Human Rights Watch.
On October 14, 2009, the International Criminal Court (ICC) announced that the situation in Guinea was under preliminary examination. Six days later the Guinean foreign minister visited the ICC and indicated to the court that Guinea would ensure justice for the September 2009 crimes through its national courts.
Guinea has since made major strides in pursuing justice for the crimes: in the most significant development, in December 2017, the justice minister announced that an investigation into the crimes by a panel of judges was complete. During the investigation, judges took testimony from hundreds of victims, interviewed members of the security forces, and brought charges against high-level suspects. The case has now been referred to a court of first instance in Conakry for trial.
Progress to date has surpassed local expectations of what could be achieved in Guinea’s domestic justice system.
At the same time, the judges’ investigation was halting, and any trial has yet to start more than eight years after the investigation opened.
The ICC has pursued a robust program of activity to help promote justice for the September 2009 crimes, as one of several relevant international and domestic actors, with particularly strong efforts by victims, civil society, and the Office of the UN Special Representative of the Secretary-General for Sexual Violence in Conflict. Their collective efforts—combined with changes in Guinea’s political landscape and the commitment of the judges tasked with investigating the crimes—appear to have contributed to the significant progress in the case.
The ICC appears to have generally galvanized progress over time and contributed to the resolution of several specific challenges the investigation faced. As discussed below, the Office of the Prosecutor’s (OTP) strategy of active encouragement and close scrutiny of progress in the investigation, regular visits to implement its strategy, benchmarking of needed steps in the investigation, and strategic alliances have been particularly important.
The OTP’s engagement with Guinean authorities has also met with criticism from some civil society activists who are concerned that the ICC is offering legitimacy to an investigation that will never result in meaningful prosecutions. The Guinea example highlights that where progress on national justice is slow, the OTP could risk being perceived as legitimizing government inaction or undermining its own mandate. This underscores the need for the OTP to employ specific strategies to mitigate these risks.
After setting out some brief background regarding the September 28 stadium massacre, this chapter describes the evolution in the domestic investigation and identifies a number of contributing factors to progress in the investigation, including the role of the OTP. It then turns to a closer examination of the OTP’s role and an evaluation of its engagement with key strategic partners on complementarity, before drawing lessons learned for future practice.
B. September 28 Stadium Massacre
On September 28, 2009, several hundred members of Guinea’s security forces burst into a stadium in Guinea’s capital, Conakry, and opened fire on tens of thousands of opposition supporters peacefully gathered there. The demonstrators had gathered to protest the decision by the then self-proclaimed president, Capt. Moussa Dadis Camara, to run in elections planned for 2010. By late afternoon, at least 150 Guineans lay dead or dying in and around the stadium. Dozens of women at the rally suffered sexual violence by security forces, including individual and gang rape and sexual assault with objects such as sticks, batons, rifle butts, and bayonets.
In the hours and days after the stadium violence, heavily armed soldiers dressed in camouflage and wearing red berets, and civilians armed with knives, machetes, and sticks, committed scores of abuses in those neighborhoods where the majority of participants in the September 28 rally lived. Many women endured days of sexual assault after being detained at or near the stadium.
A Human Rights Watch investigation found that the killings, rapes, and other abuses rose to the level of crimes against humanity. A commission of inquiry established by the UN secretary-general had similar conclusions.
C. Evolution of the Domestic Investigation
On October 14, 2009, the ICC announced that the situation in Guinea was under preliminary examination. In response, the then-minister of foreign affairs traveled one week later to The Hague to meet with the ICC Office of the Prosecutor, where he told then-ICC Deputy Prosecutor Fatou Bensouda—as reflected in an ICC press release issued the day after the meeting—that Guinea’s justice system was “able and willing” to handle the investigation and prosecution of the stadium crimes domestically.
Within four months, in early 2010, and just days ahead of the ICC’s first visit to Guinea, a Guinean prosecutor assigned a three-judge panel to investigate the crimes committed around September 28, 2009. These developments suggest one important apparent effect of the ICC’s intervention in Guinea: its initial engagement and first planned visit may have spurred the formation of the panel to investigate the 2009 crimes.
Since its first visit in 2010, the ICC has conducted regular visits to Guinea—averaging roughly twice a year—to assess progress in the investigation and press for further advances. During these visits, OTP officials meet with government representatives, the panel of investigative judges, civil society, the donor community, and media. During some visits, the OTP has held press conferences and issued press statements. On a small number of occasions, the prosecutor has also met with Guinean President Alpha Condé.
As indicated above, the case has made significant progress: judges have taken statements from hundreds of victims of abuses, interviewed members of the security forces, brought charges against high-level suspects, and concluded their investigation. But there have also been several periods since 2009 during which activity by the judges drastically slowed or ground to a halt. These periods, which lasted several months each, included the periods preceding and directly following elections: the tense-presidential elections of 2010, the parliamentary elections of 2013, and the presidential elections of 2015. Work also basically ceased from May to September 2012, as discussed below.
In its first two years, the investigation focused on interviewing victims and their families, as one of the less sensitive aspects of the investigation, and some 450 victims have been interviewed since 2010. Many of these individuals are involved in a partie civile action to the investigation.
In advance of the 2010 presidential election, the work of the investigative judges faced security challenges when a floor of the building in which the panel was housed was allocated to a special unit comprised of gendarmes and police tasked with providing election security. After considerable pressure—including by the ICC and civil society groups, as discussed in Part E—the judges’ offices were in September 2011 moved to the Court of Appeal.
The charging of suspects began in 2010, although judges largely did not charge higher level suspects until 2012. This changed in February 2012, when Moussa Tiégboro Camara was charged. Camara had expressed interest in appearing before the judges, which some observers suggested led to this breakthrough. Tiégboro Camara is Guinea’s minister in charge of fighting drug trafficking and organized crime, a post he has held since early 2009.
Investigations were essentially suspended, however, from May to September 2012, due to serious shortcomings in resources available to the panel of investigative judges. During this period of suspended work, the OTP began to seriously contemplate submitting a request to the ICC judges to open an investigation in Guinea, and set a six-month window in which progress would need to be made for Guinea to avoid making such a request. The OTP communicated with Guinean officials about the six-month window in which progress needed to be made, including with a letter to President Condé in July 2012 raising concerns about lack of progress and inadequate support for the investigation.
The OTP specifically raised the importance of additional financial resources for the panel. Guinean government representatives assured OTP officials that such resources would be made available—which was acknowledged publicly by then-Deputy Prosecutor Fatou Bensouda. The government took months to begin to resolve the panel’s lack of basic supplies, but the panel ultimately received a computer, along with a weekly stipend, in September 2012, after which it resumed taking statements from victims.
The OTP also pressed for the appointment of an international expert—that had been offered by the Team of Experts on the Rule of Law/Sexual Violence in Conflict, within the UN Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict—to support the panel of investigative judges. After months of delay, in-depth consultations with the government, and revisions to the expert’s terms of reference, the former justice minister and president of the Supreme Court of Mauritania, Ahmedou Tidjane Bal, was appointed as the expert and began work in late 2012.
In June 2013, the panel of judges brought charges against Lt. Col. Claude “Coplan” Pivi. Pivi is Guinea’s minister for presidential security, a post he also held during the stadium massacre. This represented a qualitative step forward as Pivi was one of the highest-level suspect to be charged in the investigation and has been seen as a powerful figure in Guinea. The questioning of Pivi was cancelled later that month, however, when his supporters held protests around Conakry, and did not take place until September 10, 2014.
Progress was again slow in the second half of 2013 likely due to the holding of long-awaited and previously postponed parliamentary elections in September 2013, and continued lack of adequate financial and political support to the investigation by the Guinean government. Greater caution on the part of the panel of investigative judges following the protests around Pivi’s questioning likely was an additional factor.
The appointment of a new justice minister, Cheick Sako, who began his work in 2014, is widely credited with helping to energize progress in the investigation, as discussed further in Part D. Since Sako’s appointment, the number of security force members questioned increased, and more of them responded to judicial summons to appear for questioning.
In July 2015, the judges finally questioned former self-proclaimed President Moussa Dadis Camara—and then brought charges against him—more than four years after they first requested to question him in Burkina Faso, where he is in exile.
Activity in the investigation again slowed during the presidential election period, in which President Condé was reelected. In spite of expectations among civil society and Guinea’s international partners that the investigation would soon be completed, it progressed slowly—and did not close—in 2016.
In a major development, Abubakar “Toumba” Diakité, a suspect who had been on the run since December 2009, was arrested in Dakar, Senegal, on December 16, 2016. Toumba commanded Guinea’s presidential guard, also known as the Red Berets, at the time of the 2009 crimes. On March 12, 2017, Toumba was extradited from Senegal to Conakry, Guinea, where he is currently being detained. The panel of investigative judges questioned Toumba at the end of March 2017.
On November 9, 2017, the justice minister announced that the judges had concluded their investigation and handed the dossier over to the prosecutor for review. In December 2017, the justice minister announced that the investigation was complete and that the case had been referred for trial before a court of first instance in Conakry.
During the investigation, at least 14 individuals had been charged. Some suspects have been questioned without legal representation, contrary to international fair trial standards, and some suspects have been held in pretrial detention beyond the two-year limit under Guinean law. In addition, two suspects have remained in high-level government posts, and another has been appointed to a government post, despite calls by local and international civil society groups for them to be placed on administrative leave pending investigation.
D. Contributors to Progress
While progress in the investigation of the September 28, 2009 crimes has been very slow, the advances have surpassed local expectations and arguably represent the greatest progress in accountability for serious human rights violations in Guinea’s history.
Civil society activists told Human Rights Watch they had not believed an investigation in the domestic system would progress to the extent it has, particularly with the charging of such high-level suspects. One activist exclaimed in 2016: “Members of the military have been charged!” ; and one justice official indicated that several individuals who “[we] never could have imagined” would face charges for these types of crimes have indeed been charged.
Shifts in Guinea’s political landscape, and domestic and international pressure, appear to be significant factors in the progress that has occurred, alongside the commitment of the judges to advance the investigation. This part focuses on contributions by other actors beyond the OTP; the role of the OTP is detailed in Part E.
1. Shifts in Guinea’s Domestic Political Landscape
Progress in ensuring Guinea’s transition from 50 years of largely authoritarian military rule to more democratic rule is a key factor that appears to underlie progress in the investigation.
While violent and flawed, the largely free and fair 2010 elections, which brought President Condé to power, effectively signaled an end to decades of abusive military rule. The 2010 elections, as well as the similarly flawed though less violent 2015 elections, which elected Condé to a second term, are widely considered to have led to reducing the power wielded by the security sector in particular. This has been a major shift that has enabled victims to come forward in a trial largely implicating members of the security forces.
Discipline within and civilian control over the security forces have since 2010 progressively improved. Guinean authorities have demonstrated somewhat more willingness to sanction members of the security forces implicated in violations.
Under Condé’s leadership, the government has also been keen to improve Guinea’s international reputation after years of authoritarian rule, and showing Guinea to be a country that can avoid ICC investigation contributes to that improved reputation. When Condé was elected, he emphasized that change in Guinea must begin with an end to impunity and corruption. He later declared 2013 the “Year of Justice” and has continued to proclaim a commitment to fighting impunity, although progress in achieving these goals and even consistent emphasis on them in public comments has been mixed.
One Guinean justice official suggested that the case is a “test for the country” and a “test for Africa” to show that a country can try its former president for human rights violations before its national courts. Others suggested that Guinea moving forward in the case is a “question of sovereignty,” and there is a desire to avoid Guinea’s internal problems being judged outside of the country.
Another significant factor is the role played by current Justice Minister Sako. Interlocutors were unable to cite specific steps in the 2009 investigation that came about due to Sako’s appointment, but suggested that he has given greater political support to the investigation and contributed to its forward momentum. While the former justice minister expressed general support for the investigation, Sako has on numerous occasions articulated this commitment publicly and with more specifics, such as regarding funding for the panel’s work, and also has been more open to interaction with local civil society activists. In addition, he has presided over several important reforms that had been stalled prior to the 2013 legislative elections, which have served to strengthen the justice system more generally.
In addition, some international actors have suggested that President Condé has over time become increasingly more open to progress in the case.  The case creates political risks for the president, as some of the suspects are part of ethnic constituencies on which he has depended for support. President Condé notably began his second term in December 2015 and cannot run for a third term under Guinea’s Constitution.
Consistent with this trajectory, some Guinean justice practitioners told Human Rights Watch that, as of March 2016, they believed that political roadblocks to the investigation—such as inadequate resources and lack of responses to judicial requests to interview members of the security services—had been significantly reduced, and that the investigative judges largely benefitted from political will for the case to move ahead.
2. International and Domestic Pressure
Steps forward in the September 28, 2009 investigation, and by extension, the fight against impunity more generally, cannot be explained solely by shifts in Guinea’s political landscape, however. Progress in ensuring investigations and prosecutions of security force members implicated in many other human rights crimes, notably for the 2013 and 2015 election-related violence, continues to remain out of reach.
A range of international and domestic actors have repeatedly pushed for advances in the investigation. The efforts of civil society—including with victims through the partie civile action, the UN Office of the Special Representative of the Secretary-General for Sexual Violence in Conflict, and the ICC—stand out for their persistence and intensity. These actors have repeatedly and over a long period of time tracked progress and challenges in the investigation and insisted on justice for the September 28, 2009 crimes. They all have kept justice on the political agenda by issuing press releases praising progress and denouncing problems, and raising the issue with Guinean officials. Local civil society groups also have held demonstrations and commemorative marches, in addition to participating in the partie civile action with the International Federation for Human Rights (FIDH).
These interlocutors often have also reinforced each other’s efforts to focus attention on the need for continued progress and for certain specific challenges to be addressed, such as security and material support for the judges and the appointment of an international expert to support the investigative panel. Their efforts are explored in detail in Part E, with a particular focus on the relationship between the OTP and these other actors.
E. The Role of the OTP
The OTP has pursued a robust program of activity to promote accountability for the September 28, 2009 crimes in Guinea that includes: a strategy of active encouragement and scrutiny of domestic investigative steps; use of regular visits as a key tactic to advance the ICC’s overall strategy; deploying benchmarks to assess progress in national proceedings; and leveraging strategic alliances with international and domestic players.
From the beginning, reflecting the OTP’s earlier approach to positive complementarity, the OTP deployed a strategy of genuine encouragement—accompanied by pressure on government officials for progress—to promote investigation and prosecution of the September 28 crimes before domestic courts.
The approach was characterized by close monitoring of specific progress and hands-on, active engagement with Guinean authorities, bolstered by specific and public reminders that an ICC investigation would go ahead in the absence of justice at the local level. As discussed below, visits have been the primary, although not the exclusive, way in which this strategy has been implemented. There has also been a ratcheting up of pressure and scrutiny when progress is less robust.
Guinean government officials, civil society activists, and international observers have all pointed to the ICC as being a positive factor in ensuring progress in the investigation and being pivotal in keeping accountability for the September 28, 2009 crimes on the agenda more generally. Some of those interviewed also highlighted that the ICC can bring to bear a unique form of pressure because it could potentially open an investigation on the basis of inadequate progress in domestic accountability efforts.
OTP staff suggested that this approach was facilitated in Guinea by a couple of factors. First, the government was quite open to interaction and cooperation with the ICC, which made the approach possible. Second, the OTP was able to become more deeply focused on developments in the Guinea investigation as the crimes under consideration were limited to one incident and related developments over a few days. OTP staff suggested it is more manageable to closely follow developments involving a small set of incidents and one investigation than situations involving many incidents and multiple investigations.
This approach included regular exchange with local officials and other domestic and international players with the aim of increasing the likelihood of positive progress in the investigation.
The approach has been controversial at times within Guinea. Local activists were initially concerned that the Guinean justice system would never deliver justice for the crimes and pressed for the ICC to open an investigation. Some activists and journalists continue to express skepticism that trials will take place in Guinea, and, as discussed below, have faulted the OTP’s approach as legitimizing government inaction on justice.
A highly significant element to the ICC’s approach of close monitoring, combined with active encouragement and pressure as needed, appears to have been regular visits to the country focused on assessing progress in the investigation and encouraging advances.
The OTP completed its first visit to Guinea in February 2010, during which then-Deputy Prosecutor Bensouda stated, “This visit has left me certain that crimes constituting crimes against humanity were committed” and that those responsible should face justice. As of March 2017, the OTP had made 14 separate visits to Guinea. OTP staff had met with President Condé on a small number of times. The OTP visits reflect the bulk of its engagement on Guinea. Email is not commonly used, although phone calls may take place from time to time.
Visits can serve multiple purposes that are not otherwise easily achieved. They allow the ICC to obtain a detailed picture of progress or stagnation by giving OTP officials the chance to meet with different interlocutors, including justice practitioners; Guinean government officials; representatives of the UN, the European Union and other international partners; civil society; and journalists. This allows the OTP to have multiple sources of information with which to evaluate investigative steps that have been taken or not—such as completing the process of interviewing all victims—and the pace of activities.
While difficult to prove, the relationship between the ICC’s regular visits and concrete progress in the investigation was noted by several interlocutors, including the OTP.
In addition to the appointment of the panel of judges for the investigation ahead of the ICC’s first visit, a team of gendarmes assigned to provide the judges’ security first appeared at the judges’ office one week before one of the ICC’s visits in late October 2011, and the Justice Ministry sought to establish a more comprehensive budget for the panel of judges directly after another ICC visit in April 2012. Former self-proclaimed President Capt. Moussa Dadis Camara also was questioned and charged within a few weeks of an ICC visit in 2015, although government and international interlocutors were clear that this was coincidental, and plans were underway for the questioning for some time.
Even without direct impact to new investigative steps, visits appear to have helped keep up a momentum of progress. New charges have notably been brought at the rate of about two individuals a year, as the ICC has continued to visit around twice a year. More generally, progress has continued and over time became more robust, such as through interviewing witnesses from the security services.
One justice practitioner close to the investigation noted that when the ICC is set for a visit, the pace of activity increases significantly in what is otherwise a very slow-moving process. According to this practitioner, the judges seemed quicker to work longer hours and increase contact with the partie civile participants.
One Guinean justice official noted that the simple fact that the ICC visits “boosts the political will [of the government] somewhat,” and this contributes to forward momentum in the investigation. This was echoed by other sources. Other interlocutors suggested that the visits increased the confidence of the judges and encouraged them to move ahead by creating a sense that they are not “going it alone” on such a sensitive case.
The visits allow OTP officials to conduct direct advocacy with government officials to increase their support for the investigation, including by leveraging details on the state of progress from discussions with justice practitioners, the international expert supporting the investigation, UN staff, and civil society. As one justice practitioner put it: “The ICC is useful because they talk to everyone when they come. This helps to unblock [problems].”
Visits were the most readily identified action by the ICC among all interlocutors Human Rights Watch interviewed.
3. Media Engagement During Visits
The ICC’s use of media—both national and international—has effectively shined a regular public spotlight on the investigation—including progress that can be reinforced, and inadequate support, which needs to be addressed.
During visits to Conakry, the ICC nearly always interacts with international and Guinean media to publicize its findings as to progress in the investigation, the parameters of the ICC’s role, and the importance of justice. Engagement with media has often taken place in press conferences organized by OTP officials at the end of their visits to the country. On a couple of occasions, the ICC has also held press conferences with Guinean officials.
The ICC’s visits generated strong media coverage, which appears to have helped to keep the issue of the accountability for the September 2009 massacre and rapes on the domestic agenda.
During the press events, the OTP has made specific assessments of progress or that greater progress is needed. In July 2015, Prosecutor Bensouda said during a visit to Guinea: “It is important to recognise the support provided by the Guinean authorities and in particular the Minister of Justice to the investigative judges in their work. The judges have received extra resources to execute their mandate in full independence, despite significant challenges such as the Ebola crisis which the country has been facing.” This can be contrasted with statements by OTP official Amady Ba at the end of the visit in 2010: “We have noted with great satisfaction that justice is at the heart of the priorities of the new government.... It would be advisable, however, to redouble efforts so that this process comes to a close.”
OTP officials have also used visits to maintain public attention to the possibility of the ICC to intervene. For example, Bensouda stated in 2012: “If those most responsible are not prosecuted by the Guinean authorities, the ICC will prosecute them. As I have said previously, it is either one or the other; there is no third option.”
In addition, in one instance OTP officials secured commitments from government officials that they then made public to media. During the April 2012 visit, Bensouda said: “The authorities have assured me that the judges will have all the resources they need and that they will continue to work in complete independence.”
It is impossible to assess the specific impact of securing public commitments by government officials as opposed to securing such commitments only privately; at the same time, this approach seems to have the potential to foster greater pressure on the government to honor its commitments.
One of the ways in which the ICC has operationalized its close monitoring is by identifying an informal list of benchmarks for progress in the investigation. Such an approach allows for interaction related to the investigation that is more specific, and for the ICC to become more active in its efforts to foster progress.
According to the OTP, these benchmarks were developed through consultation and exchange with Guinean officials and justice practitioners, and the OTP regularly discussed the benchmarks with Guinean officials during its visits. Some of the benchmarks for progress that OTP staff identified included the judges conducting a site visit to the stadium, interviewing witnesses in the security services, and questioning the former president. During the second slowdown in work in late 2013, the OTP increased its attention and interaction with officials and the panel of judges on progress in specific steps that were needed to advance the investigation.
As the OTP noted, the limited scope of the crimes under examination by the ICC in Guinea may lend itself more easily to positive encouragement from the ICC than situations where many crimes are at issue. As the situation in Guinea involves crimes committed around one major incident, the specific important investigative steps are easier to identify and track.
5. Strategic Alliances
The experience in Guinea underscores that OTP efforts to promote accountability for serious crimes before national courts have and will continue to benefit from strategic alliances with domestic and international players, whose efforts can be mutually reinforcing. At the same time, there is unlikely to be a “one-size-fits-all” approach as to which players are most relevant and valuable.
Guinea’s key international diplomatic partners—the European Union, France, and the United States in particular—have the potential to be important allies in the push for domestic accountability. They have representation in country and thus are well placed to regularly raise the importance of domestic accountability with government officials.
The OTP has sought to maximize the role of Guinea’s diplomatic partners by meeting with donors nearly every time they visit. The ICC often pursues such contact through group meetings with diplomats, often organized by the EU. OTP officials have also reached out to diplomats in capitals and The Hague to brief them on developments in the investigation and to press them to more consistently push for progress in the investigation.
Despite such outreach, discussions with diplomats in Conakry in 2012 suggested that international government and intergovernmental partners did not prioritize progress in the September 28 investigation with the Guinean government at that time. While they did sometimes raise the issue in bilateral discussions with Guinean officials, the diplomatic community prioritized both private and public advocacy around elections, both parliamentary and presidential, and consequently issued few public statements to highlight the need for greater progress.
One diplomat suggested that US representatives in Conakry were not prepared to take the issue up with the government in a more robust way until such time that they had more confidence the government in Guinea was serious about accountability. With the appointment of Minister Sako, US representatives in Conakry have followed progress in the investigation and possible US support to the investigation more closely.
The EU has offered an unparalleled contribution to help promote progress through financial support to the partie civile action. As discussed below, the action has allowed for civil society to scrutinize and spur progress in the investigation through judicial activity.
Three key UN entities have been involved in accountability efforts for the 2009 crimes: the Office of the Special Representative on Sexual Violence in Conflict and the Team of Experts for Rule of Law/Sexual Violence in Conflict (“Team of Experts”) within that office, the UN Peacebuilding Commission, and the Office of the High Commissioner for Human Rights, which maintains an office in Conakry.
These UN agencies and other UN bodies have the potential to serve as important allies in pressing for accountability for grave crimes before domestic courts, especially those that have representation in country. The OTP has been in regular contact with UN agencies engaged in Guinea, and the work of UN entities and the ICC has been mutually reinforcing.
The special representative and the Team of Experts within the Office of the Special Representative on Sexual Violence in Conflict have played the most significant role among UN entities in pushing for justice for the September 2009 crimes.
The special representative has issued public statements that repeatedly stress the importance of accountability for the September 28 crimes, visited the country multiple times, and facilitated an international expert to support the investigation through the Team of Experts. While the government of Guinea initially agreed to the deployment of an expert, then-Justice Minister Christian Sow later declined for Guinea to avail itself of the expert, welcoming instead only logistical support. The Team of Experts had in-depth consultations with the government, including to revise the terms of reference, and the OTP also reached out to government officials, including President Condé, to promote acceptance of the expert.
The expert, who has been deployed since December 2012, has been able to share expertise with the panel of judges, and offer moral and technical support as the judges continue precedent setting and sensitive work in Guinea. In addition, the expert works on a daily basis with the panel of judges, and has been based in Conakry for months at a time. The expert is mandated to assist the investigation through technical assistance, while the OTP ultimately has a more monitoring and assessment role.
The expert has also worked to galvanize greater international attention and financial support for the investigation, and to liaise with victims’ associations and government officials in Guinea. In addition, the Team of Experts has taken strategic measures to draw positive attention to progress in the investigation. For example, in 2013 the team hosted a visit by the Guinean justice minister to New York to discuss advances in accountability efforts in Guinea. The Team of Experts hosted a second delegation to New York and Washington, DC, in March 2016 that included the panel of judges in addition to the justice minister. The Team of Experts has also provided equipment to the panel; fostered information exchange on forensics and victim support with the governments of Colombia and Democratic Republic of Congo; and is offering assistance in judicial cooperation with neighboring states related to extradition and hearings convened with suspects outside the country.
The OTP maintains regular contact with the international expert and the Team of Experts, which allows all these actors to share information about progress and challenges in the investigation and develop strategies for overcoming the obstacles to progress in the investigation.
The UN Peacebuilding Commission (PBC), which has supported programs in Guinea since 2011, has also played a helpful role in pushing for progress on the 2009 investigation. The investigation of the September 2009 crimes is regularly mentioned in PBC reports, and the PBC chair has regularly pushed for progress on and greater resources for the panel of judges investigating the September 2009 crimes.
This appears to be due—at least in part—to the particular dedication of individual diplomats involved in the work, such as the chair of the Guinea configuration, the Luxembourg ambassador. Luxembourg’s status as an ICC state party also has helped ensure more sustained attention by the PBC to the need for accountability in Guinea. The OTP has been in regular contact with the PBC’s Guinea configuration. This has allowed for information exchange on progress in the investigation, the two entities to draw off the others’ experience in pressing for justice for the September 28, 2009 crimes, and to promote the continued attention of the PBC on the issue of accountability.
The Office of the United Nations High Commissioner for Human Rights (OHCHR) has identified combating impunity in Guinea as a priority and has a field presence in Guinea that came about in response to the September 28 crimes; specifically, the international commission of inquiry on Guinea recommended that the OHCHR have a significant presence in monitoring the situation in Guinea to deter further violations.
The OHCHR has contributed to supporting progress in the September 28, 2009 investigation by providing the panel with equipment and other material support in its early years, and hosting in their office the international expert provided by the Team of Experts within the Office of the Special Representative of the Secretary-General for Sexual Violence in Conflict.
At the same time, the office has prioritized private diplomacy with the government on accountability for serious crimes over public pressure. As with the OTP’s engagement with media, as discussed above, we believe that the UN offering public scrutiny of gaps in Guinean government support to the investigation could have been useful in resolving challenges or increasing the political cost for the government to continue this approach; local activists have also raised concern about the OHCHR’s lack of focus on public pressure to advance accountability in Guinea.
Guinean and International Nongovernmental Organizations and Victims’ Associations
Guinean and international nongovernmental organizations (NGOs), including victims’ associations, have been active in promoting progress in investigation of the September 28 massacre, rapes, and other abuses, and are important allies for the ICC.
The partie civile action launched by FIDH, victims’ associations, and their lawyers has facilitated the inclusion of extensive information by victims and their families in the investigation dossier and allowed victims to make the investigative judges more accountable on the investigation’s progress through close scrutiny of action undertaken in the investigation. Victims are also able to request that specific investigative steps be undertaken in the investigation, such as for the judges to interview particular witnesses.
The OTP is in regular contact with victims’ associations that are participating in the partie civile action and their lawyers. By talking with these players, the OTP can obtain more information about steps that have been taken or not in the investigation, and their perception of outstanding challenges or needed strategies to advance the investigation. This additional information can help the OTP to more effectively press for further advances, while also bolstering civil society calls for justice.
Beyond the partie civile action, domestic and international NGOs, including FIDH, OGDH, AVIPA and Human Rights Watch, have consistently advocated for greater government support to the domestic investigation by issuing public statements and reports, and meeting Justice Ministry officials and Guinea’s diplomatic partners. Issues addressed include the need for greater security and financial support to the judges, and suspects to be placed on administrative leave from government posts pending investigation.
The OTP often meets with civil society organizations when it conducts visits to Guinea. The OTP also maintains contact with Human Rights Watch—which does not have a presence on the ground in Guinea—through discussions in The Hague and by phone. This allows the ICC and civil society to reinforce each other’s efforts through information exchange on updates in the investigation and strategies to promote progress.
As discussed below, some local NGOs in Guinea expressed disappointment and frustration about the OTP’s role in Guinea, and the potential that it is legitimizing efforts that they believe will never lead to perpetrators facing justice. It is important for the OTP to maintain regular contact with civil society groups on concerns raised.
The OTP’s role in Guinea has been relevant to Human Rights Watch’s efforts to press for justice at the national level in the country. We have cited the preliminary examination in public reports, news releases, and in meetings with government officials to show the importance of Guinea moving ahead with accountability at the domestic level, because the ICC can otherwise open an investigation. In addition, the ICC has also given Human Rights Watch increased impetus to focus on this incident as one where progress on justice can be made. At the same time, Human Rights Watch, FIDH, and local groups have stressed the need for accountability for other grave crimes, particularly incidents of killings in 2007, 2010, and 2015. FIDH also is involved with a partie civile action for those events.
The OTP’s preliminary examination and its targeted efforts to promote progress in accountability for the September 28, 2009 murder, rapes and other abuses in Guinea’s domestic justice system offers important lessons for the Office of the Prosecutor. While progress in the domestic investigation has been slow and uneven, it has nevertheless been significant.
It is difficult to determine the extent to which such progress might have occurred in the absence of the ICC’s active and targeted strategy of encouragement and close scrutiny, regular visits, benchmarking, and strategic alliances, and the engagement of other key players such as civil society groups and the Office of the UN Special Representative of the Secretary-General for Sexual Violence in Conflict.
But the lack of similar progress in accountability for other serious violations of international human rights before domestic courts and the obstacles the panel has overcome—including lack of response to inquiries to interview witnesses and inadequate resources—suggests that the same scope of progress would not have been achieved. It also appears that the interventions of the ICC, NGOs, the UN, and to a lesser degree, donors, have been mutually reinforcing to create a strong climate of expectation for progress that has been beneficial to advances in the investigation.
While the case has yet to progress to trial, the ICC also will need to avoid inadvertently legitimizing impunity and should continue to assess whether the local efforts are not actually going to deliver justice, either due to a lack of willingness or ability on the part of the authorities.
Some civil society organizations in Guinea expressed disappointment and frustration even as recently as March 2016 that the investigation had not progressed further. A few local activists even expressed concern that the ICC’s engagement may be giving an imprimatur of legitimacy to an investigation that will never deliver justice. Some journalists also expressed frustration with the ICC in 2016. They suggested that the ICC has become a vehicle for public relations by the Guinean government to promote a narrative of progress when steps forward are actually quite minimal.
These are understandable concerns, but concrete action along the way that met a number of the benchmarks for progress—and the subsequent conclusion of the investigation by the judges—reinforces the appropriateness of the OTP’s continued engagement on complementarity, rather than moving to open an ICC investigation.
The OTP can be expected to face a difficult balancing act across its situations to encourage domestic accountability without legitimizing impunity. The Guinea experience suggests two important lessons that can help to guide its efforts.
First, the OTP’s appreciation of the country context is important. Development in Guinea—such as perceptions over insecurity around election periods—resulted in periods of inactivity but did not lead to the investigation being dropped. In addition, Guinea is encumbered with heavy bureaucracy and an overall weak justice system, which contributes to the belabored progress in investigations. To make decisions about the actual prospect for further national action, the OTP needs to be deeply familiar with that domestic context. It will be also important for the OTP to keep revisiting its assessment as to whether the national investigation will lead to prosecutions.
Second, the OTP needs to take steps to mitigate risk to its own legitimacy, for example, by making public its assessments of government action, so as to make clear why it continues to invest in the prospect of complementarity. Although the OTP did this to a certain extent in Guinea, the observations of NGOs and journalists above highlight the need for the OTP to offer more detailed explanations where possible to support its conclusion that adequate progress has continued, and to engage more regularly with concerned constituencies.
Some journalists and civil society representatives suggested as well that the OTP would have the chance to obtain a more accurate picture of progress and lack thereof in the domestic investigation if it increased its exchanges with independent voices, notably activists and journalists.
Continued engagement by the ICC and other international and domestic actors will be important to promote further progress, while ongoing assessments of progress by the OTP will be important to accurately determine whether the OTP should continue to encourage domestic accountability. But the Guinean government remains ultimately responsible for whether the country seizes the opportunity to be a model for domestic accountability for grave crimes in holding perpetrators of the September 28, 2009 crimes to account.
IV. United Kingdom
Between March 2003 and May 2009, British forces took part in the invasion, occupation, and governing of Iraq. During that time and after, information emerged indicating widespread, serious abuses of Iraqis in British detention, including assaults, torture, and deaths.
Some abuse allegations have been the focus of statutory public inquiries in the United Kingdom. Successive UK governments have agreed to financial settlements with Iraqi citizens related to the alleged conduct of British forces in the country. Various allegations have also been the focus of criminal investigations under the auspices of the Iraq Historic Allegations Team (IHAT), which British authorities established in 2010.
The IHAT process did not result in any prosecutions by the time it was effectively closed in 2017, with a few cases transferred to another residual entity for further investigation. To date, only one British soldier has received a prison sentence—of one year—for war crimes in Iraq. There has been no criminal accountability for senior British military and political figures in relation to abuses by UK forces in Iraq.
Against this background, on May 13, 2014, the Office of the Prosecutor of the International Criminal Court (OTP) announced that it was reopening a preliminary examination, closed in 2006, into alleged British war crimes in Iraq. Though Iraq is not a member of the International Criminal Court (ICC), the court has jurisdiction over alleged serious crimes committed by the nationals of its member countries—in this case, UK citizens.
On December 4, 2017, the OTP announced there was a reasonable basis to believe that members of the UK armed forces committed war crimes within the ICC’s jurisdiction in Iraq against people in their custody, including wilful killing/murder, torture and inhuman/cruel treatment, and rape or other forms of sexual violence. This conclusion reflected the OTP’s decision to officially move the UK/Iraq examination from Phase 2 (subject matter jurisdiction) to Phase 3 (admissibility).
The research for this chapter focused on the period during which the examination was in Phase 2. The chapter first outlines the allegations of abuse against British forces and the government’s responses to them. It then highlights OTP activities in relation to possible UK abuses in Iraq to date and considers their impact on the UK government’s approach.
As discussed in Appendix I, under its now-consolidated practice, the OTP does not actively encourage domestic prosecutions until it has, at least, identified potential cases as falling within the ICC’s jurisdiction. During the research for this report, the OTP had yet to do so in the context of its UK/Iraq examination.
Overall, given this, it is unsurprising that our research suggests the OTP’s examination neither catalyzed national investigative activities in the UK, nor impacted the existing domestic structure established to address allegations of abuses by British armed forces in Iraq. However, by subjecting existing domestic efforts to added scrutiny, the OTP’s examination may have had a positive role in constraining British authorities from stopping relevant inquiries into potential abuses, despite public pressure for them to do so. Since the report’s focus was on the impact of OTP actions in the UK, we did not examine media, civil society, or public responses in Iraq to the ICC’s preliminary examination.
B. Background and Alleged Crimes
The United Kingdom ratified the Rome Statute on October 4, 2001, giving the International Criminal Court jurisdiction over war crimes, crimes against humanity, and genocide committed on British territory or by British nationals as of July 1, 2002. Just before the UK joined the ICC it also passed the International Criminal Court Act, incorporating command responsibility into UK domestic law.
On March 20, 2003, nearly 19 months after the act came into force, British forces joined the US-led coalition that invaded Iraq and stayed there until combat operations were officially declared over. Most British troops left Iraq by July 2009. During these six years, the UK operated detention facilities in southern Iraq, through which thousands of detainees passed, and in which some were interrogated by British military or intelligence personnel.
Alarm bells sounded early on. Within two weeks of the invasion, the International Committee of the Red Cross informed British authorities of Iraqis being ill-treated and deprived of their liberty at one camp, Umm Qasr, including the use of hoods and flexi-cuffs. At the same time, a senior British military legal advisor in Iraq, Nicholas Mercer, and other senior military personnel raised concerns with commanders about the treatment of prisoners, including the legality of certain interrogation techniques that the British government had banned over three decades earlier.
During the UK’s presence in Iraq and in the following years, NGOs such as Amnesty International and REDRESS, various legal challenges in British courts, official public inquiries, and other inquests indicated that British troops had committed a range of abuses in the country. 
In January 2014, the now-dissolved British law firm Public Interest Lawyers (PIL), and the European Center for Constitutional and Human Rights (ECCHR), a Berlin-based nongovernmental organization, submitted a lengthy communication to the ICC prosecutor related to alleged ill-treatment of Iraqi detainees and unlawful killings by British forces in Iraq from 2003-2008. This included the possible responsibility of senior British military and political figures in alleged abuse by British troops of detainees in different UK-controlled facilities in Iraq. The communication triggered the reopening of the preliminary examination.
According to the OTP, between January 2014-June 2016, PIL provided 1,390 victim accounts, of which 1,071 related to alleged ill-treatment of detainees and 319 to alleged unlawful killings. The alleged crimes took place in “military detention facilities and other locations under the control of UK Services personnel in southern Iraq, including in temporary detention/processing facilities and in longer-term detention and internment facilities.”
C. UK Response to Alleged Crimes
Starting in 2004—and continuing after UK forces left Iraq—Iraqis who alleged that British troops had unlawfully killed, detained, or abused them or their relatives pursued various legal remedies in the United Kingdom.
The response of British authorities to these legal actions has been piecemeal, ad-hoc, and almost exclusively driven by the efforts of individual victims, their families, and legal representatives. This led to considerable interrelated litigation—some of it still ongoing—that has spanned over a decade and reached the highest levels of British courts, and even the European Court of Human Rights. Several of these initiatives are discussed below.
1. Public Inquiries
Years of litigation using the UK Human Rights Act compelled the British government to conduct two public inquiries related to allegations of ill-treatment and unlawful killing by British troops in Iraq.
The first public inquiry in 2008 concerned Baha Mousa, a hotel receptionist whom an inquiry found had died in British custody in the southern Iraqi city of Basra in September 2003 after days of serious abuse. British troops had detained Baha Mousa at a base in Basra, where for 36 hours he and other detainees were subject to abuse that included being kicked, slapped, beaten, deprived of sleep, and forced into stress positions. A post-mortem showed that Baha Mousa had suffered 93 separate injuries.
Published in September 2011, the Baha Mousa Inquiry report identified “corporate failure” by the British Army to prevent the use of banned interrogation techniques. Only one soldier, Cpl. Donald Payne, was convicted five years earlier of crimes related to the abuse under the UK’s International Criminal Court Act and was sentenced to one year in prison.
In November 2009, the UK government launched a second public inquiry to investigate allegations of torture and unlawful killing of Iraqis following a gunfight between British troops and fighters for the Mahdi Army in 2004. The Al-Sweady Inquiry, which published its findings in December 2014, rejected the most serious allegations of murder of Iraqi detainees as being “wholly without foundation and entirely the product of deliberate lies, reckless speculation and ingrained hostility.”
But it did find evidence of mistreatment of Iraqi detainees, including the deliberate deprivation of food and sleep for the purposes of interrogation—two of the “five techniques” that the British government announced it had banned in 1972 and which the European Court of Human Rights subsequently found constituted cruel, inhuman or degrading treatment. The inquiry chairman described these findings to be “relatively minor when compared with the original very serious allegations.”
The abuse findings in the Baha Mousa and Al-Sweady inquiries did not lead to new prosecutions.
In February 2010, Public Interest Lawyers, acting for a group of claimants that eventually included over 100 Iraqis, set in motion legal proceedings in a UK court seeking a single public inquiry into allegations that British armed forces tortured or otherwise ill-treated them in detention facilities in Iraq between 2003-2008.
Claimants in the proceedings—eventually known by the name of the lead claimant, Ali Zaki Mousa—argued that the ill-treatment amounted to “systemic abuse,” and that the government must establish an overarching inquiry in order to discharge the UK’s obligation under article 3 of the European Convention on Human Rights, which forbids torture or inhuman or degrading treatment or punishment and requires the state to set up an effective inquiry into credible allegations of torture by state forces.
However, rather than set up a full public inquiry, the government in March 2010 established the Iraq Historic Allegations Team. In December 2010, a British court rejected the claimants’ application in the Ali Zaki Mousa litigation to review the government’s decision not to order an overarching inquiry. Instead, it endorsed the government’s decision to “wait and see” if another public inquiry into abuse of Iraqi detainees was necessary, pending the outcome of the IHAT investigations and the Baha Mousa and Al-Sweady inquiries, which at that point had yet to publish their findings. The Iraqi claimants would later argue that the IHAT was not sufficiently independent to investigate the allegations (see below).
In 2011, at the end of a separate string of proceedings which began in 2004 in UK courts, named after an applicant, Mazin Jum'Aa Gatteh Al-Skeini, judges at the European Court of Human Rights ultimately rejected the British government’s argument that the European Convention on Human Rights did not extend to the UK’s conduct in Iraq. The court found the UK had violated the right to life because its system of military investigations into alleged unlawful deaths by UK forces was not institutionally independent of the military chain of command.
2. Iraq Historic Allegations Team (IHAT)
On March 1, 2010, the government announced the establishment of the Iraq Historic Allegations Team. The IHAT was mandated to “investigate as expeditiously as possible those allegations of criminal conduct by [UK] Forces in Iraq … in order to ensure that all those allegations are, or have been, investigated appropriately.” The minister of state for the armed forces noted the difficulties of investigating the claims and emphasized that the IHAT’s establishment did not represent an admission of fault. Characterizing many of the allegations as “sketchy and incomplete,” he said the government believed the IHAT would establish that most British forces had acted professionally and responsibly in Iraq.
By November 2010, the IHAT had become operational and was expected to complete its investigation in two years.
The IHAT was exclusively responsible for managing and conducting investigations related to death or ill-treatment by British armed forces in Iraq between 2003-2009 and making determinations whether individual cases should be referred to the UK Service Prosecuting Authority (SPA) for the director of service prosecutions (DSP) to determine, first, if a prosecution was appropriate based on realistic prospect of conviction, and second, whether it was in the public and service interest to bring charges.
The IHAT also played a reporting function, releasing its investigative reports to the Ministry of Defence’s Systemic Issues Working Group, a body “responsible for identifying systemic issues and ensuring that effective corrective action is taken.” The working group has published three annual reports explaining what the Ministry of Defence has done to address systemic issues identified from its review of the IHAT investigations.
The IHAT process did not lead to a single prosecution. By June 30, 2017, the IHAT reported receiving allegations of crimes relating to 3,405 victims. Of these, 1,668 were not pursued after an initial assessment, while 40 still had to undergo preliminary evaluation. Of the remaining allegations relating to 1,697 potential victims, 325 related to allegations of unlawful killing and 1,372 to other forms of alleged ill-treatment. The IHAT reported 34 ongoing investigations involving 108 victims, and that it had closed, or was closing, 700 allegations.
In December 2016, UK Secretary of State for Defence Michael Fallon told a parliamentary subcommittee that the number of claims on the IHAT docket would fall to 250 by January 2017 and to 60 by mid-2017. In a June 2017 submission to the OTP, ECCHR expressed concern about the IHAT’s decision to discontinue “investigations in hundreds of cases for reasons that are less than transparent.”
According to the IHAT’s final quarterly update, two soldiers had been referred to the DSP, which declined to pursue prosecution in both cases. Another soldier was referred to his commanding officer for disciplinary action and fined £3,000, while two other cases were sent to the Royal Air Force police for further investigation. The update indicated that one case involving an unlawful killing had been referred to the SPA to consider prosecution. Despite early projections that the IHAT would complete its work by 2012, the target date for finishing its investigations was eventually extended to December 2019.
From the outset, there were questions as to whether the IHAT was appropriately structured and sufficiently independent.
The IHAT was initially staffed by a combination of Royal Military Police (RMP) and civilian staff, and led by a civilian who reported to the provost marshal of the army (head of the RMP). The RMP’s involvement became the focus of the continuing Ali Zaki Mousa litigation, with a court of appeal in November 2011 holding that the IHAT was not sufficiently independent to satisfy the UK’s obligation under the ECHR.
Rather than order a full public inquiry as the Iraqi claimants sought, the minister of state for armed forces responded to the ruling by replacing, in April 2012, the RMP’s responsibilities with the Royal Navy Police, headed by the provost marshal (navy). The minister also announced the IHAT would follow up on the Baha Mousa Inquiry report and the European Court of Human Right’s Al-Skeini judgment.  The IHAT eventually consisted of around 145 staff, made up of Royal Navy Police and civilians, and headed by a retired senior civilian police detective, Mark Warwick.
A further judicial review was brought in 2012 seeking an overarching public inquiry. Though the claimants argued that the IHAT continued to fall short despite the recent reconfiguration, a high court held the team was sufficiently independent to undertake investigations to fulfill the UK’s obligations under the European Convention.
At the same time, it decided that a procedure similar to a coroner’s inquest—now known as the Iraq Fatality Investigations (IFI), chaired by former judge Sir George Newman—should be set up to meet the UK’s article 2 obligation under the European Convention to investigate cases of Iraqis who had died in the custody of British forces. The IFI had concluded five cases at time of writing.
The court also later appointed a high court judge, Justice George Leggatt, to oversee the different claims made with respect to alleged abuse by British troops in Iraq. According to UK authorities, he provided “oversight of the timeliness and effectiveness of all parts of the processes that the Secretary of State [of Defence] has established to discharge the UK’s investigative duties under the ECHR, and can require the Secretary of State and DSP to provide evidence of the progress being made.” Justice Leggatt held a number of case management hearings between 2014-2017 to this end.
The IHAT’s slow pace of work and its limited output, combined with mounting accusations in the wake of the Al-Sweady Inquiry report that the law firms bringing claims linked to abuses in Iraq are representative of “an industry of vexatious allegations,” generated criticism from government ministers, parliamentarians, other officials, and the public, putting increased pressure on the IHAT to expedite its work.
In April 2016, the attorney general directed Sir David Calvert-Smith, a retired judge and former director of public prosecutions, to conduct an independent review of the IHAT “prompted by continuing concerns as to the length and expense of the process.” Calvert-Smith’s final report, published in September 2016, concluded the IHAT would be able to finish its work by the end of 2019 if the report’s recommendations were implemented and if there was “no further surge of new applications.”
The same month in April 2016, the British House of Commons Defence Committee tasked a subcommittee chaired by a member of parliament and former British army officer, Johnny Mercer, to examine the support the Ministry of Defence gave to former and serving armed forces personnel subject to judicial processes, in particular through the IHAT.
On February 10, 2017, the subcommittee recommended that, due to loss of confidence, IHAT’s work be expedited with a view towards it shutting down and its remaining cases transferred to the service police with the support of civilian police. The same day, Defence Secretary Michael Fallon announced that the IHAT would close by the summer of 2017. Fallon’s announcement and the subcommittee’s report came days after the Solicitors Disciplinary Tribunal (SDT), the UK body tasked with adjudicating alleged breaches of professional ethics applicable to lawyers, struck off PIL’s principal lawyer, Phil Shiner, barring him from practicing law.
According to the UK government, the IHAT had taken “immediate steps to assess the impact” of the SDT decision disbarring Shiner on its work, including through consultations with the director of service prosecutions, and determined on February 8 that “a large number of cases, whose credibility had been tainted by the Shiner revelations, could be closed.” This led the defence secretary “to conclude that the work of IHAT as a separate entity could end” due to the fall in caseload, and that “the unit could be reintegrated into the Service Police system.”
Both Public Interest Lawyers and another law firm, Leigh Day, came under the British Solicitors Regulatory Authority’s (the body responsible for supervising the legal profession in the UK) review some time in 2014 in connection with the Al-Sweady Inquiry. The UK defence secretary noted that he had directed the Ministry of Defence to submit evidence of Shiner’s wrongdoing to the Solicitors Regulatory Authority in 2015, and the case against Leigh Day was reportedly brought after pressure from Ministry of Defence.
The SRA referred both firms and some of their lawyers to the Solicitors Disciplinary Tribunal in January 2016 and April 2016 respectively. Leigh Day denied wrongdoing and the SDT cleared its three lawyers of all charges in June 2017. In August 2016, PIL closed after being stripped of its legal aid funding for breach of contract. In December 2016, Shiner admitted to charges of misconduct. He was removed from the roll of solicitors two months later.
On April 5, 2017, Fallon confirmed that the IHAT would officially close on June 30, 2017, with any remaining cases—anticipated to be around 20—transferred to the service police (a combination of Royal Navy Police and Royal Air Force Police) for investigation. This effort, called the “Service Police Legacy Investigations” (SPLI), is led by a senior royal navy police officer, though no public information is available about the SPLI’s exact structure, staffing, and working modalities.
The Ministry of Defence news release announcing the IHAT’s closure stated the “exposure of the dishonesty of Mr Shiner meant that many of the allegations that his now defunct firm, Public Interest Lawyers, had brought forward were discredited and enabled the Defence Secretary to decide to close IHAT.” A separate ministry planning document said that Shiner’s unauthorised payments to claimants had led IHAT to conclude that most cases would be “unprosecutable.”
A few months earlier, the attorney general told the parliamentary subcommittee evaluating the IHAT that it had not been demonstrated that “every single one of the cases that Mr Shiner brought to the IHAT process was not a genuine case.” He stated that despite the SDT’s consideration of Shiner’s case an investigation was still necessary to sort through the allegations and emphasized that not all the claims had originated from PIL. 
In a September 2017 submission to the OTP, ECCHR made the case that the “UK Government’s assertions that the proceedings against Phil Shiner render false all allegations concerning abuse in Iraq, must be rejected,” given that numerous other sources “exist to corroborate the allegations.” As such, it urged the OTP “to reject efforts by the Ministry of Defence to use the proceedings against Phil Shiner as a means to characterize all claims relating to detainee abuse in Iraq as ‘spurious’ or ‘vexatious.’”
D. OTP’s Preliminary Examination Activities
The OTP first began to receive communications related to alleged abuses in Iraq within the court’s first year of operation. However, in 2006, then-prosecutor, Luis Moreno-Ocampo, decided not to open a formal investigation, stating that although there was reasonable basis to believe that war crimes of wilful killing and inhuman treatment were committed, the numbers were not sufficient to warrant ICC involvement. After receiving a further, fuller communication from Public Interest Lawyers and ECCHR eight years later in January 2014, the OTP announced in May that year that it was reopening the preliminary examination.
Between May 2014-December 2017, the OTP focused on assessing whether the ICC had subject matter jurisdiction over the crimes alleged during the UK’s engagement in Iraq—that is, its analysis remained in Phase 2. Consistent with the phased approach, the OTP received and considered information on the progress of ongoing relevant national proceedings during this period, but did not assess whether these proceedings were genuine such that they would be a bar to its jurisdiction.
Over those three years, the OTP held several meetings with a number of British authorities as well as the senders of the communication in either The Hague or the United Kingdom, including the IHAT director, the director of service prosecutions, and Foreign & Commonwealth Office officials. The office engaged in limited outreach to NGOs working on human rights in the UK.
The OTP’s meetings with UK authorities covered a range of subjects, including the OTP’s preliminary examination process and the scope and methodology of national proceedings. British authorities also gave the OTP information during meetings with staff, and in writing at least four times between 2014-2016, though none of these submissions have been disclosed to others, including the senders of the Article 15 communications. The OTP has said that relevant stakeholders, including the British government, cooperated fully during the examination.
As its examination progressed, the OTP focused on conducting an “evaluation of the reliability of sources and credibility of information received on alleged crimes”—including by visiting PIL’s offices in October 2015 to screen “supporting material relating to the claims,” and an unspecified third country for “source evaluation.” In its November 2016 annual preliminary examination report, the OTP noted it was tracking “issues affecting in particular the reliability of the providers of information,” and in December 2017, specified it had “examined all relevant circumstances bearing impact on the trustworthiness” of PIL, including the SDT findings against Phil Shiner.
The OTP’s public engagement around its United Kingdom examination has been limited. ICC Prosecutor Fatou Bensouda has visited the United Kingdom on at least two occasions since May 2014. However, these visits were not publicized as being linked to the OTP’s ongoing analysis of alleged abuses by British troops in Iraq. UK-based individuals who closely follow the court’s work, and the UK/Iraq examination in particular, told Human Rights Watch that they were not aware of the prosecutor’s presence in the UK during these visits.
During one trip to London in December 2015, Bensouda spoke at two events, but did not proactively raise the UK/Iraq preliminary examination at either.
The OTP has not issued any press releases after its visits to the United Kingdom and explained that it does not typically do so after working-level missions. Indeed, apart from correcting assertions in an article published by The Telegraph in July 2016, the OTP has not issued any standalone public statements regarding the UK/Iraq examination since May 2014.
According to OTP staff, publicity is a means of leverage it has not utilized as part of its UK/Iraq examination since British authorities were cooperating with the court. In addition, OTP staff said the office had purposely kept a low public profile since it had yet to reach a conclusion on subject matter jurisdiction. The OTP noted there was no need for greater publicity in Iraq to induce additional allegations since it already had received and was processing many from PIL.
E. Impact of OTP Preliminary Examination on National Justice Efforts
With varied domestic processes already in place prior to May 2014, the OTP’s most recent engagement cannot be said to have been a catalyst for national justice efforts in the UK. However, the office can encourage action simply by interacting with domestic authorities.
The following section looks at reaction to date to the OTP’s reopened preliminary examination within the UK government, domestic prosecuting authorities, media, and civil society to assess the extent to which the ICC’s examination may have helped to advance national justice efforts.
The OTP’s reopened preliminary examination has led British authorities to cooperate with the OTP in various ways, provoked several public statements, and influenced the UK government’s participation in official meetings about the ICC.
The OTP’s reopened preliminary examination compelled various British authorities to respond through direct cooperation with the OTP, including by sharing information or meeting with the prosecutor’s staff.
It also triggered public statements. Even before the examination reopened, when PIL/ECCHR advertised their first communication to the court in January 2014, a Defence Ministry spokesperson underlined that they would “explain [to the office of the prosecutor] the very extensive work under way to deal with historic allegations of abuse” should the ICC become involved. In the same vein, then-Foreign Secretary William Hague said that the “allegations are either under investigation or have been dealt with in a variety of ways.”
Once Bensouda announced her decision to reopen the UK/Iraq preliminary examination, a move one lawyer described as a “significant ruffling of the government’s feathers,”  British authorities were quick to take to the press. For example, Dominic Grieve, the attorney general at the time, issued a public statement underlining that “[w]here allegations have been made … they are being comprehensively investigated [in the UK].” He added that he would give the OTP “whatever is necessary to demonstrate that British justice is following its proper course.”
The government has also been careful to proactively address the preliminary examination in its public diplomacy. At the 2015 ICC Assembly of States Parties meeting, the government’s statement asserted that the UK had shown the ICC prosecutor that “these matters are being thoroughly dealt with at national level—a clear demonstration of complementarity in action.”
2. Effect on the IHAT
There are indications that IHAT staff, the DSP and other government officials were relatively mindful of the reopened examination, and that the ICC’s involvement seemed to have some impact on the backing the IHAT’s work received domestically.
One interlocutor was told that the hiring of new IHAT and SPA staff dedicated exclusively to liaising with the ICC was due to the reopened preliminary examination, suggesting, in this interlocutor’s view, “anxiety about the ICC’s involvement.” Similarly, the IHAT reached out to Nicolas Mercer for a witness statement only after the OTP reopened its examination. Mercer noted in testimony to the parliamentary subcommittee reviewing the IHAT’s work: “over a five-year period I had three visits from the IHAT before my complaints were formally recorded in a statement. Why did it take five years?” Mercer believed the ICC examination had prompted the IHAT’s outreach at last.
In another instance, the DSP drew the ICC’s examination to the designated judge’s attention in his consideration of the interaction between the IHAT and IFI processes, arguing “he would not wish to create any possible doubt about the willingness of the United Kingdom to investigate and prosecute cases by improperly abridging the criminal investigative process.”
According to the OTP, some of the IHAT’s working methods may have changed due to OTP queries about its operations. In particular, it was suggested that the IHAT’s sorting of ill-treatment allegations into “problem profiles” with a view to identifying patterns and groups of allegations that can be investigated together could be partly attributed to ICC involvement and the OTP probing the team’s consideration of systemic issues.
There is also some indication that, at least initially, the reopened examination bolstered support by government officials to the IHAT work. In fact, defence officials and the attorney general argued that the OTP’s ongoing examination and the possibility of a formal ICC investigation necessitated the IHAT’s continued work. They maintained that the IHAT was a key element in demonstrating to the ICC that allegations were being handled properly at the domestic level and that its intervention was unnecessary; conversely, shutting down the IHAT could risk the ICC stepping in. In December 2016, Defence Secretary Fallon stressed that the UK had to show the Iraq allegations were being properly investigated, and that he was “not prepared to see [the UK] dragged in front of the International Criminal Court like some dictatorship.”
Finally, the Calvert-Smith review of the IHAT could also be seen as a positive effect of the ICC’s intervention. In other words, the British government’s aim in convincing the OTP that ongoing UK proceedings were a bar to the ICC’s jurisdiction may have contributed to domestic efforts to expedite the IHAT’s work.
At the same time, there are real limits as to how strong an impact the preliminary examination likely had overall, whether in structure, staffing, resourcing, or timelines related to the IHAT’s work.
As detailed above, the IHAT had already been the subject of a great deal of judicial scrutiny in British courts pre-dating the OTP’s May 2014 intervention, leading to changes in its staffing and processes. Most interlocutors Human Rights Watch spoke with believed that, to the extent that there had been changes to the IHAT infrastructure or practices, it could be attributed to domestic judicial scrutiny. The IHAT procedures were “well-established” when the ICC reopened its examination in 2014.
Several individuals interviewed for this report described a palpable confidence on the part of British authorities vis-à-vis the limited likelihood of a formal ICC probe, which may have limited the concrete effects of the reopened examination. These individuals—a lawyer, a journalist, and an NGO representative—indicated that many officials believe that the prospect of prosecution in The Hague was “very far-fetched” and that the ICC’s engagement would not likely escalate into a formal investigation. Representatives of one NGO argued further that British authorities seemed “more concerned about negative domestic court judgments rather than the ICC.”
This view that the OTP would not ultimately open a formal probe is confirmed by statements of former and current government or judicial authorities. A Ministry of Defence representative told a British court in April 2015 that he was “confident” that the UK government would be able to demonstrate to the OTP that it was making genuine efforts to investigate and prosecute the allegations of abuse in Iraq. Sir David Calvert-Smith also said in his review of the IHAT that its process “would certainly satisfy the requirements of civilian investigation and prosecution organizations in England and Wales, and would be very surprised therefore if an international tribunal were to take a different view.”
The closure of Public Interest Lawyers in August 2016, and the disbarring of its head, Phil Shiner, in February 2017 for professional misconduct, seemed to further embolden this sentiment. The same month that news broke of Shiner’s disqualification, the House of Commons Defence subcommittee published its report recommending that the IHAT be closed and its remaining caseload handed to service police. In a press release, the committee said the IHAT had “become a seemingly unstoppable self-perpetuating machine, deaf to the concerns of the armed forces, blind to their needs, and profligate with its own resources.”
With respect to the OTP’s preliminary examination, the subcommittee noted it was “not convinced that the International Criminal Court would commit to investigate such a large case load which is based, to a great extent on discredited evidence.” It recommended that the Ministry of Defence instead present “a robust case to the ICC that the remaining cases would be disposed of more quickly and with no less rigour through service law rather than IHAT.”
The subcommittee further determined that “[t]he focus has been on satisfying perceived international obligations and outside bodies, with far too little regard for those who have fought under the UK’s flag” [emphasis added]. The UK defence secretary’s announcement on the IHAT’s closure similarly cited Shiner’s misconduct as discrediting most of the allegations pending before it, but without any mention of the ICC.
It appears that while British officials seemed to be mindful of the OTP’s examination, they were principally concerned with the scrutiny their work was subject to domestically.
Director of Judicial Engagement Policy at the Ministry of Defence, Peter Ryan, said that the work dedicated to establishing a process to address the Iraq allegations had been done to ensure “compliance with the UK’s investigative duties under the ECHR and with the judgements and orders of the Court.” Attorney General Jeremy Wright also made clear in October 2016 that “[e]ven if the ICC decided to no longer take an interest in this, [the UK] would still have those obligations and need to meet them.”
Concern with the IHAT’s procedures and the pace of its work persisted even after the ICC prosecutor reopened the UK/Iraq examination in May 2014, culminating in Calvert-Smith’s 2016 review. In one such example, Calvert-Smith notes that IHAT’s investigation was “being conducted by investigators with no experience of policing the Army and … unfamiliar with the concept of a ‘war crime.’”
3. Publicity and the Role of Media
As indicated above, the OTP has not proactively engaged with media in the UK. However, our research suggests that this was unlikely a missed opportunity to exert more leverage on the government given media hostility to the investigation of military personnel and the relationship between print media and public opinion in the UK.
The OTP had reopened its preliminary examination some few months before the publication of the Al-Sweady inquiry report in 2014. While the examination has received less press attention than any domestic legal activity relating to the Iraq allegations, the ICC’s role has enjoyed some bursts of coverage –for example, a flurry of press reporting surrounding the filing of the PIL/ECCHR communication to the OTP in January 2014.
But given the OTP’s policy not to publicize article 15 communications because it considers them confidential unless the sender takes steps to make them public, it seems that any press stories on that development were attributable to the coordinated media releases, press conferences and strategic campaigning of PIL and ECCHR. When the OTP reopened its examination in May, a series of British outlets covered the story on the day it was officially announced by the prosecutor.
One journalist indicated that most of the press is not aware of the fact or nature of the ICC’s involvement; while there is general familiarity with the “The Hague,” most British reporters neither understand the ICC’s authority nor believe that the examination could lead to actual prosecutions abroad. Another journalist said news editors were generally uninterested in the ICC angle because they could not discern any concrete steps the ICC had taken since the examination reopened. One British official told Human Rights Watch that the government has received very few press inquiries about the ICC’s preliminary examination in relation to the issue of the Iraq allegations more broadly.
Starting in 2015, some press appeared to become increasingly hostile toward possible legal action against British troops. In 2016, there was a surge of media interest in the IHAT after Mark Warwick stated that there was “significant evidence to be obtained to put a strong case before the Service Prosecuting Authority to prosecute and charge.” Soon after, some outlets spotlighted politicians’ and military families’ reactions describing the lawyers behind the Iraq allegations as “ambulance-chasing.”
Then-Prime Minister David Cameron was picked up in the press calling for “stamp[ing] out” the legal “industry trying to profit from spurious claims lodged against our brave servicemen and women.” The Sun even launched a personal attack against the IHAT’s director and called the solicitors bringing the claims “legal jihadi” lawyers, while The Daily Mail published numerous articles about the “merciless hounding of our soldiers over spurious allegations.” Some press attention also focused on the costs of the IHAT investigations for taxpayers. A few months before the decision to close the IHAT, several outlets covered Prime Minister Theresa May’s pronouncement at a Tory party conference that she would not allow “activist left wing human rights lawyers” to “harangue and harass the bravest of the brave.”
Despite emphasis on the IHAT’s work and the misconduct allegations against the lawyers bringing the Iraq claims, the ICC did not feature heavily in the coverage. What British media reporting there was of the OTP’s preliminary examination was usually prompted by events external to the examination. For example, at the beginning of 2017, references to the ICC again appeared in the British press in the context of the parliamentary subcommittee inquiry into the IHAT, the Ministry of Defence’s decision to shut the IHAT down, and the striking-off of PIL’s head, Phil Shiner.
Given the negative tenor of the coverage around the Iraq allegations, several interlocutors with whom Human Rights Watch spoke believed an engaged media strategy by the OTP might have been counterproductive. In their view, it risked criticism by some powerful sectors of the press with limited knowledge of the court and its mandate. Some argued that media savvy and public relations expertise would be necessary if the OTP wanted to avoid falling prey to the power of the British tabloids—skills, one interlocutor argued, the court currently lacked.
4. Role of Civil Society/Public
Historically, civil society engagement on the issue of accountability for abuses in Iraq has generally focused on bringing allegations of abuse to light, interventions in litigation related to the allegations, and advocacy tied to public inquiries.
By the time the OTP reopened its preliminary examination in May 2014, focused advocacy surrounding the allegations of abuse in Iraq seemed to have more or less subsided.
OTP staff told Human Rights Watch the office would be particularly interested in the views of civil society groups and others on the UK’s domestic justice system if and when the preliminary examination were to reach Phase 3. As with media, however, it is unclear whether its limited engagement to date represents a missed opportunity to have stimulated broader interest and movement at the domestic level with respect to the allegations at issue.
NGOs in the UK seem to have not greatly emphasized the ICC’s role vis-à-vis the Iraq allegations. With few exceptions, human rights groups have not generally sought to use the OTP’s reopened preliminary examination or the potential for a formal probe as leverage in advocacy.
Since the ICC prosecutor reopened her preliminary examination in May 2014, a number of organizations have addressed reported plans by British authorities to derogate from the ECHR in future military operations abroad, criticized attacks against lawyers involved in claims tied to the Iraq allegations, responded to public inquiry findings related to Iraq, and publicly commented on the government’s decision to shut the IHAT down. But the OTP’s examination was not a central feature of this advocacy.
In one notable exception, seven human rights groups, including Human Rights Watch, wrote to then-Prime Minister David Cameron in January 2016 to condemn as damaging to the work of the IHAT a statement he and Defence Secretary Michael Fallon made about lawyers involved in bringing claims related to allegations of abuse by British forces in Iraq.
The groups also pointed to the ICC prosecutor’s ongoing preliminary examination. Significantly, the Ministry of Defence addressed the ICC’s examination in its response to the groups, saying that the “[g]overnment is mindful of the Preliminary Examination” and that it was “confident that [the ICC prosecutor] will conclude that the UK is meeting its obligations to conduct genuine investigations into credible allegations.”
Other limited NGO activities relating to the OTP’s examination took the form of a small number of public statements by REDRESS and Human Rights Watch. The only other more substantive engagement between civil society groups and the ICC Office of the Prosecutor appears to be the research Human Rights Watch conducted in the context of this report.
In addition to timing, one possible reason for the limited extent of civil society engagement around the OTP’s examination may relate to the more general absence of a public constituency in the UK for justice for the alleged crimes.
One journalist surmised that the British public sympathizes with army soldiers, in contrast to its limited sympathy for Iraqis, and even more limited sympathy for Iraqi detainees. Similarly, there seems to be general sentiment to see accountability for politicians, including former Prime Minister Tony Blair, for their decision to go to war and the ensuing aftermath, but not necessarily military officials and rank-and-file soldiers. This no doubt creates a difficult environment within which to make use of the ICC, with its jurisdictional peculiarities, to advocate for accountability, particularly in a climate that is now also hostile to international institutions.
The OTP reopened its preliminary examination during a dynamic and charged period concerning the broader allegations of abuse by British forces in Iraq.
Against this background, our research indicates that the ICC’s involvement so far has not per se instigated or influenced national proceedings in significant ways. Instead, to the extent there has been progress in criminal investigations, it is largely attributable to domestic litigation that predated the ICC examination.
As the OTP begins to undertake its admissibility assessment and to consider whether an active approach to encouraging national prosecutions is feasible, the political climate in the UK, especially hostility towards the prosecution of members of its armed forces, lack of understanding about the court among the media and the public, and little to no public demand for accountability in the UK for crimes in Iraq could prove to be a difficult terrain in which to operate.
On the other hand, the ICC prosecutor’s preliminary examination seems to have been a factor in ensuring that domestic structures that were set up before the OTP’s 2014 intervention remained in place and worked to more efficiently address the various allegations of abuse by UK forces against Iraqi nationals. However, the ultimate effect of the OTP’s examination remains uncertain given the questions that remain around the IHAT’s closure and in what manner any remaining cases will be taken up by another authority. One lawyer described the OTP as a “peripheral player,” but one that was “potentially important.”
Several lessons can be learned from the OTP’s engagement in the United Kingdom to date.
First, though the OTP did not implement an active approach to positive complementarity in Phase 2 of its reopened examination, it seems it was still able to exert some pressure on British authorities’ approach to the Iraq allegations. In particular, the UK’s concerted public diplomacy to showcase ongoing domestic efforts suggests a government concerned with its public image, and by extension receptive to quiet engagement. Thus, the OTP’s behind-the-scenes approach with a cooperative government can have a limited, positive effect; an observation that may have relevance in other situations under analysis.
Second, and notwithstanding the OTP’s adherence to a phased approach to its preliminary examinations, it seems detailed questions about existing domestic proceedings could lead to valuable results, as appears might have been the case for the IHAT’s working methods.
Third, reporting on the ICC has prompted on-the-record responses by various UK government officials asserting that any allegations of abuse are being addressed domestically, making evident the potential power of the press. And, in general, public officials in the UK are compelled to address issues under media scrutiny.
At the same time, given the complex and polarized nature of the British media market, and hostility in some media sectors to the investigation of military personnel, Human Rights Watch’s interlocutors overall were skeptical that the lack of a more proactive posture by the OTP towards media was a missed opportunity. Nonetheless, targeted and strategic press outreach might be helpful in raising general awareness about the ICC and its role, improving attention to the importance of accountability. To do so, the OTP would need specialized expertise, and to consider working with other organs of the court, including its Registry, which could play a role in conducting neutral public information campaigns.
Similarly, by largely limiting its interactions to direct participants (in particular, British authorities and the senders of the article 15 communications), the OTP may have stunted its ability to familiarize itself with a multi-faceted legal landscape developed over many years. Given limited OTP resources, the office may therefore benefit from greater engagement with civil society groups and other interested parties who have been deeply involved in the Iraq allegations to better understand the relevant intricacies.
Finally, the OTP should consider formalizing the procedure with which it engages with the senders of the communications. This could include providing them with a sense of responses received from relevant government bodies and identifying to them information that the OTP needs for the next phase of its analysis.
This report was researched and written by Juan Pappier, researcher in the Americas Division; Balkees Jarrah, senior counsel in the International Justice Program; and Liz Evenson, Param-Preet Singh, and Elise Keppler, associate directors in the International Justice Program. Giorgi Gogia, South Caucasus director, Clive Baldwin, senior legal advisor, Sasha Lansky, former associate in the International Justice Program, and Joanna Louise Stokes and Alyssa Yamamoto, former interns in the International Justice Program, contributed to the research. Clive Baldwin, senior legal advisor, Richard Dicker, director of the International Justice Program, Corinne Dufka, West Africa associate director, Giorgi Gogia, South Caucasus director, Danielle Haas, senior editor in the Program Office, David Mepham, UK director, Kartik Raj, Western Europe researcher, James Ross, Legal and Policy director, Joe Stork, deputy director of the Middle East and North Africa Division, Benjamin Ward, deputy director of the Europe and Central Asia Division, and Belkis Wille, senior Iraq and Qatar researcher, reviewed the report.
Michael Adams and Maria Elena Vignoli, fellows, and Elena Cecchini, Andres Constantin, Manon Dantin, Aji Drammeh, Francesca Gallelli, Kenna Graziano, Adrian Idehen, Jake Karr, Shane Meckler, Nadine El-Nabli, Emily Painter, Pedro Pizano, Sarah Reilly, Nour Saadi, Julia Sherman, MJ Solano, Ally Tang, Muzhgan Wahaj, and Evan Welber, former interns or volunteers in the International Justice Program and Americas Division, provided research assistance. This report was prepared for publication by Maria Barragan Santana, Anjelica Jarrett, and Karolina Kozik, associates in the Americas Division and International Justice Program. Fitzroy Hepkins and Jose Martinez prepared this report for publication.
Human Rights Watch expresses its appreciation to Alejandro Chehtman, Kevin Jon Heller, Andrew Williams, and Thomas Obel Hanson for their review of the Colombia and United Kingdom chapters. Human Rights Watch also wishes to thank all those who agreed to be interviewed for this report and gave their time and expertise so generously, in particular, staff of the ICC Office of the Prosecutor.
Appendix I: Positive Complementarity in Preliminary Examinations
The International Criminal Court (ICC) is a court of last resort. Under the principle of “complementarity,” cases are only admissible before the ICC where national authorities have not conducted genuine, domestic proceedings. Where states have an interest in avoiding the ICC’s intervention, they can do so by conducting national proceedings. This means that the Office of the Prosecutor’s leverage over national authorities to press for domestic proceedings can be significant.
The ICC Office of the Prosecutor (OTP) has recognized this opportunity by committing, where feasible, to encouraging national proceedings into crimes falling within the ICC’s jurisdiction in situations under preliminary examination by the office, that is, in situations where the OTP is considering whether or not to seek to open an ICC investigation. This policy commitment during preliminary examinations to what is known as “positive complementarity” holds out significant potential to meet victims’ rights to justice for human rights crimes, amplify the impact of the ICC on national justice efforts, and limit the need for the ICC to take up its own investigations.
In seeking to influence national justice efforts, the OTP needs to have strategies addressed to both bolstering a government’s political will to support independent investigations and bridging capacity gaps, or, in the language of the Rome Statute, overcoming “unwillingness” and “inability,” terms which have increasingly come to be used as short-hand for two pillars of positive complementarity activities. Human Rights Watch’s previous reporting and ongoing monitoring of situations under analysis, as well as its broader work on complementarity suggest a number of possible strategies. These include:
- Focusing public debate through media and within civil society groups on the need for accountability;
- Serving as a source of sustained pressure on domestic authorities to show results in domestic proceedings;
- Highlighting to international partners the importance of including accountability in political dialogue with domestic authorities;
- Equipping human rights activists with information derived from the OTP’s analysis, strengthening advocacy around justice; and
- Identifying weaknesses in domestic proceedings, to prompt increased efforts by government authorities and assistance, where relevant, by international partners.
A. Consolidating Policy and Practice
The OTP’s approach to the preliminary examination process, in general, and to positive complementarity in the context of preliminary examinations, has been consolidated over a number of years; its current approach dates to 2013, when the OTP issued a revised policy on preliminary examinations. The OTP divides its analysis into four phases (see graphic); the preliminary examinations are conducted by its Situation Analysis Section (SAS).
During the course of its preliminary examinations, the OTP is committed to pursuing a “positive approach to complementarity.” By a “positive approach to complementarity,” the OTP means that it views, in a positive manner, the prospect that national authorities could exercise their primary responsibility to investigate and prosecute crimes within the ICC’s jurisdiction.
The OTP’s approach, generally, is to defer to domestic authorities for a certain amount of time where it determines that genuine proceedings are or can be conducted. To that end, “[w]here potential cases falling within the jurisdiction of the Court have been identified, the Office will seek to encourage, where feasible, genuine national investigations and prosecutions by the States concerned in relation to these crimes.”
The OTP’s practice is to intensify positive complementarity activities during Phase 3 and, therefore, only after the OTP has concluded that a reasonable basis exists to believe that crimes within the ICC’s jurisdiction have been committed. An exception to this might be where there are already significant national proceedings, such that even at Phase 2 the OTP has the opportunity to engage with authorities regarding these proceedings.
The OTP’s efforts to encourage national proceedings unfold in one of two circumstances: either where national proceedings have already been opened, or, even where there are no national proceedings, if a government states its intention to investigate. In the latter case, the OTP will take the government at its word and encourage domestic authorities, while then going on to assess their progress. But in both cases, the extent to which the OTP takes a fully active approach, or even simply defers action to afford national authorities an opportunity to show results domestically will depend on its rolling assessment of the government’s intention and capacity.
Context matters to this assessment, and that context can include whether the OTP has identified other partners—in civil society or in the international community—that can assist in efforts to bring about national proceedings. In other words, even where there are national proceedings or a stated intent to proceed nationally, the OTP may consider that prospects for genuine domestic proceedings are so limited that an active, engaged encouragement of such proceedings is not warranted.
This current statement of policy and practice reflects an evolution in the OTP’s approach, part of its overall consolidated practice in situations under analysis, memorialized in its 2013 “Policy on Preliminary Examinations.”
In the past, the OTP sometimes initiated positive complementarity activities almost from the outset of the opening of a situation under preliminary examination. Now, the OTP considers that it can more effectively engage national authorities around specific potential cases it identifies following its Phase 2 analysis, and has observed that identifying these cases to authorities has led to concrete progress in national proceedings.
Because of these changes, the OTP’s policy statements on positive complementarity in preliminary examinations have become more qualified.  These changes in approach also explain some of the inconsistencies in the case studies in this report. In Guinea, opened in 2009, for example, the OTP began positive complementarity activities almost immediately; in the United Kingdom, re-opened in 2014, and still in Phase 2 during the course of this research, they had yet to do so.
Where it does seek to encourage national proceedings, the OTP has identified a number of different forms of engagement: “report[ing] on its monitoring activities, send[ing] in-country missions, request[ing] information on proceedings, hold[ing] consultations with national authorities as well as with intergovernmental and non-governmental organisations, participat[ing] in awareness-raising activities on the ICC, exchang[ing] lessons learned and best practices to support domestic investigative and prosecutorial strategies, and assist[ing] relevant stakeholders to identify pending impunity gaps and the scope for possible remedial measures.”
B. Maintaining Leverage and the Use of Publicity
While the fact that a situation may come before the ICC can initially provide an incentive for national authorities to start their own investigations, that leverage is likely to wane with time. Authorities can become desensitized to impending ICC action, as appears to have been the case in Colombia and Georgia.
And with a number of pending situations being analyzed simultaneously by the OTP, with limited resources (see below), national authorities may judge that the chances a situation will be selected for investigation do not warrant changes in behavior. This requires the OTP to consider how best to maintain leverage with national authorities, including through targeted and creative use of publicity to increase pressure for action.
From 2008-2011, the OTP sought to heighten the profile of its preliminary examinations. Its communication activities at the time, however, did not reflect a sufficiently strategic approach to the use of publicity.
OTP statements generated significant attention in situations under analysis, as well as globally. But given limited awareness or understanding of the ICC and the preliminary examination process, they raised expectations of immediate ICC action. Repeated public statements but no apparent action on investigations gave rise to perceptions of the ICC as a paper tiger, lessening the weight of future statements.
Increased publicity in the absence of more information about the preliminary examination process also prompts questions as to why the OTP’s approach across situations was inconsistent, with certain situations appearing to receive considerable public attention or public missions by the OTP, and others comparatively little.
The OTP, particularly since 2011, has taken steps to change its approach to publicity in preliminary examinations.
First, while the OTP issued a draft policy on preliminary examinations in 2010, it finalized the policy in 2013, setting out in detail the principles and processes governing situations under analysis. It also now publicly identifies on the ICC’s website and in other public materials where a situation falls in the four-phased approach—also explained in the policy paper.
Second, it has also increased substantive reporting on its preliminary examinations, having identified improving communications around preliminary examinations as a goal in its 2012-2015 Strategic Plan.  In December 2011, the OTP issued its first annual report spanning all preliminary examination activities over the previous year. These annual reports have become increasingly more detailed with each year.
In 2012, the OTP also issued a lengthy “interim report” on Colombia, covering both subject matter and admissibility issues. Since 2013, the OTP has also made public an internal article 5 report when moving from one phase to the next (Nigeria, Phase 2 to Phase 3), as well as what were previously internal-only reports regarding decisions to open investigations (Mali and Central African Republic II), and decisions to close preliminary examinations without opening investigations (Republic of Korea, Honduras, and Comoros).
Third, while it continues to engage with local press during missions to situations under analysis, and sometimes holds press conferences during missions, it has scaled back on press statements. It considers its annual report to be a substitute for more frequent press releases; it generally only issues press releases regarding missions to situations under analysis where the prosecutor or another high-level OTP representative leads them.
The latter appears to be driven by a more ambivalent approach to the value of publicity. On the one hand, the OTP continues to view publicity as a means to amplify its leverage with government authorities. On the other hand, it considers that it can damage communication channels with these authorities, on which it depends for information to proceed in its examinations.
Another important shift in OTP practice relates to the resources available to the SAS. Although the SAS has only 13 current staff members, this is a significant boost in resources from the court’s earliest years. Until 2011, the SAS had five to six staff members, but several of these were actually assigned to active situations under investigation, reflecting the then-lean staffing across the OTP. The OTP estimates that at least half of the work of the section prior to 2011 was taken up by situations under investigation, leaving minimal resources for work on the preliminary examinations.
The OTP’s preliminary examination practice, including inconsistencies in approach and strategy, needs to be considered in this light. All but one of the case studies examined in this report were initiated prior to the consolidation of the OTP’s practice in its 2013 policy paper and the SAS’s current boost in resources.
At the same time, this boost in resources is still less than the workload requires. As of January 2018, there are 13 staff members within the Situation Analysis Section. Of these 13 positions, two are at the P-1 level, six are at the P-2 level, four are at the P-3 level, and one position is at the P-5 level. This staffing size falls below the 17 staff members the OTP has indicated should be the “basic size” of the SAS.
But even with 17 staff members, under the OTP’s current division of labor, by the OTP’s calculations this would translate into an average of 1.5 full-time P-2 or P-3 analysts to work on each situation, assuming an average of nine preliminary examinations at any given point of time. These 1.5 staff members, with support from P-1 analysts and under the supervision of the P-5 head of section, are responsible for a wide range of activities in their assigned situations, including analysis necessary to support determinations regarding investigations, public information, efforts to deter crimes or encourage national proceedings, along with the associated field missions, consultations, and other activities necessary to support these functions.
Clearly, particularly in preliminary examinations with widespread allegations of crimes extending over a long time, or significant national proceedings under way, the OTP’s resources are highly limited as compared to the quantity of needed analysis, let alone the steps that may be necessary to engage national authorities in a way that can catalyze national prosecutions. These resources are also limited as compared to the resources that some governments are likely to allocate to engage with the OTP.
These limited resources should give some pause in considering what strategies the OTP can reasonably be expected to pursue on positive complementarity. It is worth bearing in mind that these strategies are, appropriately, only secondary to the SAS’s primary role of reaching decisions regarding whether to open ICC investigations.
Appendix II: Key Developments in Case Studies
2002-2008: Under pressure from superiors to show “positive” results and boost body counts in their decades-long war against guerrillas, army soldiers and officers abduct civilians or lure them to remote locations under false pretenses and kill them, placing weapons on their bodies and reporting them as enemy combatants killed in action.
June 2004: The Office of the Prosecutor of the International Criminal Court (OTP) opens a preliminary examination of crimes against humanity committed in Colombia since November 2002, when Colombia became a state party.
July 2005: Colombian Congress passes the Justice and Peace Law that allowed paramilitary death squads to receive reduced sentences in exchange for confessions.
2006: The OTP’s preliminary examination is made public.
2007: National investigations on “false positive” killings begin.
October 2007: OTP mission to Colombia.
August 2008: OTP mission to Colombia.
September 2008: “False positive” killings halted following the Soacha scandal, when it became publicly known that at least 16 young men from Soacha, a low-income suburb of Bogota, were victims of army killings.
2009: First convictions on “false positive” killings of low-ranking soldiers are handed down.
October 2009: OTP mission to Colombia.
November 1, 2009: The jurisdiction of the International Criminal Court (ICC) over war crimes begins, following a seven-year delay declared by then-President Andrés Pastrana upon ratification of the Rome Statute.
2011: Colombian government introduces the first of many bills designed to transfer investigations on “false positives” to the military jurisdiction.
July 2012: To pave the way for peace negotiations with the FARC, Colombian congress passes the Legal Framework for Peace, a constitutional amendment that includes a range of benefits for those responsible for human rights abuses. The scope of the amendment included soldiers responsible for “false positive” killings.
October 2012: Peace talks between the Colombian government and the FARC guerrillas formally begin.
October 2012: The Attorney General’s Office develops a prioritization strategy to prosecute abuses and creates a special unit, the Unit of Analysis and Contexts (UNAC), to carry out pattern-based analysis on the structure of the groups and identify those most responsible.
November 2012: OTP released its interim report on the situation in Colombia, which identifies priority areas as an effort to overcome a lack of adequate prosecutorial strategy domestically, including in relation to false positive cases.
April 2013: OTP mission to Colombia.
June 2013: OTP mission to Colombia.
July-August 2013: OTP sent letters to Colombian authorities on the inconsistencies of the Legal Framework for Peace and the Rome Statute.
August 2013: Colombian Constitutional Court fixes shortcomings in the Legal Framework for Peace.
September 2013: Prosecutor Bensouda meets President Santos.
November 2013: OTP mission to Colombia.
2014: UNAC stops directly investigating “false positive” cases, focusing instead on crimes committed by the ELN and FARC guerillas.
February 2015: OTP mission to Colombia.
May 2015: OTP mission to Colombia.
June 2015: Colombian government drops the most problematic language from a constitutional amendment that would have transferred investigations on “false positive” killings to the military jurisdiction.
July 2015: The Attorney General’s Office, for the first time, interviews generals for their alleged role in “false positives” cases.
December 2015: The Colombian government and the FARC announce a justice accord, replacing the July 2012 Legal Framework for Peace.
March-August 2016: National authorities charge and indict General Torres Escalante in relation to “false positives” incidents, the first army general to be targeted.
March 2016: The Attorney General’s Office announces it will charge General Montoya for his role in killings when he commanded the army (as of writing, he had yet to be charged).
November 2016: Peace talks between the Colombian government and the FARC guerrillas end with the signing of the peace accord.
September 2017: OTP mission to Colombia.
August 7, 2008: After months of escalating tensions between Russia and Georgia and following skirmishes between Georgian and South Ossetian forces, Georgian forces launch an artillery assault on Tskhinvali, South Ossetia’s capital, and outlying villages. Assaults by Georgian ground and air forces follow.
August 8, 2008: Russia begins its military response, with the declared purpose of protecting Russian peacekeepers stationed in South Ossetia and residents who had become Russian citizens in previous years. Russian ground forces cross into South Ossetia and Russian artillery and aircraft hit targets in South Ossetia and undisputed Georgian territory.
August 10, 2008: Georgian commanders order their troops to withdraw from South Ossetia. Two days later Russian forces move into and occupy various key cities in undisputed Georgian territory. South Ossetian forces also participate in the fighting.
August 14, 2008: The OTP announces that it is opening a preliminary examination into the situation in Georgia, days after the Georgian authorities open a criminal investigation into crimes committed during the conflict.
August 15, 2008: The French European Union presidency brokers a ceasefire agreement between Russia and Georgia. Despite the ceasefire, however, looting and torching of ethnic Georgian villages in the conflict zone continues intermittently though September, and in some cases through October and November.
October 10, 2008: Russian forces complete their withdrawal from undisputed Georgian territory, although remain in Perevi and Akhalgori, previously under Georgian control.
November 2008: The OTP visits Georgia for the first time.
September 2009: EU-funded fact-finding mission launched in December 2008 on the “origins and the course of the conflict” concludes that “despite a long period of increasing tensions, provocations and incidents,” open hostilities began by the shelling of Tskhinvali by Georgian armed forces during the night of August 7, 2008. The report also concludes that “evidence of systematic looting and destruction of ethnic Georgian villages” suggests that “ethnic cleansing was indeed practiced against ethnic Georgians in South Ossetia.”
March 8-10, 2010: The OTP conducts its first visit to Russia.
June 22-24, 2010: The OTP visits Georgia for the second time.
February 2-4, 2011: The OTP visits Russia for the second time. The Russian authorities report on the status of the Russian investigations into crimes allegedly committed in the context of the armed conflict in Georgia in August 2008.
October 18, 2011: In response to the OTP’s September 2011 request to Georgia and Russia for details on progress in investigations, Russia replies that its investigation faced difficulties resulting from the lack of legal assistance from Georgian authorities, and the fact that senior Georgian officials enjoy immunity from prosecution in Russia.
December 12, 2011: The Georgian government tells the OTP that it still needs “certain verifications and corroborations […] to attain charges [on South Ossetian suspects],” without providing further details about the timeframe.
April 24, 2012: A network of international and Georgian NGOs submits an open letter to the ICC Prosecutor criticizing Georgian and Russian authorities for not making available any information regarding investigations to victims. The network recommends that, if the OTP’s preliminary examination confirms that genuine national investigations are not being undertaken, the prosecutor should open an investigation into the crimes.
June 18, 2012: Russian authorities inform the OTP that they will continue to investigate the armed conflict in Georgia despite the persisting issues of immunity and the lack of legal assistance from Georgia.
October 2012: President Saakashvili’s political party is defeated during parliamentary elections, and the opposition party forms a new government, including a new chief prosecutor, who restructures and reorganizes the office, causing delays in the investigation. By the end of 2012, the General Prosecutor’s Office informs the ICC that its investigation into acts allegedly committed by the Georgian military were hindered by the lack of access to the crime scene—since there was no access to South Ossetia—and lack of cooperation from Russia and South Ossetia.
November 2012: The OTP releases its second Report on Preliminary Examination Activities, noting that both Russian and Georgian authorities still seemed to undertake investigative steps regarding alleged crimes committed in Georgia during the armed conflict in 2008.
March 25-28, 2013: The OTP visits Georgia for the third time.
May 15, 2013: The chief prosecutor of Georgia announces that his office would relaunch investigations into alleged crimes committed by all sides during the August 2008 conflict.
September 22-26, 2013: The OTP visits Georgia for the fourth time.
November 2013 - January 2014: The Georgian government replaces the chief prosecutor twice, stunting progress in the investigation.
January 22-24, 2014: The OTP visits Russia for the third time.
April 29-May 1, 2014: The OTP visits Georgia for the fifth time.
June 6, 2014: The OTP tells the Georgian authorities to provide “concrete, tangible and pertinent evidence” about genuine national proceedings against those bearing the greatest responsibility for crimes, or else the office would seek authorization from the ICC’s judges to open an investigation.
December 2, 2014: In its fourth annual Report on Preliminary Examination Activities, the OTP notes that the national investigations in both Georgia and Russia have not yielded specific results, more than six years after the armed conflict in Georgia.
January 21-23, 2015: The OTP conducts its sixth mission to Georgia to assess the status of relevant national proceedings.
March 17, 2015: The Georgian government informs the OTP that further progress has been halted due to “a fragile security situation in the occupied territories in Georgia” and fears that prosecutions could trigger “aggressive and unlawful reactions by the occupying forces.”
October 13, 2015: The prosecutor requests authorization to open an investigation into the situation in Georgia covering the period from July 1, 2008, to October 10, 2008, for war crimes and crimes against humanity allegedly committed in and around South Ossetia.
January 27, 2016: Pre-Trial Chamber I grants the prosecutor's request to open an investigation proprio motu in the situation in Georgia.
September 28, 2009: More than 150 peaceful protesters are massacred, hundreds more wounded, and dozens of women are raped by security forces during an opposition rally at a Conakry stadium. Security forces continue to commit abuses for several days in neighborhoods largely inhabited by people supporting the opposition, including pillage, physical abuse, and rape.
September 29, 2009: President Captain Moussa Dadis Camara announces a National Commission of Inquiry on the September 28, 2009 events.
October 14, 2009: The ICC prosecutor announces a preliminary examination into the situation in Guinea.
October 16, 2009: The UN secretary-general announces an International Commission of Inquiry to investigate the events of September 28, 2009, and their aftermath in Guinea.
October 20, 2009: The Guinean foreign minister travels to The Hague and informs the OTP that Guinea is able and willing to investigate the crimes.
December 3, 2009: President Dadis Camara is shot and gravely injured by Lieutenant Abubakar “Toumba” Diakité, Camara’s former aide-de-camp and head of his personal security. Diakité flees, and Camara seeks medical treatment in Burkina Faso.
December 18, 2009: The International Commission of Inquiry issues its report, finding that former President Dadis Camara and other high-level officials are allegedly implicated in the September 28, 2009 crimes.
February 2, 2010: The National Commission of Inquiry issues its report, which confirms that enforced disappearances, killings, and rapes were committed, but determines that the death toll was less than that found by the International Commission of Inquiry, and that former President Cpt. Moussa Dadis Camara was not likely implicated in crimes.
February 8, 2010: A domestic panel of investigative judges is appointed to investigate the crimes committed on and immediately after September 28, 2009.
February 2010: The OTP visits Guinea for the first time.
February 2010: Abubakar “Toumba” Diakité, is charged, but his whereabouts are unknown.
May 2010: The OTP visits Guinea for the second time.
May 2010: The International Federation for Human Rights and the Guinean Organisation for Human Rights initiate a partie civile action on behalf of victims’ associations and individual victims of the September 28, 2009 crimes.
November 2010: The OTP visits Guinea for the third time.
March-April 2011: The OTP visits Guinea for the fourth time.
October 2011: The OTP visits Guinea for the fifth time.
November 22, 2011: The Government of Guinea and the UN sign a joint communiqué welcoming assistance from the Team of Experts of the Office of the Special Representative for Sexual Violence in Conflict in the September 28, 2009 investigation.
December 13, 2011: The OTP releases its first annual Report on Preliminary Examinations. The OTP notes that the ICC has jurisdiction in Guinea and that crimes against humanity were likely committed during the September 28 events, but also notes Guinea’s stated ability and willingness to conduct a criminal investigation.
February 1, 2012: Moussa Tiégboro Camara, minister in charge of fighting drug trafficking and organized crime, is charged with crimes committed in connection with the September 28, 2009 stadium massacre, rapes, and other abuses.
April 2012: The OTP visits Guinea for the sixth time.
September 13, 2012: Colonel and medical doctor Abdoulaye Chérif Diaby, former minister of health, is charged with crimes committed in connection with the September 28, 2009 stadium massacre, rapes, and other abuses.
November 22, 2012: In its second annual Report on Preliminary Examinations, the OTP indicates that although the investigation has been slow, significant progress had been made. More than 200 victims have been interviewed and 6 individuals charged.
December 2012: UN Team of Experts deploys Ahmedou Tidjane Bal as a judicial expert to support the panel of judges.
January-February 2013: The OTP visits Guinea for the seventh time.
June 2013: The OTP visits Guinea for the eighth time.
June 27, 2013: Lt. Col. Claude “Coplan” Pivi, minister for presidential security, is charged with crimes committed in connection with the September 28, 2009 stadium massacre, rapes, and other abuses.
November 25, 2013: The OTP notes in its third annual Report on Preliminary Examinations that the national investigation has been slowed by the elections and security concerns, but progress has been made. Over 370 victims have been heard and 8 individuals have been charged.
January 20, 2014:Cheick Sako is appointed minister of justice.
February 2014: The OTP visits Guinea for the ninth time.
February 28, 2104: Judicial authorities in Burkina Faso, where former President Cpt. Moussa Dadis Camara has been in exile, interview the former president as a witness.
December 2, 2014: In its fourth annual Report on Preliminary Examinations, the OTP indicates that administrative challenges faced by the panel of judges, as well as concerns for the security of judges and victims, led to a slowdown in the domestic investigation.
May 2015: The OTP visits Guinea for the tenth time.
July 2015: The OTP visits Guinea for the eleventh time.
July 8, 2015: Former President Cpt. Moussa Dadis Camara is questioned in Burkina Faso by the Guinean panel of investigative judges and charged.
November 12, 2015: In its fifth annual Report on Preliminary Examinations, the OTP indicates that the pace of the investigation has improved, with increased support by the government. Some 400 victims have been heard by the panel of judges, and 14 individuals have been charged.
February 2016: The OTP visits Guinea for the twelfth time.
June-July 2016: The OTP visits Guinea for the thirteenth time.
November 14, 2016: In its sixth annual Report on Preliminary Examinations, the OTP indicates that since November 2015, the panel has interviewed more witnesses and approximately five high-level officials in the Guinean army.
December 16, 2016: Senegalese authorities arrest Abubakar “Toumba” Diakité in Dakar on an arrest warrant issued by Guinean authorities.
March 12, 2017: Senegal extradites Abubakar “Toumba” Diakité to Guinea.
March 2017: The OTP visits Guinea for the fourteenth time.
November 9, 2017: The justice minister announces that the judges have concluded their investigation and handed the dossier over to the prosecutor for review.
December 29, 2017: The justice minister announces that the investigation is complete has been referred for trial at a court of first instance in Conakry.
D. United Kingdom
September 1, 2001: The United Kingdom International Criminal Court Act enters into force.
October 4, 2001: The UK ratifies the ICC Rome Statute, giving the court jurisdiction over war crimes, crimes against humanity, and genocide committed on British territory or by British nationals as of July 1, 2002.
July 1, 2002: The Rome Statute enters into force.
March 20, 2003: British forces join in the US-led invasion of Iraq.
July 16, 2003: OTP reports it has received communications related to alleged abuses in Iraq.
September 15, 2003: Baha Mousa, an Iraqi hotel receptionist, dies while in British custody in the southern Iraqi city of Basra.
July 19, 2005: Seven British soldiers, including Cpl. Donald Payne, face various charges—including under the UK International Criminal Court Act for crimes related to the ill-treatment of Iraqi citizens held in their custody, including Baha Mousa.
February 9, 2006: ICC prosecutor Luis Moreno Ocampo closes the OTP’s first preliminary examination into alleged abuses by British forces in Iraq, stating that although there was reasonable basis to believe that war crimes of wilful killing and inhuman treatment were committed, the numbers were not sufficient to warrant ICC involvement. He leaves open the possibility that the decision “be reconsidered in the light of new facts or evidence.”
September 19, 2006: Cpl. Donald Payne pleads guilty to a war crime under the UK’s International Criminal Court Act for his role in the death of Baha Mousa. He is sentenced to one year in prison on April 30, 2007. Payne pleaded guilty to inhuman treatment. On February 14, 2007, charges were dropped against four of the six other soldiers, while the remaining two soldiers were acquitted on March 13, 2007.
August 2, 2008: A public inquiry is established to investigate and report on the death in British custody of Baha Mousa and the treatment of those Iraqi civilians detained with him. The inquiry is triggered by judicial review proceedings initiated by Baha Mousa’s father, who sought a public inquiry into the death of his son.
July 30, 2009: A public inquiry, chaired by Sir John Chilcot, is officially launched to consider and identify lessons learned from the UK’s involvement in Iraq.
November 29, 2009: The UK government launches the Al-Sweady inquiry to investigate allegations of torture and unlawful killing of Iraqis following a gunfight between British troops and fighters for the Mahdi Army in 2004. The inquiry is launched to investigate allegations made in another judicial review proceeding after judges held that the defence secretary’s approach to the disclosure of documents in the case had been “lamentable.” Sir Thayne Forbes is chosen to chair the inquiry.
February 2010: Public Interest Lawyers (PIL), acting for a group of claimants that eventually included over 100 Iraqis, sets in motion legal proceedings in a UK court seeking a single public inquiry into allegations that British armed forces tortured or otherwise ill-treated them in detention facilities in Iraq between 2003-2008. The proceedings would eventually be known by the name of the lead claimant, Ali Zaki Mousa.
March 1, 2010: In response to the Ali Zaki Mousa litigation, rather than setting up a full public inquiry, the British government establishes the Iraq Historic Allegations Team (IHAT). The IHAT becomes operational in November 2010.
December 21, 2010: A British court rejects the claimants’ application in the Ali Zaki Mousa litigation to review the government’s decision not to order an overarching inquiry. Instead, it endorses the government’s decision to “wait and see” if another public inquiry into abuse of Iraqi detainees is necessary, pending the outcome of IHAT investigations and the Baha Mousa and Al-Sweady inquiries.
May 22, 2011: Last British troops withdraw from Iraq.
July 7, 2011: Judges ruling in the Al-Skeini case at the European Court of Human Rights reject the British government’s argument that the European Convention on Human Rights (ECHR) does not extend to the UK’s conduct in Iraq. This case followed proceedings initiated in the UK in 2004 and concluded in 2007 with a decision by the House of Lords. They find that British investigations into possible unlawful killings in Iraq by members of the UK armed forces violated the right to life, as those conducting the investigations were not independent (i.e., outside the military chain of command) of those being investigated.
September 8, 2011: The Baha Mousa Inquiry report is published. It identifies “corporate failure” by the British Army to prevent the use of banned interrogation techniques.
November 22, 2011: Following allegations by claimants in the Ali Zaki Mousa litigation disputing the IHAT’s independence, a court of appeals holds that the IHAT is not sufficiently independent to satisfy the UK’s obligation under the ECHR because of the involvement of members of the Royal Military Police.
April 1, 2012: The IHAT is reorganized from under the Royal Military Police to under the Royal Navy Police to respond to a court’s ruling that it is not sufficiently independent. It is tasked to follow up on the Baha Mousa Inquiry report and the European Court of Human Rights Al-Skeini judgment.
October 23, 2012: The Ministry of Defence’s Systemic Issues Working Group starts overseeing the Ministry of Defence’s Directorate of Judicial Engagement Policy in its review of systemic issues and the IHAT’s reports on the subject.
October 2, 2013: Justice Leggatt is appointed as “Designated Judge” to oversee the different claims made with respect to alleged abuse by British troops in Iraq.
October 10, 2013: Following a further judicial review brought by the Ali Zaki Mousa claimants seeking an overarching public inquiry, a high court holds that the IHAT is sufficiently independent to undertake investigations to fulfill the UK’s obligations under the ECHR. At the same time, it decides that a procedure similar to a coroner’s inquest—now known as the Iraq Fatality Investigations (IFI) —should be set up to meet the UK’s obligation to investigate cases of Iraqis who had died in the custody of British forces.
January 10, 2014: The European Center for Constitutional and Human Rights (ECCHR) and PIL submit a lengthy communication to the ICC prosecutor related to alleged ill-treatment of Iraqi detainees and unlawful killings by British forces in Iraq from 2003-2008.
May 13, 2014: OTP announces the reopening of its preliminary examination related to alleged abuses by British forces in Iraq.
June 5, 2014: The chair of the new Iraq Fatalities Investigations, Sir George Newman, gives his opening statement.
June 24-26, 2014: OTP conducts a first mission to the UK and meets with the IHAT and the Service Prosecuting Authority (SPA).
December 17, 2014: The Al-Sweady Inquiry report is published, rejecting the most serious allegations of unlawful killing of Iraqi detainees but finding evidence of ill-treatment of Iraq detainees by British forces.
January 12, 2015: Following the release of the Al-Sweady report, the Solicitors Regulation Authority (SRA) announces professional misconduct investigations involving PIL and Leigh Day.
April 7, 2015: UK authorities submit a response to the allegations contained in PIL and ECCHR’s January 2014 communication.
May 7, 2015: IHAT, SPA and Foreign and Commonwealth Office (FCO) officials meet OTP staff in The Hague. During this meeting, the UK delegation provides oral answers to written questions received from the OTP.
October 1-2, 2015: The OTP conducts a mission to PIL’s offices in the UK to screen the supporting material relating to their claims.
October 5, 2015: In one of her first major speeches as British prime minister, Theresa May says “we will never again in any future conflict let those activist left-wing human rights lawyers harangue and harass the bravest of the brave: the men and women of our armed forces.”
October 23, 2015: IHAT and FCO officials have a further meeting with the OTP in The Hague.
January 1, 2016: IHAT head Mark Warwick states in a media interview that there was “significant evidence to be obtained to put a strong case before the Service Prosecuting Authority to prosecute and charge.”
January 6, 2016: The SRA refers Leigh Day to the Solicitors Disciplinary Tribunal.
April 2016: The attorney general directs retired judge and former director of public prosecutions, Sir David Calvert-Smith, to conduct an independent review of the IHAT.
April 7, 2016: The SRA refers PIL to the Solicitors Disciplinary Tribunal.
April 28, 2016: The British House of Commons Defence Committee tasks a subcommittee chaired by an MP and former British army officer, Johnny Mercer, to examine the support the Ministry of Defence gave to former and serving armed forces personnel subject to judicial processes, in particular through the IHAT.
July 4, 2016: OTP publishes a statement correcting assertions in an article published by The Telegraph.
July 6, 2016: The Chilcot inquiry report is published. Though the inquiry considered examining possible systemic issues relating to the detention and treatment of detainees in Iraq, it ultimately decided against doing so, citing potential duplication and prejudice of other processes.
August 31, 2016: PIL shuts down after being stripped of its legal aid funding.
September 15, 2016: Sir David Calvert-Smith publishes his report reviewing the IHAT.
December 14, 2016: Defence Secretary Michael Fallon tells parliamentary defence subcommittee that the number of claims on the IHAT docket would fall to 250 by January 2017 and to 60 by mid-2017.
February 2, 2017: The Solicitors Disciplinary Tribunal strikes Phil Shiner off the register of solicitors, barring him from practicing law.
February 10, 2017: The House of Commons Defence Committee publishes a report on the IHAT recommending its closure after the number of cases on its docket is reduced to 60.
February 10, 2017: Defence Secretary Michael Fallon announces that the IHAT will close by the summer of 2017.
February 13-14, 2017: The OTP conducts its third mission to the United Kingdom.
April 5, 2017: Defence Secretary Michael Fallon confirms that the IHAT will officially close on June 30, 2017 with any remaining cases—anticipated to be around 20—transferred to the service police for investigation.
April 21, 2017: The UK government submits its response to the Defence Committee report on the IHAT.
June 9, 2017: The Solicitors Disciplinary Tribunal clears Leigh Day of the allegations of professional misconduct.
June 29, 2017: ECCHR sends a letter to the OTP expressing concerns about the IHAT’s decision to discontinue investigations in hundreds of cases.
June 30, 2017: The IHAT ceases to investigate allegations of abuse of Iraqi civilians by British armed forces between 2003-2009. The remaining investigations are reintegrated back into the service police system through the Service Police Legacy Investigations.
September 1, 2017: ECCHR sends a letter to the OTP urging the office to open a formal investigation.
September 13, 2017: The UK Ministry of Defence posts the two last quarterly updates on the IHAT’s work.
December 4, 2017: On December 4, 2017, OTP announces there was a reasonable basis to believe that members of the UK armed forces committed war crimes within the ICC’s jurisdiction in Iraq against persons in their custody, including wilful killing/murder, torture and inhuman/cruel treatment, and rape or other forms of sexual violence. This conclusion reflects the OTP’s decision to officially move the UK/Iraq examination to Phase 3.