US Troops in Iraq: Likely out of Reach of the ICC

Julian asks the intriguing question, if the interim Iraqi government has joined the ICC, will that expose US troops to potential investigation and/or prosecution for past and future conduct? The short answer is probably not. There are several reasons. First, under the ICC statute, if Iraq is a state party (and it’s not clear from the brief statement reported in the press last week whether that is the case) the Court only has jurisdiction over conduct in Iraqi territory beginning on the date it becomes a party. The only exception would be if Iraq were to sign a “special declaration” agreeing to the jurisdiction of the Court beginning on July 1, 2002, the date the ICC came into force.

Second, the US may be de facto exempt as the result of a SOFA (Status of Forces Agreement) between it and the Iraqi government. At the time of the hand-over of sovereignty in June 2004, there was some discussion about the terms of such a SOFA, though I haven’t seen discussion that it was actually concluded. If there is a SOFA, under Art. 98(2) of the ICC statute, the Court would not be permitted to proceed with a request for surrendering US troops to the Court, as such a request would require Iraq to violate the terms of an international agreement. (This is why Julian referred to it as an “Art. 98 agreement”.)

Third, the US may also be protected from prosecution by the terms of the multinational force, which is currently operating in Iraq under Chapter VII authority of the Security Council. Art. 16 of the ICC statute prohibits the Court from proceeding in any matter where the Security Council has requested it (for up to 12 months) not to proceed. The Security Council has in the past adopted two blanket resolutions (Res. 1422 (2002) and Res. 1487 (2003)) calling on the ICC not to exercise jurisdiction in any UN operation under Chapter VII. The US withdrew its attempt to extend these resolutions last summer after it become clear other permanent members threatened a veto. However, the US might still be able to argue that the terms of the MNF deployment described in Res. 1546 and the letters from the US and Iraqi representatives accompanying that resolution (including the statement in the US letter that the MNF operate in a framework “in which the contributing states have responsibility for exercising jurisdiction over their personnel”) meet the requirement of Art. 16 and preclude ICC jurisdiction.

Finally, Art. 17 of the ICC statute requires “complementarity.” That means if a local or national investigation or prosecution of the conduct at issue is taking place, the Court is prohibited from exercising its jurisdiction. The only exception is where the state is “unwilling of unable” to exercise the jurisdiction. The US military investigations into and subsequent prosecutions of abuses at Abu Ghraib under the Uniform Code of Military Justice, for example, would likely trigger Art. 17 and halt effective jurisdiction of the ICC.