Chilcot report due, and ICC "could prosecute British soldiers but not politicians"

There is understandable anger over the International Criminal Court's revelation that its staff will trawl the Chilcot Inquiry report for indications of any alleged crimes by British soldiers, but will not be interested in the political decision to go to war in Iraq. The long-awaited Inquiry report is being published on Wednesday, 6th July.

In a statement to the Daily Telegraphstatement to the Daily Telegraph, the Office of the Prosecutor at the ICC said: “We will take note of the Chilcot report when released in the context of its ongoing preliminary examination work concerning Iraq/UK.

“A preliminary examination is not an investigation but a process aimed at determining whether reasonable basis exist to open an investigation.

“As already indicated by the Office in 2006, the 'decision by the UK to go to war in Iraq falls outside the Court’s jurisdiction’.”

The ICC's position will appear unjust to many, but our understanding is that it is legally correct. At present the Court's primary jurisdiction is confined to genocide, crimes against humanity, and war crimes. While Chilcot has yet to be published it appears unlikely that it will identify any alleged acts by political leaders which might fall within the definitions of those crimes, as set out in the Rome Statute which established the ICC.

The Rome Statute also refers to the crime of aggression, which relates to political or national leadership, but this part of the Statute has yet to be ratified by the number of countries required before it can be brought into force. If and when it is brought into force, it will not apply retrospectively.

There is no suggestion that politicians are automatically exempt from prosecution because of their status as politicians. Without going into detail here about this area of law, anyone can be prosecuted for genocide, war crimes or crimes against humanity if the evidence exists.

We hope that the report of the Iraq Inquiry chaired by Sir John Chilcot does not produce any new allegations of misconduct by British service personnel.

If any such allegations do appear, they would not be legal findings nor would they have the status of legal evidence. Anyone criticised by name in the report should already have received details from the Inquiry and been given the opportunity to ask for changes.

Any BAFF member with related personal concerns can contact us in confidence using the site contact form.

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