Support for the rule of international law, and for the institutions which uphold it, is one of the principles of my writings. I have therefore always been extremely keen to defend and support the International Criminal Court, despite widespread criticism that it is simply a tool for use against leaders in the developing world and other opponents of the neo-con world order. I maintained that the standard of justice and investigation in the cases it did consider was generally good, and the need was to widen its ambit.
Unfortunately, the decision of the ICC to close down its investigation into War Crimes committed by the British in Iraq is the last straw for me in continuing to harbour any hope that the ICC will ever be anything more than an instrument of victors’ justice. I have read the entire 184 page report which closes down the investigation, and it is truly shocking. It is shocking in the outlining of British war crimes, but what really shocked me is the truly appalling picture that clearly emerges of the attitudes of the International Criminal Court.
I am afraid this article is rather heavy going, and requires you to read some rather lengthy sections of the report to show what I mean. Nothing is so damning of the ICC as the words of their own report, so I do not apologise for this approach. I would say that what I found really did shock me and has completely changed my mind about the value of the International Criminal Court as an institution. As I flatter myself I have a reasonably good grasp of such matters, I am proceeding on the assumption that what was startling to me will probably be startling to you, and you will find this worth reading.
The launching of the Iraq War was itself the most serious single war crime of this century to date, and the ICC had previously ducked it by arguing that the Statute of Rome which founded the Court did not at the time of the war include illegal war of aggression among its list of war crimes. I argued then and I argue now that this did not remove that crime from its jurisdiction. The crime of illegal war of aggression was already firmly a part of customary international law and the very foundation of Nuremberg, so the ICC did not need specific mention in the Treaty of Rome to be able to prosecute it.
The current ICC report on British war crimes in Iraq however simply blandly reiterates the line (para 35):
Finally, although a number of communication senders have also made allegations relating to decision of the UK authorities to launch the armed conflict, the Office takes no position on legality of war given the non-applicability of the crime of aggression at the material time.
It was perhaps always Utopian to imagine that [Former Prime Minister Tony] Blair, [Former Foreign Secretary] Jack Straw, [Blair press spokesman Alistair] Campbell, [Sir John] Scarlett (writer of the dodgy Iraq dossier), [MI6 head Richard] Dearlove etc would pay for their crimes. But it did seem very probable that the ICC would prosecute at least some of those directly responsible for committing war crimes on the ground.
Alas, the ICC has now produced 184 pages of mealy-mouthed sophistry and responsibility-dodging to justify why there will be no further investigation, let alone prosecutions. I have read the full report and frankly it makes me feel sick. But I shall still try to elucidate it for you.
This ICC report does give an account of the origin of the Iraq War, and it is astonishing. At para 36 it states the UK/US case for the invasion as historical truth, as though that were the simple and uncontested fact of the matter.
36. After the January 1991 Gulf War, the Security Council adopted a resolution setting out ceasefire terms, including ending production of weapons of mass destruction and permitting inspection teams on the territory of Iraq. In September 2002, the US and UK argued that Iraq was in material breach of the relevant resolutions and was seeking to develop weapons of mass destruction. UN weapons inspectors stated they had not found any “smoking gun” in their search for weapons of mass destruction, but noted that this was “no guarantee that prohibited stocks or activities could not exist at other sites, whether above ground, underground or in mobile units”. The US gathered a coalition of 48 countries, including the UK, for the stated purpose of searching and destroying alleged weapons of mass destruction in Iraq.
That is it. That is the ICC’s entire account of the origin of the Iraq War. The notion that UN Security Council Resolution 699 of 1991 authorised the 2002 invasion – a position never endorsed by the Security Council – appears to be taken as read despite being the most hotly disputed question in international law of all time.
The selectivity of the cherry-picked quote from the weapons inspectors is an audacious bit of sophistry given it is taken from a report in which the weapons inspectors detailed they found no evidence of WMD, that cooperation from the Iraqi authorities was improving, and asked for more time and resources to complete their work. Even more flabbergasting, this ICC report paragraph gives as a supporting footnote the infamous UK government “dodgy dossier” on Iraqi WMD, a totally discredited document, without any indication there is any problem with it.
The truth is, that the paragraph in the report by the ICC prosecutor on the origin of the war is precisely as the UK would draft it, and in its unmoderated presentation of extremely contentious positions and its remarkable selectivity as to what facts are presented, it is entirely tendentious.
I suspect that not only could it have been drafted by the UK government, it is very likely it was so drafted. I cannot think of anyone else, not even the current U.S. government at time of writing, who would consider that paragraph a fair or reasonable explanation of the origins of the Iraq war.
This criticism applies to the entire document. It is written entirely in the preferred language of the invaders. For example, Iraqis resisting the foreign occupation are referred to as “insurgents” throughout the document. We first see this in para 43, in the statement that the British forces in Basra faced “an increasingly violent insurgency”.
Oh, those poor innocent British forces, sitting at home in Basra, facing invasion from “insurgents” who had surged in from… from… err, Basra. The idea that the invaders were the respectable power and the locals were “insurgents” may be the language of the British MOD and may be adopted by the Daily Mail, but it should not be the language of the International Criminal Court. Here again, the prosecutor simply accepts the entire British framing of the narrative. Insurgents are referred to throughout.
Not only is the entire report written in the British voice, it entirely omits the Iraqi voice. The Prosecutor has written a report on British war crimes against Iraqis. The Prosecutor accepts there is credible evidence that hundreds of such war crimes were committed. Yet nowhere is there one single direct quote from an Iraqi victim. Not one. In the hundreds of references, The Prosecutor has based the entire report on whether to prosecute Brits for crimes against Iraqis, solely on interviews with Brits in official positions.
Everything is seen through the British military lens. To give another small illustration of this point, a skirmish at Majar-al-Kabir, following which captives were grossly mistreated, is referred to as “The Battle of Danny Boy”, which it is called by nobody except the British army. The ICC should not be calling a site in Iraq by the name the British army gave their checkpoint there, nor representing a skirmish involving 100 people as a “battle” because the British army does. “The Battle of Danny Boy” is a good illustration of the way that this report is written entirely through the British military gaze using British, not Iraqi, terms.
This next fact alone sufficiently illustrates my point, and entirely damns both this report and the International Criminal Court. Of the 776 footnotes, not a single one references a document in Arabic or in translation from Arabic. Not one. The vast majority of references are to official British documents. On the rare occasions when Iraqis are mentioned in the report, it is frequently to impugn their reliability as witnesses. The Iraqi individual most discussed – still briefly – is not a victim but a lawyer engaged in collecting testimonies. The Iraqi voice has gone unheard in this ICC decision. The victims are unconsidered.
You will search in vain for the Iraqi voice even where it could easily be found, in the witness statements of Iraqis to the British courts the report so freely quotes. But no, where Iraqi experience is recounted at all it is thoroughly mediated by British judges or other authorities.
Yet remarkably the report accepts that British forces were responsible for war crimes on a substantial scale. The report was written by a team, and plainly the team that was setting out the facts on the ground held rather different views from the politically influenced bosses who were writing the conclusions. The report notes:
70. The UK deposited its instrument of ratification to the Rome Statute on 4 October 2001. The ICC therefore may exercise its jurisdiction, from 1 July 2002 onwards, over alleged acts of war crimes, crimes against humanity and genocide committed either on UK territory or by UK nationals on the territory of other States.
71. As set out more fully below, on the basis of the information available, there is a reasonable basis to believe that, at a minimum, the following war crimes have been committed by members of UK armed forces: wilful killing/murder under article 8(2)(a)(i)) or article 8(2)(c)(i)); torture and inhuman/cruel treatment under article 8(2)(a)(ii) or article 8(2)(c)(i)); outrages upon personal dignity under article 8(2)(b)(xxi) or article 8(2)(c)(ii)); rape and/or other forms of sexual violence under article 8(2)(b)(xxii) or article 8(2)(e)(vi)).
113. The information available provides a reasonable basis to believe that in the period from April 2003 through September 2003 members of UK armed forces in Iraq committed the war crime of wilful killing/murder pursuant to article 8(2)(a)(i) or article 8(2)(c)(i)), at a minimum, against seven persons in their custody. The information available provides a reasonable basis to believe that in the period from 20 March 2003 through 28 July 2009 members of UK armed forces committed the war crime of torture and inhuman/cruel treatment (article 8(2)(a)(ii) or article 8(2)(c)(i)); and the war crime of outrages upon personal dignity (article 8(2)(b)(xxi) or article 8(2)(c)(ii)) against at least 54 persons in their custody. The information available further provides a reasonable basis to believe that members of UK armed forces committed the war crime of other forms of sexual violence, at a minimum, against the seven victims as well as the war crime of rape against one of those seven victims while they were detained at Camp Breadbasket in May 2003. Where such detainee abuse occurred, this typically arose in the early stages of the internment process, such as upon capture, initial internment and during ‘tactical questioning’.
114. As noted above, the findings set out above are a sample pool of incidents which, while not reflecting the full scale of the alleged crimes relevant to the situation, were sufficiently well supported to meet the reasonable basis standard and allow the Office to reach a determination on subject-matter jurisdiction.
Later the following aggravating factor is considered:
140. The manner in which these crimes are alleged to have been committed also appears to have been particularly cruel, prolonged and severe. Notably, in five cases of deaths in custody, the victims were allegedly tortured – or at least severely and repeatedly assaulted – by UK personnel who detained them prior to their death. In the killing of Baha Mousa in September 2003, the victim was hooded for almost 24 hours during his 36 hours of custody and suffered at least 93 injuries prior to his death.
It is important to note that this appalling catalogue of crimes, where there was a reasonable prima facie case to proceed, represented only a very small sample of the thousands reported to the International Criminal Court. But even this small sample convinced the prosecutor that there was good enough evidence for the investigation to go forward.
So why did it not proceed? The Prosecutor decided to drop the case on the principle of “Complementarity”. This means that the ICC cannot prosecute if the government concerned – the UK government in this case – is itself genuinely investigating or prosecuting. The prosecutor based the decision not to proceed on these provisions of the Statute of Rome:
But none of the catalogue of crimes for which there is good evidence, examined by the ICC, had resulted in prosecution. In fact the report detailed that not a single prosecution had resulted from the work of the Iraq Historic Allegations Team (IHAT) in the MOD, although they had investigated scores of cases which the IHAT itself – consisting of former military and retired policemen – considered viable. In every single case, the proposal for a prosecution had been knocked back by the Service Prosecuting Authority (SPA).
In fact the ICC only references two cases in which there were convictions for war crimes, and in both cases the conviction was purely because somebody immediately admitted the truth and confessed at the initial investigation stage. The maximum sentence given out was just one year in prison. The report’s account of how one of these convictions from confession came to fruition is extremely revealing:
91. Several notable features stand out from the Camp Breadbasket court martial. First, although multiple military personnel knew about the alleged abuses (including the alleged sexual crimes), each failed in their duty to report them. The conduct only came to light when one of the soldiers involved in taking trophy photographs had the photographs developed in a civilian shop and the shop assistant reported the conduct to civilian police, who made an arrest. Second, during his testimony, when asked why he had not reported alleged criminal conduct at Camp Breadbasket, Corporal Kenyon asserted that, “there was no point in passing anything up the chain of command, because it was the chain of command who was, in my eyes, doing a wrongdoing to the Iraqis to start off with, and they were passing Iraqis down to us, for us to do the same things basically”.
The key fact here is that the MOD’s processes and investigations had nothing whatsoever to do with the conviction. It came about because of the chance of a civilian seeing the photo and bringing in the civilian police, who had plain and undeniable photographic evidence of torture and sexual abuse. Otherwise this would have been entirely covered up by the MOD, exactly like all the other thousands of cases bar one other (in which somebody wracked by conscience insisted on confessing). For the ICC to quote the Camp Breadbasket conviction as evidence the UK investigation processes are working is tendentious. It was very obviously a fluke; I cannot think of a better example of an exception that merely proves the rule.
The International Criminal Court’s decision that there are no grounds to continue investigation, on the grounds the UK’s own procedures are adequate, becomes truly incredible – in the real meaning of the word, utterly lacking in credibility – when you read this passage of the report. It really is worth reading:
380. The Office has pursued a number of lines of inquiry to independently ascertain the veracity of the BBC/Times allegations with a view ultimately to speak with the primary sources of the allegations and other persons directly involved or with knowledge of facts related to the events. Overwhelmingly, those former IHAT staff the Office spoke to indicated that they had concerns about the outcome of IHAT’s investigations. Most considered that the investigative teams did a thorough job, but when it came time for the investigations to progress to prosecutions, there was something obstructing this. The former IHAT investigators were unable to specify what this obstruction was, given their limited access to decision-making, but insisted that such obstruction came at levels higher up within IHAT or the SPA (Services Prosecuting Authority).
381. Several former IHAT investigators reported their frustration at the outcome of inquiries into systemic issues submitted for internal IHAT/IHAPT review, whether in terms of recommendation for further investigative steps or referrals for prosecution, in view of their concern that cases involving superior responsibility were prematurely terminated or that there was leadership pressure within IHAT/IHAPT not to pursue them.
382. Several former IHAT staff were of the view that IHAT’s independence and impartiality was undermined by its relationship with the army and MoD, including: its physical location on a British Army base; IHAT’s use of MoD resources and systems; and requirements that IHAT staff go through the RNP or MoD personnel for certain functions (such as securing custody and travel).
383. Multiple former IHAT staff described difficulties in accessing evidence in the possession of the RMP or the MoD. They described how some RMP and MoD
personnel obstructed access to files, in their view unjustifiably; did not permit IHAT staff to locate documents they had been vetted to inspect; and imposed restrictions on access; or were repeatedly told that they had been given all of the relevant material pertaining to a certain matter, only to later discover that they had not. The former IHAT staff described how some storage boxes had been mislabelled, obscuring the discovery of relevant evidence, and their view that the RMP only gave IHAT a fraction of the relevant material they possessed.
384. The former IHAT staff the Office spoke to also conveyed the difficulties the teams encountered in attempting to interview witnesses and suspects and to conduct other investigative steps. They described multiple occasions on which their requests to interview important witnesses were blocked for either unexplained reasons or for administrative ones, such as ‘expenses not allowing’. They described how witness interviews were hampered by IHAT refusing to reimburse witnesses for travel, travel details being changed at the last minute and in one case a potential witness being arrested before meeting with investigators. Some had the impression that IHAT management were trying to put obstacles in their way. Multiple former IHAT staff relayed their impression that there was no will on the part of IHAT management to allow proper investigations which would result in prosecution.
385. Concern was also expressed over the SPA’s involvement in the termination of cases. Several former IHAT staff that the Office spoke to felt that the SPA, as part of the MoD, was not truly independent or impartial respecting the armed forces. Multiple individuals with extensive civilian criminal investigations experience described how the investigation teams built cases which they considered were evidentially strong and ready to proceed, but the SPA refused to lay charges. With respect to certain alleged killing incidents, the view was conveyed that evidence supporting charges of manslaughter or murder, which would have proceeded in a domestic civilian police inquiry, were discontinued by the SPA.
Read that, and then consider that the conclusion of the International Criminal Court report is that their investigation must be dropped as there is no evidence that the UK is not diligently pursuing prosecutions.
The ICC then details a dozen paragraphs of what I would characterise as bland managerial reassurances from the MOD that these concerns are unwarranted, a result of the limited understanding of junior staff, and decisions not to prosecute have always been taken on the advice of external counsel. You are welcome to read that section of the report starting at para 386.
The ICC accepts these reassurances and the British Government view as genuine without question, never for example considering that the MOD might have external counsel of notable militarist views and disinterest in human rights. The fact that external counsel is involved in the decisions not to prosecute is taken by the ICC as substantial guarantee that the procedure is genuine.
After the IHAT was closed down its workload was transferred to the smaller Service Policy Legacy Investigations Team, which immediately closed down 1213 out of the 1283 cases it inherited. That this indicates that a genuine process is underway is apparent to the ICC, but not to me. The report also notes something remarkable about the IHAT’s approach in that it categorised cases into three tiers, of which only the first tier was actively pursued. The second tier were cases considered less serious so it was not “proportionate” for them to be pursued. But consider what was in the second tier. This is from para 355 of the report:
Tier 2 allegations are those that may meet the investigative threshold of the SPLI but are dependent upon a further review. They are cases of moderate severity and ill-treatment where no life changing injuries or significant psychological harm has been sustained. Examples of Tier 2 cases could include, but are not limited to, GBH type offences that are not of a life changing nature; e.g. broken bones and or fractures. Tier 2 allegations could also include lower level sexual allegations e.g. intimate searches, and other treatment of a serious nature i.e. mock execution, nonfatal shootings and electrocution.
But as the report notes, this almost all meets the definition of torture: GBH inflicting broken bones and “non-fatal shooting”, as well as “lower level” sexual abuse is pretty serious stuff. If somebody shot you in the knee while holding you captive, would you think it “proportionate” for them to be prosecuted? The MOD would not – subject to an unspecified future review.
The question of the work of the IHAT being frustrated by senior management is one of those instances where the content of the report is at such variance with its conclusions, it is pretty clear that these were not written by the same people. In fact, the report returns to the concerns of IHAT staff again, plainly giving real weight to something earlier paragraphs had already dismissed:
408. The Office spoke with a number of former staff of IHAT who held different levels and functions. This sample of individuals was to some extent self-selected (being persons who were willing to speak to the Office). Accordingly, there may be limits to the representativeness of their experiences as compared with that of former IHAT staff as a whole. The Office nonetheless notes that the views of these individuals were on the whole balanced, as evidenced through their advancement of both praise and critique for various aspects of IHAT’s work. The Office also accepts that these individuals were not natural ‘whistle-blowers’. As former law enforcement personnel bound by confidentiality undertakings with their former employer and liable for penal sanction for potentially breaching protections on classified information, they may have been naturally reticent to speak with the ICC, which also reduces their likelihood of having made frivolous or malicious allegations. On the whole, the information received by the Office corresponds to the reports made in the BBC Panorama programme and in the Sunday Times.
409. The Office views with concern the fact that professional IHAT investigators – drawn from experienced retired officers of civilian police forces or serving Royal Navy Police personnel – would have made allegations of a cover-up or expressed concerns over the fate of the IHAT investigations that they worked on.
The schizophrenic report attempts to reconcile this by constantly referencing only para 2 (a) of the admissibility criteria, and claiming that neither the lack of prosecutions nor the allegations of IHAT staff give conclusive evidence that criminals are being deliberately shielded from prosecution. The report claims on the basis of previous court decisions that for a case to be admissible, “shielding” by the state must be proven to the standard of criminal proof.
I am not sufficiently expert in the court’s previous judgements to know if that is true. But on the face of it, it is an extremely curious view of the admissibility criteria, read as a whole. Even apart from that, the evidence of shielding of soldiers by the MOD appears to be fairly compelling; certainly enough to justify further investigation.
The detail of the report gives ample evidence, much of it from UK courts, that cases are not being adequately investigated, that prosecutions are not being properly pursued, and that the military are conspiring – “Closing ranks” as more than one senior judge has put it – to cover up crimes, and getting away with it.
The commanding officer referred Baha Mousa’s death for investigation by the RMP’s SIB, which was concluded in early April 2004 and resulted in the court martial of seven soldiers of the QLR. The court convicted Corporal Donald Payne of inhuman treatment but acquitted him of manslaughter and perverting the course of justice. He was sentenced to one year’s imprisonment. Payne appears to have been the first British soldier ever to be convicted in the UK of a war crime. In the case of five other defendants, the Judge Advocate ruled that there was no case to answer due to lack of evidence, while two further accused were cleared by the
jury of negligently performing the duty of ensuring that detainees were not ill-treated by men under their command.331 Justice MacKinnon, who presided over the court martial, acknowledged that despite his finding that Baha Mousa’s injuries were the result of numerous assaults over 36 hours “none of those soldiers have been charged with any offence simply because there is no evidence against them as a result of a more or less obvious closing of ranks”.
A similar example:
217. Naheem Abdullah died from a blow or blows to the left side of his head inflicted by one or more soldiers of a section of the 3rd Batallion of the Parachute Regiment while in their custody in Maysan Province on 11 May 2003.346 Naheem Abdullah’s death was investigated by the RMP’s SIB in 2003 and seven soldiers were charged with murder. At a court martial on 3 November 2005, the Judge Advocate found that the evidence did not permit a conclusion to be drawn on the individual responsibility of each defendant. The Judge Advocate criticised the RMP’s SIB investigation as “inadequate” with “serious omissions” by investigators in not searching for records of hospital admissions or registers of burials.
218. During the Ali Zaki Mousa litigation, the UK High Court noted its concern that IHAT had not taken the case forward despite the court martial finding that the death was a result of an assault by the section to which the soldiers belonged.
219. On 27 March 2014, the Secretary of State for Defence announced that an IFI investigation into Naheem Abdullah’s death had been commissioned in order to comply with the High Court’s decision in Ali Zaki Mousa (No. 2) but that “no prosecutions will result”. The IFI made “exhaustive inquiries about the whereabouts of the transcript of the court martial” but concluded it had probably “been destroyed or thrown away”. It further noted that the soldiers had not given oral evidence, been examined or cross-examined and found that the “need for them to give oral evidence” was a “critical aim” of the IFI inquiry.
In what universe is this not an unwillingness or inability of the UK authorities genuinely to prosecute? If this were a stabbing by a group of civilian youths, they would all be banged up under the doctrine of “common purpose”. The difficulties of prosecuting criminals who stick together are by no means the sole preserve of the armed forces, and the days when nobody could be convicted because of the problem of proving which gang member struck the fatal blow are long gone in civilian life.
The sole difficulty here is the prosecutors’ and investigators’ unwillingness to use the toolbox regularly used against gangs or organised crime, against self-protecting groups of soldier war criminals. The criminals are indeed being shielded.
Para 228 further shows the MOD’s failure in this regard is systemic:
As IHAT/SPA set out to the Office: 7 defendants were prosecuted during a six month court martial, with the case against all but 2 being dismissed by the judge at the conclusion of the prosecution case. The reasons for this outcome are complex but relate to the quality of the evidence given by the British soldiers who were called as witnesses by the prosecution. While the defence did not dispute that the detainees in this case had been subjected to serious mistreatment, including acts of violence, during their detention at “BG Main”, the detainees themselves were unable to identify which individual soldiers had been responsible for which aspects of their mistreatment or for which assault. This was primarily because the detainees had been hooded for most of the relevant time. Several of the soldiers who were called as witnesses by the prosecution proved reluctant to provide evidence against those with whom they still served, leading to what the Judge Advocate, a senior judge from the civilian system who had been brought in to try this case, described as a “more or less obvious closing of ranks”. The 2 defendants against whom the case was not dismissed at the conclusion of the prosecution case were subsequently acquitted by the Military Board after consideration of all of the evidence.
Finally, one last paragraph to illustrate that the conclusion of the report is completely incompatible with its internal evidence:
250. The Baha Mousa Inquiry report, published on 8 September 2011, made findings on the death of Baha Mousa in British custody in Basra after several days of abuse in September 2003. Five years prior to the report, seven suspects had been subject to the pre-IHAT procedure described above, which resulted in six acquittals at a court martial and one conviction for the war crime of inhuman treatment (following a guilty plea). The report found that British soldiers had subjected detainees to serious, gratuitous violence and that although doctrinal shortcomings may have contributed to the use of a process of unlawful conditioning, it could not “excuse or mitigate the kicking, punching and beating of Baha Mousa which was a direct and proximate cause of his death, or the treatment meted out to his fellow Detainees”.414 The findings did not inspire new prosecutions. On 8 June 2017, during a hearing to review the progress of IHAT investigations, Justice Leggatt noted that it was “difficult to understand why almost six years after a major public inquiry was finished in 2011 there has been no resolution of the question whether to prosecute anybody in relation to Baha Mousa.”
Yet the International Criminal Court claims not to have sufficient evidence that the UK government is not genuinely pursuing prosecutions: and remarkably states that even the passing now of legislation specifically to give an amnesty to soldiers for historic war crimes, does not radically affect its judgement as to the MOD’s practice and intent.
This report is a nonsense. It is based on adopting the UK MOD gaze throughout, and accepting that everything statted by UK official sources is true and given in good faith, which is never even questioned. The failure even to entertain the notion that the UK is acting in bad faith renders the report utterly pointless. Never can a report have been written on any subject where the internal evidence was so utterly incompatible with the conclusion. The report is the responsibility of prosecutor Fatou Bensouda. I find her motives as baffling as her conclusions.
What is however plain is that I can no longer argue that the ICC is an impartial body. Its protection of the UK not only over the initiation of the Iraq War, but even over the many crimes committed by its working level soldiers, let alone those who commanded them, stands in such stark contrast to the ICC’s treatment of those viewed as the designated enemies of the Western powers, that it has lost all moral authority.
I leave you with Ms Bensouda’s conclusions:
502. The Office recalls that, based on its evaluation of the totality of the information available, it cannot conclude that the UK authorities have been unwilling genuinely to carry out relevant investigative inquiries and/or prosecutions (article 17(1)(a)) or that decisions not to prosecute in specific cases resulted from unwillingness genuinely to prosecute (article 17(1)(b)). Specifically, for the purpose of article 17(2), the Office cannot conclude that the relevant investigative inquiries or investigative/prosecutorial decisions were made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; that there has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice; or that the proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.
503. On this basis, having exhausted all avenues available and assessed all information obtained, the Office has determined that the only appropriate decision is to close the preliminary examination and to inform the senders of communications. While this decision might be met with dismay by some stakeholders, while viewed as an endorsement of the UK’s approach by others, the reasons set out in this report should temper both extremes.
Do you feel a little bit sick too?