Global Policy Forum

By Chris Stephen

Iraq may be preparing to report alleged British wrongdoing to the ICC - but will the charges stick?

The International Criminal Court, ICC, is a phone call away from involvement in the Iraq war. Officials say that that's all it would take for Baghdad to give the court jurisdiction in the current invasion. Wondering about whether Saddam Hussein will do it has become a big Hague talking point in recent days as war crimes allegations fly from all sides.

One reason why the call won't be made is that the court's prosecutions cut both ways. If Baghdad signed up to the ICC, even for the duration of this war - which it is entitled to do - to pursue a prosecution against the Americans who are not signatories to the court, it would also be at risk from war crimes indictments.

Iraq has already accused the United States of war crimes, blaming it for, among other things, the missile that killed 52 people in a Baghdad market and the death this week of seven women and children at a checkpoint.

Meanwhile, America has slammed Iraq for mistreating prisoners, and also for using soldiers in civilian clothes - a war crime because it puts genuine civilians in greater danger of being shot by jumpy troops.

In fact, Baghdad appears to be taking a different approach to war crimes - by singling out British fighting around the southern city of Basra. "The British (open) fire when we are having food distributed in Basra," said Information Minister Saeed al-Sahaf. "The British, not the Americans."

The distinction matters: Britain is a member of the ICC - and Baghdad, though it is not signed up to the court, has the right to try to bring a prosecution against the UK. Al-Sahaf, who suggested that Iraq had already begun this process, said the Iraqi authorities had been advised by a number of legal groups based in Europe, Latin America and other Arab countries.

War crimes lawyers here doubt, for the moment, that the Iraqi charges will stick. Civilians continue to be hurt and terrorised by the fighting, but their suffering is likely to fall into the legal grey zone in which armies can claim that such casualties are unintended.

"It's a tricky question, but basically, if you bomb a factory and a civilian happens to be walking by, that's not regarded as a war crime," said one war crimes barrister. But if the British lay siege to Basra - cutting the one road that for the moment allows supplies in and refugees out - all that could change.

ICC law forbids "launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects".

This may explain the reluctance of London to throw its troops into a full-scale attack on Basra. "The idea that you can lay siege to a city and starve them out, that's unacceptable," said a war crimes official here. "The law is dead clear. You are responsible if the suffering is a reasonably foreseeable consequence of your actions."

Whether any legal moves will follow the shooting of the seven unarmed Iraqi civilians this week is less clear. At first, the United States insisted Marines at a checkpoint had shot only after a series of warning shots.

Navy captain Frank Thorp said the soldiers had first fired in the air, then later into the van's engine, only aiming at the occupants - all unarmed women and children - when the vehicle refused to stop.

But a Washington Post reporter embedded with the unit contradicted this, reporting that the soldiers fired no warning shots. It quoted a US captain Ronny Johnson, at the site, shouting, "You just (expletive) killed a family because you didn't fire a warning shot soon enough!" Even if the ICC gets jurisdiction for an inquiry, it is unlikely a prosecution would succeed.

This is because, firstly, the court is angled towards only the worst crimes - it was set up to prosecute genocide and other crimes where large numbers of civilians are killed. Also, even if the troops acted recklessly, the killing is a ghastly mistake, rather than a deliberate policy to target civilians. But as the final attack on Baghdad nears, the line between acceptable and unacceptable collateral damage may be tested as never before.

Chris Stephen is IWPR's project manager in The Hague.

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