Thread by @kiphale

1)Yesterday's announcement by #ICC #OTP that it has closed the preliminary examination of alleged #UK crimes in #Iraq caused dismay in the #ICL commentator class. Some thoughts for what they are worth (which many may think is not worth much!) icc-cpi.int/Pages/item.asp…

2)Let us begin by stating the clear reality that int'l crim. justice, while still in its infancy, is imbalanced in its application. This is a serious legitimacy problem that must be consistently worked on; ICC leadership, on many occasions, has acknowledged as much.

3)I must qualify my next statements by saying that I am not privy to the evidence and numerous factors at hand (i.e. more info could change my mind easily) W/that said, it seems clear that the crux of this matter occupies the very gray areas of the #RomeStatute & complementarity.

4)Taking its statement at face value, the #OTP was in the classic "damned if you do, damned if you don't" scenario. On one hand, the underlying facts demonstrated the commission of #atrocitycrimes and a state doing a poor job of holding its own accountable.

5)On the other hand, the state has taken complementarity measures that could be easily demonstrated&past failings by that state made the prosecutions of cases impossible despite apparent efforts to take cases forward (at least, from ICC's outside perspective, it seems as so).

6)As such, it made the likelihood that the OTP would lose a complementarity/admissibility fight (one that the UK would likely have waged) quite high. By extension, any case on the merits would never happen,&potentially prejudiced future proceedings/make less likely.

7)Given the near-constant criticism (often justified) that the OTP must stop wasting resources on bad cases w/ low chances of success, one could make the argument that a)the OTP listened & b)it made a difficult, but necessary choice on the best use of its very limited resources.

8)What I find most reprehensible by my fellow #ICC commentators is statements or inferences the #OTP is some sort of handmaiden of protecting the imbalanced application of int'l crim justice. Not only is it empirically wrong, but it's counterproductive. #CircularFiringSquad

9) Sorry @YannisKalpouzos but this is not only cynical but flat wrong and clearly unhelpful. Many others have made similar comments such as @philclark79

https://twitter.com/YannisKalpouzos/status/1336723114110160896?s=20

10) Let me remind everyone that the chief prosecutor and a senior OTP official are currently under US sanctions (!) for specifically trying to correct this imbalance and hold a global power to account. She cannot even access her bank account! nytimes.com/2020/10/18/wor…

11)Further, OTP is also in crosshairs of Moscow (vis-a-vis #Georgia investigation)&Jeruselam/Tel Aviv (vis-a-vis potential #Palestine investigation).It is simply not credible or principled to say that the OTP is somehow protecting global powers or maintaining this imbalance.

12) To be clear, the OTP is not perfect (far from it) and some have legitimately argued that it has not done enough to correct this imbalance/complicated matters. Yet, ICC is certainly putting its neck on the line to forge a more balanced application of ICL/ICC's jurisdiction.

12)Certainly, the #UK has received justified flak for not holding its own accountable&bringing justice to victims of these alleged crimes, so it is not as if the ICC is being criticized in lieu of the #UK.

13) However, I have not seen much (it may be there, but again, have not seen much) that the #UK is being criticized on atrocity crimes accountability w/in the construct of the #RomeStatute system, particularly given that it is a leading State Party.

14) The ire of the #ICC commentator class is fixated on blaming ICC primarily for this specific situation/outcome, when it seems clear that UK was well-placed to take advantage of the gray areas of complementarity/admissibility against a resource-strapped, under-supported OTP.