Recent Case: International criminal law: A selected case

• Jurisdiction: South Africa
• Published date: 24 May 2019
• Pages: 136-141
• Author: Salim Nakhjavani
• Date: 24 May 2019
• Citation: (2007) 20 SACJ 136

International criminal law:

a selected case

SALIM NAKHJAVANI

University of Cape Town

On 9 February 2006, the Prosecutor of the International Criminal Court

made public his reasons for declining to initiate an investigation into the

conduct of British troops during the most recent conflict in Iraq — that

is, the conduct of hostilities by British armed forces on Iraqi territory

from March 2003 (Operation Telic). The significance of the Prosecutor’s

decision was cast in sharp relief when, one year later, a British High

Court Judge ruled that a commanding officer had no case to answer and

directed a court martial to acquit several soldiers accused of war crimes

and other offences (M Evans ‘Case collapses against British soldiers on

trial for war crimes against Iraqis’ The Times 16 February 2007).

The Prosecutor’s decision takes the form of a letter of ten pages over

the signature of the Prosecutor (‘Iraq response’, 9 February 2006, avail-

able at www.icc-cpi.int/organs/otp/otp_com.html, accessed on 23 August

2006 (hereinafter ‘the Decision’)). Presumably, this letter serves as a tem-

plate for responses to the more serious communications concerning the

situation in Iraq and — as explicitly stated — seeks to fulfil the Prosecu-

tor’s statutory duty to inform communicants of the exercise of his pro-

prio motu power to decline to initiate an investigation (Rome Statute of

the International Criminal Court 37 ILM 1002 (1998) at art 15(6)). This

statutory duty is amplified by Rule 49 of the Court’s Rules of Procedure

and Evidence, which directs the Prosecutor to provide a prompt

response upon his decision not to proceed with an investigation, ‘includ-

ing reasons for his or her decision’.

The legal basis for an exercise of prosecutorial discretion to decline to

136 SACJ *(2007) 1

(2007) 20 SACJ 136

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