UK backs International Criminal Court since it can’t prosecute Britons

The UK has “nothing to fear from the ICC”, then prime minister Tony Blair wrote in a June 2002 letter released to the National Archives.

At a time when the statute of the new International Criminal Court was about to enter into force, some Western officials were worried their soldiers might be prosecuted for crimes committed overseas.

But in a letter to Australian prime minister John Howard which was among files declassified this week, Blair wrote: “We believe the ICC Statute provides fundamental safeguards against malicious and politically motivated prosecutions”.

The first safeguard was the “complementarity principle which gives national jurisdictions first claim on any investigations involving their territory or their nationals”.

He added that “British courts will retain the primary right and responsibility to investigate allegations against UK nationals in respect of ICC offences irrespective of where they might have been committed”.

Blair concluded: “We envisage the ICC acting only in the case of failed states or where judicial processes have broken down”.

Officials in the Australian government were worried about the ICC’s remit. But Blair reassured Howard by writing “We believe that responsible democratic states, where the rule of law is respected, have nothing to fear from the ICC”.

The files suggest officials were primarily concerned with the possible prosecution of British soldiers operating overseas.

But the understanding that the ICC would not prosecute British nationals almost certainly extends to ministers or officials in cases of their possible indictment for complicity in war crimes, as currently with Gaza.

Crimes in Iraq

Newly-released files at the National Archives show British officials provided the same reassurance three years later when military commanders were worried their soldiers might be prosecuted for crimes in Iraq, which had been invaded in March 2003.

A memo of 17 July 2005 written to Blair by John Reid, then the defence secretary, outlined fears expressed by a number of former leaders of the armed forces about human rights legislation “being imposed upon the military”.

The memo cited “recent charges against our soldiers in Iraq”, a campaign which was described as “surrounded (at best) by controversy and (at worst) by allegations of illegality”.

Reid wrote: “What really worried them [the former military chiefs] is the scope for the military justice system to be over-ruled [sic] by the civilian system, and both subsequently to be overruled [sic] by the International Criminal Court”.

But the defence secretary concluded: “I am assured by officials that the ICC will never realistically be able to do this (although I suspect they will try their hand from time to time).”

‘Such prosecutions will not in fact take place’

A similar conclusion was reached by Blair’s private secretary for foreign affairs, Antony Phillipson, in a letter to the prime minister on 15 July 2005.

Phillipson noted that two former military chiefs, Field Marshal Peter Inge and Admiral Michael Boyce, “claimed that armed forces personnel could be prosecuted before the ICC”.

“In extreme circumstances this is true”, wrote Phillipson. “But there are good reasons for believing that such prosecutions will not in fact take place”.

The first reason was that most of the allegations against UK forces in Iraq “were spurious or unsubstantiated”, he claimed.

The second, echoing Blair’s 2002 letter to Howard, was that the ICC prosecutor would have to conclude that British courts were not able or willing to undertake prosecutions. Phillipson assured Blair that this was “extremely unlikely”.

He concluded by writing: “This is not, of course, an absolute guarantee that no UK personnel would ever end up before the ICC”. But, he wrote, it “provides a very high degree of assurance”.

Blair responded to the memo in handwritten notes. In a section where Phillipson wrote that the ICC’s prosecutor was expecting not to pursue an investigation into allegations he had received about British troops in Iraq, Blair penned: “This is vital”.

At the end of the memo, Blair wrote: “We have, in effect, to be in a position where the ICC is not involved and neither is [the] CPS”, referring to Britain’s Crown Prosecution Service.

“That is essential”, the prime minister wrote.

‘The ICC cannot indict our servicemen’

Blair had claimed to Howard in his 2002 letter that the ICC’s establishment was “a landmark event in the administration of international justice”. British officials worked to help bring the ICC into being and welcomed its establishment in 1998.

But declassified files make clear that Britain only signed up to the ICC when it became clear

that UK nationals would not be able to be prosecuted by it.

Files from 1998 released in 2022 are especially revealing about the UK government’s negotiating stance towards the ICC.

The files make clear the British understanding that “the Court may only act when national legal systems are unable or unwilling to do so”. Without this, “we could not sign the Statute”, officials in the Ministry of Defence and Foreign Office agreed.

The key was “to protect our servicemen from unwarranted Court action” and there was a particular sensitivity over British troops operating in Northern Ireland.

When foreign secretary Robin Cook gave instructions to officials negotiating the ICC Treaty in May 1998, he wrote: “You should seek to secure a definition of internal armed conflict which is sufficiently restrictive to ensure that British servicemen in Northern Ireland are protected from unjustified investigation”.

By 2000, the understanding in Whitehall was just as clear. Senior cabinet office official Robert Cooper wrote in October 2000 that “our legislation will make sure that the ICC cannot indict our servicemen unless we wish it to”.

Right to use nuclear arms

It was not a foregone conclusion that the UK would sign up to the ICC, despite this being a Labour party manifesto commitment for the 1997 general election.

Defence secretary George Robertson wrote in July 1998 that “If we really cannot get an acceptable package we should be prepared not to sign”.

A particular red line for British officials in acceding to the ICC was the right to use nuclear weapons.

A “minimum UK requirement” in the negotiations shaping the ICC was that the body must not “criminalise the use of nuclear weapons”, foreign secretary Robin Cook outlined in July 1998.

“If these [nuclear arms] were included in the list of outlawed weapons we would not sign” the treaty, wrote Chris Deverell, Robertson’s private secretary, in July 1998.