n March 2003, the United States (US), United Kingdom (UK) and its allies invaded Iraq as part of Operation Iraqi Freedom. The invasion was launched on the orders of the then US President, George W.Bush and UK Prime Minister Tony Blair ‘to disarm Iraq of weapons of mass destruction, to end Saddam Hussein’s support for terrorism and to free the Iraqi people.’There was no UN Security Council Resolution authorising the invasion. The invasion was subsequently justified by the US and UK on grounds that existing UN Security Council Resolutions relating to the 1991 Gulf Warandlater inspections of Iraqi weapons programs had already authorised the invasion. Inarecently releasedsecret memo, Prime Minister Tony Blair reassuredUS President Bush seven months before the invasion that ‘Iwill be with you, whatever.’The invasion had threephases. The first phaseinvolved a ‘shock and awe’aerial bombardment over a few weeks in which coalition troops launched air assaultsover Iraqi oilfieldsand ports, followed by groundforces advancinginto mainland Iraq, seizing Baghdad and its government ministries.The second phase, from 2003 to 2007, saw the coalition (US andUK) forces fighting a growing sectarian insurgency whilst claiming to rebuild major Iraqi state institutions. Thethird phase, from 2007 to date, has seen the US gradually and eventually withdrawingtroops and handing over security responsibilitiesto the Iraqi government, military and police.Iraqi PrisonersFrom 2003 to 2004, US forces captured numerous insurgent fighters and housed them inthe Abu Ghraib prison in Iraq. Members ofthe US forces allegedly subjected at least hundreds of these prisoners to torture, cruel treatment and outragesupon personaldignity.This was in accordance with anexecutive order signed by then US Defence Secretary Donald Rumsfeld authorising the use of interrogation tactics with a handwritten comment in the margins:‘make sure this isaccomplished.’These tacticsincludedsleep deprivation, playing loud rock music for 24 hours a day,forcing prisonersto stand in stress positions,hooding prisoners and theuse of dogs.
A further thirtyprisoners were transferred to secret detention sites in Poland, Romania and Lithuania where members of US forces allegedly subjected them to torture, cruel treatment, outrages upon personal dignity and rape. US forces subsequently tried and convicted elevenUS soldiers for these acts, with most receiving only minor sentencesand only in respect of crimes committed in Abu Ghraib. There have been no investigations or prosecutions for actscommitted in Poland, Romania or Lithuaniaby the United States or Poland, Romania or Lithuania (each of whom have signed bilateral immunity agreements with the United States).The Iraqi InsurgencyThe city of Mosul, which had a pre-war population of approximately 600,000 ethnic Yazidis fell to US armed forces early in the war.On November 2007, the spiritual leader of the Iraqi insurgence, Abu Musab al Zarqawi(AMZ), convened a meeting with key commanders.AMZstated that hethought it would be a good idea to retake Mosul and execute allinhabitants who sided with the US forces to send a message to other US held cities about their fate if they did not support the insurgents’mission. Most attendees at the meeting agreed this was an excellent ideaand pledged to contribute whatever was needed to complete the task. One of the commandersat the meeting, Zayif,protested,stating that killing unarmed peoplewas against hiscode of honour, but AMZ promptlyshouted: “I know where your family lives! Do your part or else!”Two days later, Zayif deployed several units of Insurgent forces around Mosul. The city by this time had around 300,000 mainly Yazidi inhabitants left, of whom50,000 were activeUS and coalition force members and a further 10,000 were hors de combat. Over the next few months, insurgentunitsindiscriminately fired improvised explosive devices at the city on a daily basis, causing hundreds of deaths. Many,but not all, of the victims were Yazidi civilians. After weeksof daily attacksagainst the city, AMZ ordered his commanders to take the city of Mosul and kill everyone who remained alive, stating “This will send a message to the traitors thattheir chance to surrender is over. From now on, our goal is to kill any who side with US forces.”After consuming a large dose of prescription drugs to relievea chronic muscle pain condition, which resulted in dizziness and disorientation for some hours given his inadvertent dehydration at the time, Zayif passed the order on to his subordinate units. The units then took over several outlying suburbs of Mosul over the course of theweek, and then proceeded to execute10,000Yazidi menwhile capturing the remaining 40,000 Yazidi women and children as slaves(the rest of the population had fled). AMZ received real-time updates on the killings from Zayif, and when he heard about the capture of the 40,000 slaves he replied‘Zayif hassurprised me with a gift.’No insurgent fighters were investigated or prosecuted for their participation in the attack on Mosul, either by Iraqi courts or US/UK forces.
ICC Investigation and Arrest
On 4 July2021, Iraq deposited its instrument of ratification of the Rome Statute with an attached declaration asking for the Court to exercise jurisdiction over its territoryfor all acts from 1 July 2002. On 4 November 2021, the ICC Prosecutor soughtapproval from a Pre-Trial Chamber to open an investigation into the situation in Iraq. The application was granted in early 2022.In mid-2022, Zayifvoluntarily travelled to The Hague to speak to ICC investigators about his role in the attackon Mosulin the belief that he would receive amnesty for providing the Court with important information. Hewas arrested by the Dutch police upon arrival pursuant to a sealed ICC arrest warrant and sent to prison to await the confirmation hearing against him, on charges of war crimes, crimes against humanity and genocide. The day after his arrest, the Prosecutor gave a press conference at which she stated that she had “a strong caseagainst an accused who has done so much damage toinnocent Iraqis”and that “crime doesnotpay.”The Prosecutor then assigned a team of 30 lawyers to work on the case against Zayif,who in contrast, was assigned by the Court threelawyers and a single investigator (new to the job) to assist in his defence.It is now 2023. Zayifremains in prison without yet having attended a confirmation hearing. He claims there have been deliberate delays in providing medication for his muscle condition which has led to him suffering bouts of severe pain. He claims the pain has also affected his ability to prepare his defence. Inthe meantime, AMZ has declareda new ‘state’called Daeshover parts of Iraqi, Syrian and Jordanian territoryandhimself as Leader. The new‘state’has been recognised by only two other states (Tunisiaand Libya) whichAMZ visits from time to time to boost relations.Questions:You MUST answer ALL of the followingThe Prosecutor of the ICC has asked for your advice in relation to the following issues:
1.Any jurisdiction and admissibility issues in relation to the members of the US armed forces involved in mistreating prisoners? (10 marks)
2.Could Prime Minister Blair or President Bush be charged with the crime of aggression?(10 marks)
3.Could Donald Rumsfeld be charged with any crime?If so, through which mode(s) of liability?(10 marks)
4.The ICC is considering the preparation of an arrest warrant for AMZ. What, if any, charges (i.e. crimes) could be broughtagainst him?(30 marks)
5.Through which mode(s) of liability could you charge AMZ? (15marks)
6.Any procedural or defence issues arising in respect of Zayif? (15 marks)
7.Any immunity issues which may arise in respect of the US President, UK Prime Minister or AMZ? (10marks