John Bellinger’s Op-Ed on ISIS and the ICC (Updated)

by Kevin Jon Heller

The op-ed, which appears in today’s New York Times, argues that the ICC is the most appropriate venue for prosecuting ISIS’s many international crimes. I have great respect for John, who is unique among former high-ranking US government officials in his willingness to defend the ICC, but the op-ed makes a number of arguments that deserve comment.

It certainly makes more sense for the court’s prosecutor to investigate the Islamic State than to investigate the United States or Britain for treatment of detainees or Israel for its handling of last year’s Gaza conflict, as some activists have called for.

There is no question that ISIS is responsible for horrific international crimes that deserve to be prosecuted. But does it “certainly make more sense” for the ICC to prosecute those crimes than British torture in Iraq, US torture in Afghanistan, and Israel’s vast array of crimes against Palestinian civilians in Gaza? That’s not self-evident. Readers know my skepticism toward the ICC investigating the situation in Palestine, but the expressive value of prosecuting UK or US military commanders and political leaders for torture would be incalculable — it would get the ICC out of Africa; it would affirm that torture, a crime that rarely involves a large numbers of victims, is unacceptable and deserving of prosecution; and — of course — it would demonstrate that no state, no matter how powerful, is immune from international criminal justice.

At a minimum, the Security Council should ask the court to investigate the numerous offenses committed by the Islamic State that fall within the court’s mandate.

[snip]

A Security Council request would be necessary because Iraq and Syria, where the Islamic State is operating, are not parties to the Rome Statute (the treaty that created the court) and are not otherwise subject to the court’s jurisdiction.

A Security Council referral is not actually necessary, because the ICC’s jurisdiction is not simply territorial. The Court can also prosecute any international crime committed by a national of a state that has ratified the Rome Statute. Many ISIS leaders are nationals of ICC member-states — including Jihadi John, who is a UK national. So the ICC could prosecute those leaders tomorrow if it had them in custody. Indeed, Fatou Bensouda has already mentioned the possibility of such nationality-based prosecutions.

Moreover, a Security Council referral may be more trouble than it’s worth. John himself notes a major problem: if the territorial parameters of any such referral exposed members of the Syrian government to ICC jurisdiction, Russia and/or China would almost certainly veto the referral. And what if the referral exposed Syrian rebels to ICC jurisdiction? I can’t imagine the US, France, and the UK would be too keen about that — not least because it would provide the ICC with a backdoor to prosecuting their nationals for aiding and abetting rebel crimes.

The United States has reason to be concerned about inappropriate and politicized investigations of the United States and Israel.

I don’t see why, given that the ICC has not opened a formal investigation in Afghanistan despite having examined the situation for eight years and has only had jurisdiction over Israel’s crimes for a few months. Moreover, John never explains why any ICC investigation of the US or Israel would necessarily be “inappropriate and politicized,” given that both states have quite obviously committed crimes within the Court’s jurisdiction. Why should the ICC only prosecute the US’s enemies — never its friends, and certainly never the US itself? Americans and Israelis might like that idea, but I imagine few others would accept it.

[B]ut the International Criminal Court still has an important role to play in investigating and prosecuting acts of genocide, war crimes and crimes against humanity — all of which have reportedly been committed by the Islamic State.

I’m not so sure, at least in the context of ISIS — and this is my basic issue with John’s op-ed. Does the ICC really need yet another situation to investigate, given its already overtaxed resources? And do we really want the Security Council to refer the ISIS situation, given that there is almost no chance it will finance the resulting investigation? (See, for example, the failed Syria resolution.) Moreover, why should the ICC prosecute ISIS leaders when states like the US, the UK, and Japan (and Germany, and France, and…) are just as capable of prosecuting those leaders themselves — if not more so? They have investigative and prosecutorial resources the ICC can only dream of. So why should the ICC do their work for them?

I’ve said it before, and I’ll say it again: we need to stop assuming that the ICC is always the best venue for prosecuting international crimes. It’s not. It’s a weak Court with more failures than successes on its ledger. Even under ideal circumstances — unlikely to exist — it would never be able to prosecute more than a handful of ISIS leaders. And if past cases are any indication, there is no guarantee those prosecutions would lead to convictions. So if states really want to bring ISIS to justice, the solution is there for all to see.

They should do the job themselves.

NOTE: I am not implying that John invented the idea that the ICC should investigate ISIS crimes. As he notes in his op-ed, the new UN High Commissioner for Human Rights has previously suggested the same thing. But that in no way changes my position — and I think it’s unfortunate that High Commissioners see the ICC as the first resort instead of the last, even in situations (such as ISIS) where, unlike states, the ICC has no ability to effectively investigate. The previous High Commissioner exhibited the same problematic tendency, calling on the Security Council to refer Syria to the ICC despite the fact that the Court would be powerless to investigate Syrian and rebel crimes as long as the conflict continues. Security Council referrals only make sense after a conflict has ended — and not even there, unless the Security Council is willing to give its referrals teeth by funding the subsequent investigation and punishing states for not cooperating with the ICC, which it has shown no interest whatsoever in doing. Do we really need more failed ICC investigations like the one in Darfur?

http://opiniojuris.org/2015/04/02/john-bellingers-curious-op-ed-on-isis-and-the-icc/

5 Responses

  1. Of course John is wrong on proseucting US torture at the ICC. It would be better if it was done in US domestic courts, but all these efforts to discourage prosecution have borne fruit – unfortunately.

    John comes to this with unclean hands – see John Rizzo’s description of John’s role in the U.S. torture in Company Man (2014).

  2. Thanks for the post kevin . I would like to offer you , another angel with your permission :

    The world is divided, extremely so. Many states claim that the world or the” world system” , is unjust ( Iran , china , Venezuela , cuba , some arab countries and so forth… ) The world is dominated by the hegemony of super powers according to them .

    In such, state tribunals, are less recognizable, or have less potential for setting the appearance of fairness and just system and anyway prosecution and trials . The world needs desperately a universal and decent tribunal. From my experience , the best candidate , most reliable for the time being , is the ICC ( since it is European one , but too complicated …. ) and the proof :

    The Hamas indeed, a very radical group or entity, generally speaking, trust almost fully that court (thanks among others, to Goldston report at the time, and many European leftists helping the Hamas in Gaza).
    By the way , if you haven’t heard yet , you can add the situation in Colombia , to the work load of the prosecutor , here :

    http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr1090.aspx

    Thanks

  3. Yes, Ben. He was legal adviser to Condi Rice while she ran the admitted “program” of secret detention (forced disappearance) and “tough” tactics (like torture/waterboarding and the cold cell, death threats, snarling dogs for terror purposes, closed coffin with bugs for terror purposes) at NSA and in the White House Situation Room (with visits from Cheney, Addington, John Yoo et al.).
    Afghanistan is a party to the ICC — thus Art. 12 circ. can be met.

  4. p.s. thanks to Obama, there is no way that complimentarity re: U.S. prosecutorial efforts will obviate ICC jurisdiction.

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  1. […] an aim, there remain glaring problems with referring a group like ISIS to the Court. Many of these issues have already been raised elsewhere. In order to shake things up a bit, I thought it might be useful […]