Young men are covered in dust as they flee violence in northern Iraq (Photo: Rodi Said / Reuters)
Despite ongoing violence and the alleged massacre of eighty Yazidi men in northern Iraq by Islamic State militants, there is remarkably little debate about whether or not the deteriorating situation in northern Iraq should be referred to the International Criminal Court (ICC). But if violence continues, it should be expected that the murmur of voices calling on events in Iraq to be investigated by the ICC will grow. In some respects, the unfolding crisis and conflict in northern Iraq is tailor-made for an ICC intervention. But what would such an intervention look like?
It is important to keep in mind that Iraq is not a member-state of the ICC. As a result, the Court cannot investigate current events in northern Iraq without a United Nations Security Council referral. However, despite it not being a member-state of the ICC, it is also important to remember that the Court is already investigating events in Iraq. Specifically, investigators are examining a trove of evidence suggesting that officials from the UK (which is an ICC member-state) are responsible for the commission of mass human rights violations in Iraq between 2003 and 2008. But, again, because Iraq itself is not a member-state of the ICC, the Court does not have jurisdiction to investigate, let alone prosecute, other crimes committed on Iraqi territory.
One might be tempted to argue that, because of the UK and US’s 2003 invasion of Iraq and the incessant allegations that individuals from both states committed international crimes during that time, these permanent, veto-wielding UN Security Council member-states would be loathe to refer Iraq to the ICC. Indeed, this might even explain some of the radio silence regarding a referral of Iraq to the Court.
There is no doubt that Western citizens allegedly responsible for crimes committed in Iraq should be held accountable – and it is a welcome sign that these crimes are currently being investigated the ICC. But those allegations can be held separately from the alleged atrocities currently being committed in the north. As they have in the past, UN Security Council states could tailor a referral to ensure that any ICC investigation be strictly focused on recent events in northern Iraq. Of course, whether or not they should is another matter.
The 2011 referral of Libya to the ICC restricted the Court to investigating crimes committed since 15 February 2011. This had the effect of shielding Western states from scrutiny or investigation for their role in rehabilitating the regime of Muammar Gaddafi and entering into nefarious political, economic and intelligence relationships with him.
An ISIS convoy (Photo: AP)
The UN Security Council’s referral of the situation in Darfur to the ICC in 2005 provides a precedent for restricting an ICC investigation to a specific region – rather than an entire state. So too does the 2003 referral of northern Uganda to the Court (albeit after the Government of Uganda first sought to refer the Lord’s Resistance Army to the ICC).
There should be no doubt that any Security Council referral of Iraq to the ICC would seek to constrain both the temporal and spacial jurisdiction of the Court. This is how the political relationship between the Council and the Court works. Certain states (i.e. Russia and, to a lesser extent, China) won’t want an ICC investigation leaking into neighbouring states (i.e. Syria). Other states (i.e. the UK and the US) won’t want an ICC investigation delving into events in the rest of Iraq and into the past.
Crucially, there exists a broad consensus that ISIS is beyond the pale. The militant group and its allies do not need to be additionally demonized for a consensus about their savagery to emerge. The Security Council has already passed a resolution which levied targeted sanctions against six individuals associated with ISIS and Al-Nusra Front. The Council took the unusual step of immediately naming its targets and noted, of ISIS and the Al-Nusra Front, “the negative impact of their violent extremist ideology and actions on the stability of the region, the devastating humanitarian impact on the civilian populations and the role of these groups in fomenting sectarian tensions.”
ISIS is seen by large swathes of the ‘international community’ as unambiguously ‘evil’. At the same time, there is little-to-no evidence that the Kurdish forces or other Iraqi fighters have committed atrocities that would warrant ICC scrutiny. This asymmetric attribution of responsibility for violence is important. Evidence suggests that the ICC typically intervenes in situations where an entrenched and widely accepted narrative of ‘good’ versus ‘evil’ pre-exists its intervention. The current situation in northern Iraq certainly fits that bill.
It remains to be seen whether the Security Council is – or will be – interested in referring the situation in northern Iraq to the ICC any time soon. Despite a potential case for a referral, there are clear obstacles as well. One potential hiccup for a Security Council resolution is the likely inclusion of a restriction barring the ICC from investigating or prosecuting citizens of states that are not members of the ICC. At the behest of the United States, this controversial provision was included in the Darfur and Libya referrals as well as the failed Syria referral. This could pose a serious quandary in the case of ISIS and its allies because many of their members are not Iraqi citizens.
None of this is to say that the Security should or should not refer the situation in northern Iraq to the ICC. And there should be no doubt: a referral of the situation in northern Iraq to the ICC would not be without shortcomings and serious problems. In particular, heavily politicizing referrals by restricting what the Court can and can’t do based on the interests of a handful of states is costly to the legitimacy and impartiality of international justice. The question is whether an ICC intervention in northern Iraq is worth that cost.
Justice in Conflict 
Mark, thanks for this post. It’s an interesting question but I’m not entirely sure I agree with your analysis and conclusions. The reason there has been no talk of an ICC referral is because… simply put, it is very unlikely this is a case for the ICC. I don’t see what the ICC is supposed to achieve in northern Iraq that the armed forces of the US, Iraq (maybe UK and France soon) can’t do by resorting to military force? And if any ISIS combatant is captured, they will simply be tried by the Iraqis, or maybe extraterritorially by the US for terrorism.
What does injecting ICC into the equation achieve? First, on deterrence: one of the great assumptions underlying international criminal law is deterrence – that referring, or the mere threat of referral, will dissuade parties from committing crimes. I think we all agree that there is no prospect of that happening. As you say, ISIS is beyond the pale, and appeals to reason are a waste of time.
Second, the ICC has no means of ensuring cooperation. Why would anyone want to burden the Iraqi security forces – already overstretched and on the brink of collapse – with the task of enforcing arrest warrants? To what end? This is war, not a game of chess.
Third, and most importantly, why in the world would the US want to have the ICC involved in a conflict in which it is partaking? I understand your comment about the Peshmerga not being suspected of war crimes, and you could have also added the US air force for good measure. Of course, no one has yet raised any claim that these forces are guilty of anything. But this is war. Things spiral out of control. Look at the NATO intervention in Libya, and allegations of NATO bombings that exceeded proportionality, precaution, etc. = war crimes — why would the West want to have a similar hot potato to deal with when it doesn’t have to? And here it’s not just NATO, it’s the US air force and hundreds of military ‘advisors’ (ie combat troops wearing civilian uniforms) partaking in combat. Why oh why would the West, and especially the US, want to have the ICC monitor developments in northern Iraq?
Aside from these geo-political questions, I am also a little unsure about your assessment of what the Security Council can actually do. Its power to tailor these referrals can only go so far. It can refer geographical regions all it wants, but – contrary to your claim – the ICC is not bound by this. Northern Uganda was referred to the ICC (initially just the LRA), but the ICC has since broadened the scope to include the government of Uganda and, crucially, also the entire territory of Uganda. When you look at the ICC webpage, you’ll see it’s no longer the ‘situation in northern Uganda’ — it’s actually the situation in Uganda. OK, that’s a self-referral you’ll say, but I don’t see why the ICC would be bound by SC-authorised geographical limitations anymore than in the case of a self-referral. The ICC is the ultimate arbiter of its jurisdiction, not the Security Council.
More importantly, however, for the purpose of northern Iraq – even if we assume the ICC sticks to that geographical area – there is, in my opinion, no way the Security Council can dictate to the OtP which parties to the conflict it may investigate. Temporal limitations I understand. Geographical limitations, I have a harder time with. But one-sided referrals where the OtP can only prosecute one side to the conflict? No way! Sure, maybe such a nonsensical referral will make it out of the Security Council, but if the OtP accepts such a delegation of jurisdiction, then it loses all credibility. In other words: as an impartial Court, the ICC cannot accept a referral which allows it to prosecute just one side – even if it as bad as ISIS – without losing all credibility and legitimacy.
I realise I may be in the minority of ICC scholars here, but I don’t think the powers of the Security Council are unbridled. I disagree a SC referral can change the terms of the Rome Statute, a multiparty treaty agreed to by the entire international community, anymore than it can require the OtP to investigate just one party to the conflict. Mark my words: if the OtP accepts such a ‘tailored referral’… the ICC as an institution is finished. This will just be ‘victors justice’ without any pretense of impartiality.
Which is precisely why the US will never ever allow a SC referral of northern Iraq. It can sign bilateral impunity agreements all it wants, it can include non-prosecution clauses like the one in the Darfur and Libya resolutions… but if it agrees to refer a situation to the ICC in which its troops are directly involved in military operations, and expects the ICC to accept to simply prosecute “the other side”, then the US government’s legal advisors are just plain naive. The ICC isn’t that spineless.
Thanks for the post, really interesting read on something which I’m surprised we’ve not heard more about (maybe on ICC related matters everyone’s too busy with the Gaza issue)
To the extent that there are question marks over the strategic utility of an ICC investigation from the perspective of restoring security and the objective of stopping the bloodshed, I doubt what a ChVII referral will achieve in the immediacy. At the same time, while ISIS is hardly going to be deterred by an ICC investigation, the possibility that it might put notice on other actors cannot be ruled out so quickly. While I’ve not heard of Kurdish fighters being implicated in war crimes, they’ve got more to lose from allegations and prosecutions for international crimes, so may well be encouraged to remain within the boundaries of the law.
However, putting those strategic objectives aside, the basic point is that ultimately (one should hope) that there needs to be accountability for those who commit crimes that could fall within the Court’s jurisdiction – as you observe, the conduct of ISIS is beyond the pale. If even those responsible for ISIS’s conduct cannot be held accountable, then that is a very sorry indictment of where we are with international justice. This is an organisation against which – for once – there is a consensus on the UNSC. Put differently, there’s more chance of obtaining agreement within the Council re:northern Iraq in principle than there is re: Syria and Gaza, and probably a stronger basis for consensus than there was in Libya. This is not to say the ICC is the ‘best’ place to pursue accountability at some point – but if it emerges to be the only place, then that’s kinda why it was set up, right?
The problem however is selectivity, and the terms of the ICC’s involvement. Certainly, as you state, selectivity (whether forced by the terms of a referral, or by reason of prosecutorial selectivity) is one of the biggest challenges to the Court’s perceived legitimacy. But selectivity will always be here, every referral is inherently political/politicised, and I don’t think that the matter of selectivity in itself is a reason why the Court *should not* be involved.To be sure, it is necessary to consider the legality of the terms of SC referrals, and to consider the impact of such referrals upon the legitimacy of the Court – but the priority should be ensuring that the terms of any referral are legal and don’t undermine the legitimacy of the Court, rather than avoiding referrals at all.
Re: personal jurisdiction – am I correct in thinking that the problem emerges when foreign nationals (whether they be those acting on behalf of intervening states, or those fighting on behalf of non-state groups) fighting against ISIS get involved in crimes? Or if anti-ISIS fighters armed to the teeth with French/US arms start committing international crimes? In this scenario I can see there being a real obstacle to obtaining a referral.
But as for foreign nationals currently fighting for ISIS or alongside ISIS? In this case foreign states have enough of an interest to prosecute those individuals themselves, in which case complementarity would kick in, and the ICC should not be seen a ‘threat’. If the US is willing to kill it’s own nationals in Yemen when they’re considered to be fighting with a militant organisation, I don’t see the objection it would have to one of its nationals being prosecuted for crimes committed while fighting with ISIS. Sure, it would prefer to do it itself, but the ICC system allows that.
Pingback: Weekly Links | Political Violence @ a Glance
Pingback: International Justice and ISIS - An ICC Interve...
Pingback: Why Iraq should join the ICC |
Pingback: Pourquoi l’Irak devrait rejoindre la CPI |
Pingback: Porqué Iraq debe unirse a la CPI |
Pingback: By going after Islamic State and North Korea, ICC can redeem itself | Scroll CMS
Pingback: Can ICC prosecute ISIS crimes? Yes, it can! | MasterAdrian's Weblog
Pingback: The ICC’s Problematic Jurisdiction over Foreign Islamic State Fighters | Vrije Universiteit
Pingback: Why ISIS is not there yet? Challenges and Opportunities For Prosecuting ISIS before the International Criminal Court – Law of Armed Conflict and the Use of Force Blog
Pingback: The ICC’s Problematic Jurisdiction over Foreign Islamic State Fighters | Public International Law in Action