Over the past few weeks, JiC has covered issues pertaining to international justice and accountability in Syria and Iraq, including the wisdom of a United Nations Security Council referral of the Islamic State to the International Criminal Court (ICC). This post continues that conversation, and considers whether a referral of ISIS to the ICC would be useful in achieving justice and peace. This article was originally posted at ISN Zurich.
A growing number of voices have called for the International Criminal Court (ICC) to investigate the mass atrocities and human rights violations committed by the Islamic State. In a New York Times op-ed John Bellinger III, a former official in the George W. Bush administration, insisted that an ICC investigation of ISIS was warranted and that the Court was the best venue for bringing ISIS combatants to justice. On the very same day, the New York Times editorial board declared its support for a United Nations Security Council referral of ISIS to the ICC. More recently, the U.S. Commission on International Religious Freedom has added its voice, recommending that the ICC investigate and prosecute ISIS members in Iraq and Syria.
ISIS is precisely the type of terrorist organization that proponents of international criminal justice had in mind when the ICC became a functioning entity in 2002. For many, putting senior ISIS figures on trial – rather than venturing into additional and legally questionable military forays or expanding an already nefarious drone programme – would be a great victory for international justice.
Indeed, so many groups and figures have thrown their support behind an ICC intervention against ISIS that the Court’s chief prosecutor, Fatou Bensouda, felt compelled to publicly clarify that her office 1) did not have jurisdiction to investigate senior ISIS leaders in Iraq or Syria, and 2) would not do so without a referral from the UN Security Council.
But the reality is that a UN Security Council referral of ISIS to the ICC would be disastrous – for both the interests of international justice and the prospects for peace in the region.
Bad for Justice and Accountability
Few things have hobbled the ICC’s reputation as much as the perception that it is selective. Critics of the Court point to the fact that the ICC has only ever intervened in African states. But even if one believes, as many do, that all of the situations in which the Court has intervened warrant ICC investigation, the Court has also shown a propensity to only target one side of a conflict and not the other.
Consider, for example, the case of northern Uganda. In 2004, the President of Uganda, Yoweri Museveni, met with then-ICC Chief Prosecutor Luis Moreno-Ocampo in London to finalize the terms of Uganda’s self-referral. Despite a twenty-year civil war in which both government and rebel forces had committed mass atrocities, the end product was a declaration that referred only the Government’s adversaries, the Lord’s Resistance Army (LRA), to the ICC. This was eventually amended in order to cover all alleged crimes committed in northern Uganda but, in many respects, the damage had already been done. By meeting publicly with Museveni and initially accepting a referral that exclusively focused on the LRA, the ICC was seen as biased against the rebels and partial towards the Government. This is a reputation that it has never been able to shake in the affected areas of northern Uganda.
The example of northern Uganda has inspired an ongoing debate regarding the legality of restricting the ICC’s jurisdiction to groups like ISIS or the LRA. But irrespective of its legality, accepting a referral of ISIS – or of any group for that matter n would do nothing but undermine the Court’s legitimacy and independence. Such a referral would have to reflect UN Security Council politics to the point of making a mockery of international criminal justice.