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.
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.