Their ways are a shock to the collective conscience of humanity. Their brutality is almost universally condemned. The evidence of their crimes is vast, not least because they themselves upload first-hand footage of their massacres and mass atrocities. In many respects, the Islamic State (ISIS, or sometimes ISIL) is a perfect target for the International Criminal Court (ICC), a slam-dunk case that really shouldn’t inspire any political, moral, or legal ambiguity.
But is an ICC intervention an appropriate response to ISIS? For some influential observers, the answer is adamantly yes. John Bellinger III, a former official in the administration of George W. Bush, recently insisted that an ICC investigation was warranted and that the Court was the best venue for bringing ISIS combatants to justice. The New York Times editorial board also threw its support behind a United Nations Security Council referral of ISIS to the ICC, arguing that it could help the council make amends for previous failures to protect civilians in Syria and Iraq. Interest in the ICC’s potential role in castigating and prosecuting ISIS has been so palpable that the Court’s chief prosecutor, Fatou Bensouda, felt the need to announce that she did not have sufficient jurisdiction to investigate senior ISIS leaders and could not do so without a UN Security Council referral.
Without question, the international community can and should do something in response to the massive human rights violations and human devastation being wrought by ISIS. Still, despite the widespread – and growing – support for holding ISIS combatants to account, there is an ongoing need for some sober reflection regarding the wisdom of referring ISIS to the ICC. Here are three reasons why an ICC referral may not, in fact, be the right approach to dealing with the Islamic State.
If the UN Security Council were to refer ISIS to the ICC, it would mark the first time that a group – rather than a territorial ‘situation’ or conflict – was successfully referred to the Court. But it wouldn’t be the first time that a political actor attempted to do so. In 2004, the government of Uganda sought to refer “the situation concerning the Lord’s Resistance Army” to the ICC. This was perceived as an attempt to instruct the Court to target only the government’s rebel adversaries. Ultimately, and at the behest of then-Chief Prosecutor Luis Moreno Ocampo, Uganda’s referral was re-interpreted so as to provide prosecutors with jurisdiction over the territory of northern Uganda – and not just the LRA.
William Schabas recently pointed out that there is nothing precluding the UN Security Council from referring a group to the ICC. But doing so would risk entrenching the Court’s selectivity. In a region that has experienced devastating violence for four years, most disturbingly the repeated use of chemical weapons against civilians (including children), the ICC would be forced to focus on only those crimes committed by ISIS. Would that amount to justice? Perhaps for some. But it would also be an explicit denial of justice for those victims and survivors in Iraq and Syria whose perpetrators and tormentors murder and plunder under another banner.
Any UN Security Council referral of ISIS would highly restrict who the Court could and could not investigate and prosecute. Taken together, Council members currently have a laundry list of actors they would want to protect. The US, UK and France are unlikely to support any referral that would potentially put Syrian rebel groups or the Iraqi forces under the ICC’s microscope. Russia and, to a lesser degree, China, would seek to ensure that the regime of Syrian President Bashar al-Assad was shielded from the Court. All would want to make sure that the ICC’s investigation of ISIS as a group did not leak into an investigation of crimes being committed on the territory of Syria or Iraq. Throw into the mix the Council’s fears that Israel’s occupation of the Golan Heights region of Syria could lead the ICC to investigate Israeli actions, and the picture becomes clear: a UN Security Council referral would have to have so many political caveats as to make a mockery of the very notion of impartial international criminal justice.
So why would the international community, and specifically the UN Security Council, be interested in a referral of ISIS to the ICC? For some, it is out of a conviction that such a referral is the right thing to do. However, there is the simultaneous danger that some states would be interested in a referral of ISIS to the Court not because of its intrinsic value in achieving justice or as an ingredient of conflict resolution but because of a desire to be seen to be doing something after years of failures. As Eric Neumayer has argued:
States reluctant to intervene militarily and to contribute to multinational peacekeeping may use the existence of the ICC as an excuse for their inaction. It may allow states to reassure their domestic publics that something is being done and that crimes can no longer be committed with impunity, without states incurring the substantial costs of preventing those crimes in the first place.
The ICC is a panacea neither to mass atrocities nor conflict. If the Security Council agrees on the need for an ICC intervention, it must be part of a broader effort – and not a fanciful veneer for inaction.
Justice – but how?
It bears repeating: there is no doubt that the atrocities committed by ISIS warrant justice. But the politics of the region and the international community’s half-decade-long dithering stances on Syria have made the pursuit of accountability for ISIS’ crimes increasingly difficult. The UN Security Council would be wise to unravel its convoluted strategies of intervention and non-intervention in the region before outsourcing any responsibility for responding to mass atrocities to the ICC.
This article was originally published at Justice Hub here.