That Time the Bush Administration (Probably) Kiboshed Iraq’s ICC Membership

An ISIS fighters waves a flag in Iraq (Photo: Reuters)

An ISIS fighters waves a flag in Iraq (Photo: Reuters)

In recent weeks, the internet has featured hundreds of articles exclaiming the need to investigate atrocities perpetrated in Iraq. Many continue to insist that UK officials who are responsible for alleged war crimes during the British and American occupation of Iraq must be held to account – either in the UK or at the International Criminal Court (ICC). Others seek to advocate that a tribunal, be it the ICC or some other judicial mechanism,  investigate the carnage perpetrated by the Islamic State in Iraq, as well as Syria. But there’s the rub: the ICC itself can’t investigate crimes on the territory of Iraq because it doesn’t have jurisdiction over Iraq because Iraq isn’t a member-state of the Court. The ICC can potentially prosecute British officials because the UK is a member-state, although it has been famously recalcitrant to do so, deciding in 2006 not to open an investigation into alleged UK abuses because, in the view of then chief Prosecutor Luis Moreno-Ocampo, those alleged crimes weren’t “grave” enough.

But none of this mean that Iraq never came close to joining the Court. Here’s the story of the time that Iraq explored the idea of joining the ICC, courtesy of David Bosco’s must-read book Rough Justice:

For a brief moment, it appears the ICC might get much broader jurisdiction in Iraq. In 2005, an Iraqi minister announced his intention to sign the Rome Statute. The statement created diplomatic shockwaves. Iraq’s deputy ambassador to the United Nations at the time, Feisal Istrabadi, recalled getting two quick phone calls when the news broke. The first was from Jordan’s Prince Zied, a prominent court supporter serving as president of the ICC Assembly of State Parties. He asked excitedly whether the reports were true. Istrabadi confessed that he did not know. Half an hour later, US ambassador Anne Patterson called and asked the same question, with a tone of “grave concern.” That alarm by the United States had an immediate effect; other senior Iraqi officials quickly clarified that the human rights minister had no authority to sign the Rome Statute. When Istrabadi brought up the issue with Iraq’s foreign minister, he was told that the Americas “would have a fit” if Iraq joined the court. It appears that US pressure helped steer the Iraqi authorities away from a move that might have produced an ICC investigation. No other major powers — even those who had vigorously opposed the Iraq war — pushed publicly or privately for an ICC role in Iraq.

We may never know how close Iraq actually was to signing the Rome Statute, let alone ratifying it and thus becoming a fully-fledged member of the ICC. Yet it may not be as absurd as some might assume. After all, Afghanistan signed and ratified the Rome Statute, becoming a member-state of the Court in 2003. At the same time, it seems improbable that any minister would assume the risk of declaring that their country was about to sign the Statute without any preceding and very serious discussion or preparation.

Regardless, it is hard not to imagine – and despair over – what could have been: possible investigations into the atrocities that have been and which continue to be perpetrated in Iraq. Undoubtedly, the politics of a judicial intervention into a country where major power interests are significant would affect any ICC investigations in Iraq. But at least such an intervention would have been consistently possible perhaps, if you believe in deterrence, even affecting the behaviour of at least some groups on the ground.

Bosco’s account is also indicative of the vehemently anti-ICC policies of the George W. Bush administration. It is all too easy to imagine the U.S. government in 2005 flexing its diplomatic muscle to ensure that any momentum in Baghdad to sign the Rome Statute stalled. As such, the story is a reminder of how far Washington has come with regards to its relationship with the ICC. It is leaps and bounds better. But it also illustrates the limitations of the Obama administration’s interest in the ICC. Sure, diplomats like American Ambassador to the United Nations Samantha Power are now willing (at least occasionally) to support an ICC intervention in Syria. But there is no evidence that the Bush administration’s line of reasoning with regards to Iraq ever joining the ICC has changed.

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About Mark Kersten

Mark is a researcher, consultant and teacher based at the Munk School of Global Affairs in Toronto, Canada. His research focuses on the nexus of international criminal justice and conflict resolution. Specifically, Mark's work examines the politics of the International Criminal Court and the effects of its interventions on peace, justice and conflict processes.
This entry was posted in International Criminal Court (ICC), International Criminal Justice, Iraq, ISIS, Islamic State, United Kingdom, United Nations, United States. Bookmark the permalink.

5 Responses to That Time the Bush Administration (Probably) Kiboshed Iraq’s ICC Membership

  1. Chris Alders says:

    Very insightful and disturbing.

  2. el roam says:

    Thanks for the post Mark . Just worth to remind the UN referral doctrine , for addressing and prosecuting , any situation and case whatsoever worldwide . It is of course , that in the case of Iraq , one may wonder about the veto power . Just worth to note , that more and more officials and states , globally , urging the need for reforming the SC veto power exercise , so , as such , the SC would have more discretion and power for forcing and stabilizing conflicts , especially such where super powers are involved . ( see link ) .

    Beyond it , not to forget , not only UK officials , but also ISlS soldiers having European nationalities ( see links ) .

    Links :

    Prime minister of new Zealand , criticizing the Veto in the SC :

    http://www.un.org/apps/news/story.asp?NewsID=52111#.V-mwgsY5G2s

    And legal analysis of ISLS combatants and jurisdiction of the ICC, one may find there, the statement of Fatou Bensouda in this regard (reference number 10):

    https://www.asil.org/insights/volume/19/issue/21/prosecuting-isil-international-criminal-court-challenges-and-obstacles

    Thanks

  3. Terry Washington says:

    Presumably the Bush Administration’s hostility to and fear of the ICC overrode even its opposition to Al Qaeda!

  4. el roam says:

    Mark , a comment posted yesterday , not appearing yet , so , here as a whole again :

    ” Thanks for the post Mark . Just worth to remind the UN referral doctrine , for addressing and prosecuting , any situation and case whatsoever worldwide . It is of course , that in the case of Iraq , one may wonder about the veto power . Just worth to note , that more and more officials and states , globally , urging the need for reforming the SC veto power exercise , so , as such , the SC would have more discretion and power for forcing and stabilizing conflicts , especially such where super powers are involved . ( see link ) .

    Beyond it , not to forget , not only UK officials , but also ISlS soldiers having European nationalities ( see links ) .

    Links :

    Prime minister of new Zealand , criticizing the Veto in the SC :

    http://www.un.org/apps/news/story.asp?NewsID=52111#.V-mwgsY5G2s

    And legal analysis of ISLS combatants and jurisdiction of the ICC, one may find there, the statement of Fatou Bensouda in this regard (reference number 10):

    https://www.asil.org/insights/volume/19/issue/21/prosecuting-isil-international-criminal-court-challenges-and-obstacles

    Thanks

  5. Ratification of the Rome Statute is the demonstration and commitment to addressing mass atrocity and gross violations of human rights. There is of course a political motivation behind this – States do not wish to be seen not to make such a commitment, in a context where a great number of other States are signing on. Nevertheless, international law and justice has a track record better than other forms of politics of giving the powerless some hope when confronted by the interests of the powerful.

    Universal ratification and implementation of the the Agreement on Privileges and Immunities of the ICC (APIC) is necessary for the effective functioning of the Court and the international justice system as a whole, as it provides the ICC with the access and cooperation it requires to execute its mandate to provide justice for victims of genocide, crimes against humanity, and war crimes.

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