Make ISIS' Leaders Face Justice

http://www.nytimes.com/2015/04/03/opinion/make-isis-leaders-face-justice.html

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WASHINGTON — Last month, the United Nations human rights office in Geneva issued a report that concluded that the Islamic State had committed war crimes, crimes against humanity and possibly acts of genocide. The report urged the Security Council to refer these acts to the International Criminal Court for investigation.

The proposal might seem abstract, impractical, even pointless; there are no defendants, as of yet, to put on trial. So would an investigation by the International Criminal Court, which is based in The Hague, be a feckless exercise in legal supra-nationalism?

No. The horrendous crimes committed by members of the Islamic State, also known as ISIS and ISIL, fall squarely within the court’s jurisdiction. It certainly makes more sense for the court’s prosecutor to investigate the Islamic State than to investigate the United States or Britain for treatment of detainees or Israel for its handling of last year’s Gaza conflict, as some activists have called for.

More important, as the military campaign against the Islamic State continues, members responsible for atrocities may be captured rather than killed. It makes more sense to prosecute them (or at least their leaders) in the I.C.C. for international crimes than in the national courts of the United States or any other country.

The report by the office of the United Nations high commissioner for human rights, the respected Jordanian diplomat Zeid Ra’ad al-Hussein, documented numerous acts of murder, torture, rape and recruitment of child soldiers by the Islamic State, as well as an apparent pattern of genocide directed against the Yazidi community. The report recorded allegations of crucifixions, sexual slavery and use of chemical weapons. In one case, the report alleges that 13 teenage boys were sentenced to death for watching a football match.

The fastest and most effective way to hold Islamic State leaders responsible for their crimes and prevent them from committing additional atrocities is undoubtedly to continue to target them with bombs and drones. As the conflict continues, however, it is possible that one or more Islamic State leaders may be apprehended in a military operation. The question would then be whether these individuals should be prosecuted in national or international courts.

Some of the atrocities committed by the Islamic State — such as the beheadings of several American citizens — clearly constitute violations of United States criminal law, and the perpetrators can be prosecuted in federal court (and even sentenced to death). Offenses against nationals of other countries could also be prosecuted in the United States under the War Crimes Act of 1996, or other federal statutes. Britain and Japan are presumably conducting investigations of the beheadings of their citizens.

But the United States and other governments should not limit themselves to potential prosecutions of Islamic State members under domestic criminal laws. The group is engaging in widespread and systematic attacks against civilians in Iraq and Syria that constitute grave international crimes (including genocide).

Its atrocities are similar to, if not worse than, the offenses committed by various armed groups in several countries in Africa that are currently the subject of I.C.C. investigations. In contrast, the sporadic terrorist attacks committed by Al Qaeda and its affiliates may not qualify as offenses within the court’s jurisdiction. (The terrorist attacks of Sept. 11, 2001, occurred before the court began operations.) At a minimum, the Security Council should ask the court to investigate the numerous offenses committed by the Islamic State that fall within the court’s mandate.

Such a request would not only register international opposition to the atrocities; it would also help lay the groundwork for future prosecutions.

A Security Council request would be necessary because Iraq and Syria, where the Islamic State is operating, are not parties to the Rome Statute (the treaty that created the court) and are not otherwise subject to the court’s jurisdiction.

Ten years ago, the George W. Bush administration agreed to a Security Council resolution that referred to the I.C.C. the acts of genocide in Darfur committed by President Omar al-Bashir of Sudan. The Sudan referral marked the beginning of an American policy of pragmatic engagement with the I.C.C. in the Bush administration’s second term (following a more skeptical approach in its first term) that has continued under the Obama administration. Four years ago, the Obama administration supported a similar Security Council resolution that referred the human rights abuses committed by the Libyan leader Muammar el-Qaddafi to the court.

In both cases, the United States supported the referrals even though Sudan and Libya are not members of the court. The United States is also not a member, in part because of concerns about potentially politicized investigations of the United States, which Presidents Clinton, Bush and Obama have all expressed.

Last May, the Obama administration supported a Security Council resolution that would have referred atrocities committed by President Bashar al-Assad’s regime in Syria to the court, but that resolution was vetoed by Russia and China. Both of those countries will still be concerned about subjecting Mr. Assad to the court’s jurisdiction, but they may be more willing to support an investigation by the court of Islamic State offenses, at least in Iraq.

The United States has reason to be concerned about inappropriate and politicized investigations of the United States and Israel, but the International Criminal Court still has an important role to play in investigating and prosecuting acts of genocide, war crimes and crimes against humanity — all of which have reportedly been committed by the Islamic State.

Even if the United States continues its use of military force against the Islamic State and considers possible federal prosecutions of its members responsible for murdering Americans, the administration should still support a Security Council referral of all Islamic State offenses to the court. Whatever one’s view of the International Criminal Court, these offenses clearly fall within its jurisdiction.