Mr. Baghdadi, You’re Under Arrest

Could the International Criminal Court really play a role in ending the conflict in Syria?

Iraqi security forces and Shiite fighters from the Popular Mobilisation units gather next to a mural depicting the emblem of the Islamic State (IS) group outside one of the presidential palaces in Tikrit, on April 1, 2015, a day after the prime minister declared victory in the weeks-long battle to retake the city from the IS group. Iraqi forces battled the last jihadists the northern city on April 1, 2015 to seal a victory the government described as a milestone in efforts to rid the country of the Islamic State group. AFP PHOTO / AHMAD AL-RUBAYE        (Photo credit should read AHMAD AL-RUBAYE/AFP/Getty Images)
Iraqi security forces and Shiite fighters from the Popular Mobilisation units gather next to a mural depicting the emblem of the Islamic State (IS) group outside one of the presidential palaces in Tikrit, on April 1, 2015, a day after the prime minister declared victory in the weeks-long battle to retake the city from the IS group. Iraqi forces battled the last jihadists the northern city on April 1, 2015 to seal a victory the government described as a milestone in efforts to rid the country of the Islamic State group. AFP PHOTO / AHMAD AL-RUBAYE (Photo credit should read AHMAD AL-RUBAYE/AFP/Getty Images)

Speaking by phone from a beach in Tulum, Mexico, Luis Moreno-Ocampo does not seem the least bit put out by my disrupting his brief vacation from a lengthy speaking tour for an interview. “For me, this is not just work,” he explains. An Argentine lawyer who served nine years as the first prosecutor for the International Criminal Court (ICC), Moreno-Ocampo stepped down in 2012 and today teaches international law and practices independently. “It is the most important thing in the world.”

It’s an unexpected description of an effort that from many elicits eye rolls or simple dismissal: convincing the ICC — a legal body whose jurisdiction more than 70 countries, including the United States, have yet to recognize — to pursue a charge of genocide against the Islamic State for their campaign to exterminate the Yazidis.

The Islamic State’s brutal treatment of the Yazidis, a small religious and ethnic minority which lives in the mountains of northern Iraq, provoked America’s first overt intervention into the Iraq/Syria conflict in the summer of 2014. Nevertheless, their cause is somewhat tangential to the larger struggle embroiling the region, and their persecutors are hardly ones to submit to international law. (As my esteemed FP editor, who shall remain unnamed, put it when I first broached this piece: “I highly doubt the Islamic State fears the wrath of the ICC.”)

Of course, they most certainly don’t; a blood-thirsty death cult known for beheading journalists and enlisting young girls as sex slaves is unlikely to lose much sleep over the reach of an organization that has no jurisdiction in either of the states in which they operate (neither Syria nor Iraq is a signatory to the ICC) and has no enforcement power even in states which are members. But Moreno-Ocampo sees something more in his quest to bring an ICC case against the Islamic State. “This is not about how [the Islamic State] will see the ICC,” he explains. “It’s about the ICC as the beginning of a new solution.”

The solution Moreno-Ocampo is touting has circulated on the fringes of the counterterrorism discussion since long before the Islamic State emerged: counterterrorism as law enforcement. Moreno-Ocampo describes a state of affairs with the militant group in which, despite its nominal status as a “state” (in the sense that it holds territory and provides services), the true danger lies in its ability to move across borders and recruit adherents like the perpetrators of the recent attacks in Paris — namely foreign-born, Western passport-holders who could just as easily have never set foot in the Middle East.

“We need to focus on the ICC and on the genocide against the Yazidis because this will help us create common ground and show that [Islamic State fighters] are criminals,” he says. “They are not ‘enemies’; they are criminals. How do you deal with criminals in Paris? Carefully, you don’t bomb them. The decision to treat terrorism as a war was made on 9/11, and we are still stuck with this. It is not working — we need to treat it differently. The law needs to delineate the difference between a terrorist and a soldier.”

Despite the temptation to write off Moreno-Ocampo’s approach as utopian — to which he responds, “The notion that bombs will eliminate the Islamic State is pure utopia,” — the approach itself has some notable merits. In fact, it is in many ways highly compatible with the rhetoric, if not always the actions, of many U.S. and global leaders.

The skepticism that military efforts will ultimately defeat any terrorist group is one that has long been given voice to by both generals and politicians, from Stanley McChrystal to Mike Mullen to Mitt Romney. And in the case of the Islamic State, in which a steady flow of fighters from around the world are arriving to replace those being killed by airstrikes, special forces raids, and local military forces, the maxim is all the more apt. But the urgency of the humanitarian crisis on the ground and the apparent lack of viable political solutions have left the international community with few other options or at least few easy ones. In other words, Whac-A-Mole isn’t working, but no one has come up with much else so far.

Moreno-Ocampo, however, believes there are other methods and admits that they will require a fundamental rethinking of the threat these groups represent and of the collective action required to disempower and ultimately destroy them. “It’s not that we don’t have solutions,” he says. “We just can’t think the right way for this. We’re not allowing ourselves to think the right way.”

The right way, Moreno-Ocampo believes, is to apply the level of sophistication and information sharing that has long been applied to multilateral military operations to a classic law enforcement and political negotiation strategy. He explains, “The approach with law enforcement is to follow the money: Who is buying the oil? Where are they getting the weapons? Intelligence people don’t cooperate. They don’t follow the money. No one is talking about financial investigations of [the Islamic State]. It is not about an ICC verdict. We need an international law enforcement effort to disrupt the organization. Killing is not enough.”

It is fairly easy to imagine how this might look in the context of Europe or even the countries surrounding the Islamic State problem set, one example of which is Turkey. Information sharing between law enforcement agencies even within Western Europe remains an elusive goal and one that Moreno-Ocampo clearly has in his sights. How his vision pans out in places like Mosul and Raqqa, however, is somewhat less clear; it may, for the time being, continue to look like military intervention, though perhaps within a framework more closely tied to international law and collective action than the specific objectives of any one state that has chosen to intervene on the ground or in the air.

This is where Moreno-Ocampo’s strategy becomes even more grandiose but again raises worthy points. Without pairing military action with a baseline rule of law under which groups like the Islamic State can be held accountable for their crimes, if only nominally for the moment, the potential for retribution and the continuation of a vicious cycle of violence becomes very high. “You can’t just push one tribe against another tribe — that just exacerbates the conflict. Now [former CIA chief David] Petraeus is talking about arming al Qaeda against [the Islamic State] — this is just crazy! We need to get everyone on the same page and find a solution through the law,” says Moreno-Ocampo. “Otherwise, how do we prevent the returning Yazidis from killing their Sunni neighbors? They need to have another course besides violence.”

This all sounds fantastic — literally. It’s hard to even imagine all the interested parties getting together, applying their collective knowledge to the Islamic State problem, setting about dismantling this horrific organization, and then hammering out a viable political solution. And unfortunately, as I offered somewhat timidly during our discussion, even if the multitude of interested actors were able to let down their guard and share the necessary intelligence to do what Moreno-Ocampo is suggesting, the primary players in the conflict have very different — and often conflicting — ideas about how the political solutions in both Syria and Iraq might look.

Russia and Iran are the obvious culprits here. In Syria, each seems intent on keeping the murderous Bashar al-Assad in power for its own reasons: Russia, to protect its naval base and its long-term strategic gambles in the region; and Iran, to maintain its influence over a key ally and conduit to Lebanon for weapons and fighters. To this end, Russia appears to be conducting most of its “anti-terrorist” strikes against the moderate rebels fighting Assad (including those trained by the CIA). Meanwhile, Iran is providing direct support to Assad’s military while feeding Hezbollah fighters into the mix. At this point Assad has the blood of more than 200,000 civilians on his hands, making his continued rule something the United States and its allies simply cannot abide.

Similarly, in Iraq, Iran has a stake in the continued marginalization of Sunni Iraqis from the government in Baghdad, which is the exact condition allowing the Islamic State to recruit, or at least be tolerated by, Iraqi Sunnis — who will not fight an enemy they perceive to be less dangerous than their own government and the Shiite militias with whom they work. Thus, negotiating a mutually agreeable political solution there — and one that will actually help to quell the Islamic State — also looks elusive at best. Rather than try to force a political solution on an unwieldy Iraqi political scene, Ocampo’s approach would take a slightly different tack: By positioning the government of Iraq in opposition to the Islamic State as a violator of international law under the ICC, it would posit Baghdad’s fight against extremist Sunnis as the implementation of an international legal ruling, rather than sectarian retribution.

The fundamental misalignments of objectives between Iran, Russia, and the United States has led many in the United States to advocate against working with Iran and Russia. As Mike Vickers (full disclosure: my former boss) wrote in Politico, “we must not succumb to the false hope that ending the Syrian civil war is the key to defeating ISIL, and that we should join forces with Russia (and Bashar Assad) to do it. The only winners in that case will be Assad, Russian President Vladimir Putin and Iran Supreme Leader Ali Khamenei. The war will not end, and we will further alienate our Sunni allies and risk greater instability in the Middle East.”

So where does that leave Moreno-Ocampo’s effort to unify the Islamic State’s enemies around a common starting ground (the genocide against the Yazidis) in a long-term campaign to stabilize the region and eliminate the Islamic State through financial warfare and police work? “I’m not naive about Russia,” he says, “but we have to come to agreements. Focus on [the Islamic State] and genocide on Yazidis at the beginning, and afterwards there should be some form of domestic justice for the other crimes. It’s time to be pragmatic and align everyone on basic points. Stop [the Islamic State] first and then create real negotiations and do justice to everyone. Then Putin will not be able to ignore these injustices.” In this way, Moreno-Ocampo views the ICC less as a weapon than as a tool for compromise and agreement among major powers on the essentials of the anti-Islamic State campaign, if not the desired end-states.

It is, in fact, not far from what presidential candidate and former Secretary of State Hillary Clinton offered in mid-November when asked — by me, incidentally — whether she would allow U.S.-armed Syrian rebels to target Assad, thus pitting Washington against Moscow and Tehran: “We have to prioritize … right now, we’ve got the Russians protecting Assad, the Iranians and Hezbollah protecting Assad. We need to get people to turn against the common enemy of [the Islamic State], and then we need to figure out how we put together a political outcome.” Or, as Moreno-Ocampo says much more directly, this isn’t the time for a proxy war with Russia or Iran but instead a time to band together against the Islamic State.

Even temporarily setting aside the divergence of interests with Russia and Iran, as the likely future president of the United States seems willing to do (for better or worse), Moreno-Ocampo is left with the plain reality that the international community, and the relevant parties to this conflict in particular (the United States, Russia, and Iran), not only does not recognize the authority of the ICC, but to various extents does not fully endorse a system of international law, making it difficult for this type of case to serve as a starting point for a unified campaign against the Islamic State. But he continues to tour the world arguing for the need to take these steps.

“The ICC is not Plan A,” he admits. “But there is no Plan A — and experts are refusing to consider new ideas. For the last 15 years, we have been reacting instinctively according to a strategy designed for a different problem — for warfare between sovereign states. The idea of bombing is to defeat states — it is not designed for terrorism. What we are doing is not working because the Westphalian system has not yet evolved to deal with 21st-century challenges.”

Photo credit: AHMAD AL-RUBAYE/AFP/Getty Images

Whitney Kassel is a foreign policy analyst based in New York City. Kassel spent four years with the secretary of defense, where she focused on special operations, counterterrorism, and Pakistan. She also served as a senior director focused on strategic analysis and risk management at The Arkin Group, a private intelligence firm. Twitter: @whitneykassel

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