This photo shows Amal who is looking at her destroyed home in Sana’a after it was hit by an airstrike in April 2015. A girl looks at her destroyed home in Sana’a, Yemen. © UNICEF/UN018341/Jahaf

The World is Sidestepping the International Criminal Court to “Investigate” War Crimes in Yemen and Iraq?

Yemen and ISIS’s crimes in Iraq are two of the most dire human rights situations in the world right now. There is plenty of evidence of war crimes and crimes against humanity, and under normal circumstances the International Criminal Court would be dispatched to hold belligerents accountable for these international crimes.

But surprisingly these cases are being actively sidestepped the International Criminal Court. Rather, the international community is using other tools at its disposal —  tools that are arguably less effective. Two recent developments highlight this trend.

The first development came on September 21 with Security Council Resolution 2379, establishing an investigative team to work with Iraqi officials in collecting and preserving evidence of crimes committed by ISIS inside the country. The resolution confirms the sovereignty of Iraq and intends for such crimes to be prosecuted in its national courts, albeit with the help of an international team. The resolution was at Iraq’s request, who asked the UN for international help in prosecuting ISIS crimes in August.

A week later, the UN Human Rights Council agreed to establish an independent investigation to monitor alleged human rights abuses in the conflict in Yemen. The Council also approved technical assistance to the already existing national commission of inquiry set up by Yemeni President Abdrabbuh Mansour Hadi in 2015. Falling far short of the formal International Commission of Inquiry called for by numerous human rights groups and the UN High Commissioner for Human Rights, the investigation nonetheless is a step forward in holding all sides of the Yemeni conflict accountable.

Notably, neither one of these developments involve the ICC. In fact, they actively exclude ICC involvement. Resolution 2379 explicitly makes clear that the investigative team is for use in Iraqi national courts, and that crimes committed by ISIS outside of Iraq (such as in Syria) can only be investigated by the team through further Security Council resolutions. In the case of Yemen, the formal International Commission of Inquiry sought by many members of the Human Rights Council would have had the ability to refer cases to the ICC. Instead, the independent investigation actually approved by the Council lacks this ability, and establishes no international jurisdiction for the crimes investigated.

The ICC is just over fifteen years old, but these developments suggest its authority is already waning.

The setup of the ICC is partially to blame. Neither Iraq or Yemen are members of the ICC, nor are most members of the Saudi-led coalition against the Houthi rebels (Jordan and Senegal being the exceptions and relatively small coalition partners). This means the only way the court could gain jurisdiction over these conflicts is through a Security Council resolution. Such resolutions have only occurred twice – with regards to Sudan and Libya – with the latter being requested by the internationally-recognized government at the time.

But what is remarkable here is that with Iraq, the Security Council did pass a resolution, just not one for an ICC referral despite the relevant subject matter. Here the the reason why lies more with politics than with bureaucracy.

Resolution 2379 is notable for the mandate it gives the international investigative team, or more accurately the mandate it didn’t give. There is no question that ISIS committed grave crimes that will certainly rise to the level of war crimes, crimes against humanity and genocide. But Iraqi and coalition forces battling ISIS have their own track record of crimes as well. Yet the investigative team only has a mandate to investigate and document ISIS crimes, and not possible crimes committed by other groups.

In the past, critics lambasted the ICC for such one-sided justice. One example is the case of Northern Uganda, where the court investigated crimes committed by the Lord’s Resistance Army but not those committed by the Ugandan forces battling them. Likewise, in prosecuting the 2011 post-election violence in Cote d’Ivoire, only alleged crimes committed by forces loyal to former president Laurent Gbagbo were investigated while forces loyal to President Alassane Ouattara were let off the hook. These choices hurt the reputation of the court and led to accusations of bias, accusations the ICC is still trying to shake off.

More recently the court has tried to pursue a more balanced scope of investigation, but such balance is not always wanted. For example in its preliminary examination into Afghanistan, the ICC has named crimes committed by US forces, Afghan forces and terrorist groups. Not surprisingly, the US is not very happy with this result. Likewise, the ICC attempted to prosecute all sides of the post-election violence in Kenya, but due to widespread witness tampering, the lack of full cooperation by the Kenyan government, and other difficulties, the cases have all but collapsed.

As Mark Kersten noted last year, state cooperation has a lot to do with who is investigated and prosecuted, and this cooperation is often in the name of political interests. “Put simply, states cooperate in order to implicate their adversaries,” he wrote, “while those actors that the court depends on for such cooperation tend to be shielded from prosecution.” In this context, attempts by the ICC to broaden the scope of its investigations, while a positive step for international justice, is an unwelcome step by many states who rather not end up on the court’s docket.

Seeking alternatives to the ICC, such as with the establishment of the Iraqi investigative team and the independent investigation for Yemen, preserves this kind of selective justice. Although the Human Rights Council’s resolution did not limit the scope of the investigation in Yemen, by not establishing any international jurisdiction for alleged crimes it keeps the legal situation in limbo. This was the imperfect compromise reached with Saudi Arabia, which is being heavily implicated in civilian deaths in Yemen and wanted no investigation at all. But in the end Saudi Arabia was willing to settle for a toothless investigation that would likely lead nowhere on the legal front.

For those concerned with international justice, these developments are a bit troubling. What may seem like progress on its face is also a dangerous step towards impunity. It signals that no matter what the international community may say, some forces can be above justice if they just play their cards right.

In advancing justice, this simply doesn’t work. The ICC learned that the hard way and is still striving to correct its early mistakes. By actively sidestepping the court to pursue selective justice, the UN Security Council and the Human Rights Council are repeating those mistakes and ingraining them into the international system. Holding ISIS accountable and investigating widespread crimes in Yemen are admirable aims, but they shouldn’t be the only aims of the international community. If left at just this, the goal of international justice will likely suffer more harm than benefit, even while those involved cheer on the process.