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Justice Denied

From the Daily Mirror:

None of the 400 citizens returning here after fighting for Islamic State in Syria and Iraq have been charged with war crimes.

Yet the Council of Europe’s legal affairs committee recently ruled membership of the terror group, also known as Daesh, is enough for prosecution at the Hague’s International Criminal Court.

Labour Shadow Minister Liam Byrne, representing Britain, backed the decision.

He said: “We know British citizens were soldiers and commanders in Daesh’s army of evil. Yet not a single soldier captured on their return has been charged with war crimes or genocide.”

MI5 estimates that 850 Brits have slipped into Iraq and Syria to fight for IS – half of whom have returned.

They were outside the jurisdiction of the ICC while there but could have been deported to the Hague upon their return.

Mr Byrne added: “This cannot possibly be justice. The Government must look again at throwing the full weight of international law at those who took part in crimes against humanity.”

Byrne also had an op ed in The Times of London:

Britain has signed the Treaty of Rome. We support the International Criminal Court. Indeed, under the 1948 Genocide Convention, we have an obligation to take prompt and effective action both to prevent and punish acts of genocide. And we can try our own nationals for participating in crimes abroad, not least because there are good grounds for bringing charges against even those, who might claim “they were merely following orders”. UK policy is very clear; we allow the exercise of universal jurisdiction, like the ICC, over offences under international law.

That means we can prosecute those of our citizens caught in this country, who fought with militants abroad but then came home to escape a death on the battlefield.

MI5 believe that over 800 of our fellow country men women went to fight in Iraq and Syria. Over 400 have come home. Perhaps 150 have been deprived of their citizenship. But evidence supplied to a Council of Europe investigation suggests that just “eight returnees have been convicted for terrorist offences”. And answers to me in parliament last week confirm that not a single returning fighter has been prosecuted either for genocide or war-crimes.

Justice denied… is collaboration in both past and future crimes.

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ISIS: Rogue State or Organized Crime Gang/Mafia

The West has been at ‘war’ with the Mafia and other organized crime gangs for over a century now. And nobody really thinks there will be some final ‘victory’. On the other hand the Mafia is at one of its lowest ebbs in both the United States and Italy. And who among us really remembers the days when Baader-Meinhoff terrorized Germany or the Red Brigades Italy. Or the Manson Family southern California – ooops, that is everybody because they made books and movies about it and the primary victim was a pregnant movie star. But all of which makes the point – horrible people have been doing horrible things to more or less innocent peoples since forever. And there is nothing that ISIS did in Paris that exceeds what the Manson Family did in 1969 or Al Capone’s guys in the Valentine’s Day Massacre of 1929. It was all brutal and evil and fully justified the full application of the force of the State to suppress it, up to and including deadly force as necessary. But only as necessary. Al Capone died in prison and Chuck Manson will too, there was no need to carpet bomb Chicago or the California desert.

ISIS are not world history’s worst monsters. On the other hand they are pretty damn monstrous. On balance are they worse than the worst branches of the Mafia over its several century history? I don’t know, on the other hand I am not going to pre-judge the State’s attempt to ruthlessly crush them. Now lots of mockery has been expended on the notion that ‘terrorism’ can be addressed as a criminal justice matter rather than some matter of existential war of civilizations. But calling these matters ‘crimes’ rather than ‘war’ is important. In WWII we declared war on Japan and Germany declared war on the U.S. and this war was considered on both sides a war of country vs. country and people vs. people with the result of really terrible acts perpetrated by both sides against an amorphous enemy. In the context of total war firebombing Tokyo and Dresden were considered simple acts of war. And if anyone objected the answers were easy: “Coventry”, “Pearl Harbour”, “The Bataan Death March”.

But we don’t need to adopt the model of ‘Total War’. ISIS is not Imperial Japan or Nazi Germany. On the other hand it is a little harder target than the Detroit Purple Gang of the 20s and 30s or the Gambino Family of the 70s and 80s. All of which means that we need to calibrate our violence to the actual threat. We can take the War to ISIS without taking it to the entire Islamic World. Just as taking the War to the Mafia didn’t require carpet bombing every Sons of Columbus Hall and blowing up the Vatican. In both cases you need to keep focus on the Bad Guys. And regard collateral damage as a tragedy and not as we too often did in World War Two as a payback.

Maybe the Italians will never extirpate every trace of the Mafia from Sicily. In fact I will bet big money that not. And I predict that 100 years from now, and despite all the efforts of Batman, er I mean the NYPD Gang Squad, there will still be organized crime in Gotham/The Big Apple. Even though there will be episodes of Good Guys shooting down Bad Guys. And Bad Guys killing Innocent Civilians. And so too for ISIS. We can never defeat the underlying forces that lead to criminality. Which doesn’t mean we can’t cheer the day that Seal Team Six put bullets in Osama bin Ladin’s head or the day, hopefully soon, when a Hellfire Missile takes out the top leadership of ISIS/ISIL/Da’esh. But Christ Almighty can we keep the fire bombings and nuclear attacks in our back pocket? Taking out criminal leaders of criminal regimes while understanding that not every person under the power of that regime is a legitimate target is not some wimpy response, some lightweight attempt to ignore the fact that “we are at war” and not busting people for jay-walking. But there is a middle way that has us targeting the actual bad guys as criminal thugs who may require lethal justice. Without carpet bombing Palermo or the Bronx.

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Declaring War on ISIS without Making War In Iraq or Syria

Put that way it sounds silly. I mean isn’t ISIS simply IN various parts of Iraq and Syria and wouldn’t US involvement in something like an all out attack on ISIS mean intervening in any number of civil wars? Well that depends on how smart your lawyers are (and I am only kind of smart and not a lawyer at all). But let me float a trial balloon (one fully equiped with Hellfire Missiles and Special Forces assault teams).

One. There is such a thing as the self-proclaimed Islamic State. And this sovereign state does have existing if fluid borders, that is there are parts of the territory of pre-existing states like Iraq and Syria that are now not under the physical and military and administrative control of those states. To that degree there is in fact an independent territorial based Islamic State. Moreover this IS has in very explicit fashion declared war on the United States, most recently be executing a U.S. citizen and threatening the same against his compatriot.

Which leads to this perhaps counterintuitive suggestion. Declare war on ISIS while simply allowing any territory gained in that military effort to simply be reabsorbed by the former state actors who held it. That is simply regarding any territory held by ISIS to not actually be in Iraq or Syria while allowing any and all claims to territory liberated from ISIS to revert to the states which formerly and still formally claim it. And this latter move could be itself justified by simply refusing to commit ‘boots on the ground’ to actually taking that territory as opposed to the deployment of targeted ground assaults within the territory currently controlled by the Islamic State. That is the U.S. would commit to the destruction and dismemberment of the IS while not formally taking control of any part of it. And by that token never actually waging war in ‘Iraq’ OR ‘Syria’.

Maybe this is too clever by half to be workable. But what it would conceptually do is convert ISIS into the Cheshire Cat state, simply vanishing as every piece of it is dismantled around it. Leaving nothing but the dream of a Caliphate (and being realistic an ongoing terroristic threat to both the restored Iraqi and Syrian States and the West at large).

The main conceptual difference between this effort and the Second Iraq War is that the U.S. by and large wouldn’t own the Pottery Barn where the breakage occured. Because by donning the proper set of logical blinders we could make the case that we weren’t ‘really’ engaged in war on current Iraqi or Syrian soil. And if those state actors had a beef with us waging war on what they consider to be their sovereign territory the U.S. answer would be simple: “Okay take back that territory an inch and a mile at a time and raise your own flag over the liberated cities and villages”. Because if that village or region or province is no longer under IS control it would not be at war with the U.S. And as such there would perhaps not ever be such a thing as the “U.S. Occupation of the Islamic State”.

I am not saying there would not be complications. After all the dissolution of the Ottoman Empire after WWI delivered us right into WWII via the new Balkan States and even more so into the current I-P mess verging on horror, the ‘War to End All Wars’ is maybe the most ironic slogan ever invented. Still it is clear that the U.S. needs to put paid to ISIS while having some plausible deniability of actually occupying parts of war torn Iraq and Syria. And simply defining the Islamic State as being such and so a proper and plausible target of a Constitutional Declaration of War seems a reasonable way of slicing the logical knot here.

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