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Clooney's looney vow to prosecute Daesh misses the point

In the latest mad attempt to fight Daesh, Amal Clooney, celebrity-cum-lawyer, has announced that she will be prosecuting Daesh in international criminal courts. Clooney will be representing Nadia Murad, a newly anointed UN Goodwill Ambassador and former Daesh sex slave, and will bring charges of war crimes and genocide against the terrorist organisation on behalf of thousands of Iraqi Yazidis. Arguably, however, Clooney is missing the point entirely.

Although few could disagree with her that simply bombing Daesh will not solve the core problem of its poisonous ideology, she has not made a compelling argument how courts will help to delegitimise extremism. After all, it is not as though Abu Bakr Al-Baghdadi, Daesh's self-proclaimed caliph, is going to be paying "infidel" judges much heed, and nor would potential recruits who already view the West as their primary foe. A legal judgment or opinion rendered by a Western judge will receive little more than a wrinkling of the nose and an impertinent wave of the hand from extremists who would view the judgment as politicised against their illusory state.

In order to fully appreciate how off-target Clooney's lauded court action is, one must first also understand how grievous breaches of international law are commonly dealt with, particularly when issues of war crimes, crimes against humanity and genocide are involved.

Without delving into legal definitions of the various crimes (which raise issues by themselves), courts like the International Criminal Court (ICC) have very little jurisdiction. Ordinarily, though not always, parties accused of war crimes or genocide must be a party to conventions, and also accept the jurisdiction of the ICC. The ICC can prosecute individuals and non-state actors, but the nations to whom these perpetrators belong to should ordinarily also accept the ICC's jurisdiction.

Another way to prosecute a suspect for war crimes is for a case to be referred to the ICC by the UN Security Council (UNSC). The UNSC, apparently being the ultimate arbiters and deciders on what is or is not international law, have a great deal of power in general, not only in matters of international law. The notoriously fickle cabal at the top of the world's food chain can refer cases to the ICC, but any permanent member may veto such moves. That probably goes a long way in explaining why the ICC has only ever issued a handful of verdicts.

Daesh operates over a wide geographic area, but if Clooney wishes to prosecute them for crimes committed against the Yazidis, Iraqi citizens, that occurred on Iraqi soil and by an organisation headed by an Iraqi national, then she should try her best to lobby Baghdad to accept the ICC's jurisdiction and ratify Protocol II of the Geneva Conventions that is designed to grant further protections to victims of internal armed conflicts that take place within a country's borders.

Being an expert on international and humanitarian law, Clooney no doubt knows this already, so while her stance against Daesh – a state only in Al-Baghdadi's mind – is admirable, one does wonder why she has said very little about prosecuting Iraq – an actual state, albeit a failed one – for the myriad crimes that it has perpetrated against its own people. It is not as though we can easily forget how the world was, not too long ago, up in arms over Saddam Hussein yet they cannot seem to muster an atom of the moral outrage for a far more violent regime now occupying Baghdad.

Under Iran's instruction and guidance, Baghdad's Green Zone regime has directly and indirectly been responsible for the murder, rape, torture, looting and pillage of Iraqi civilians, primarily the Sunni Arab population. This has culminated in an orgy of sectarian violence that has lasted for more than 13 years, as the Iraqi authorities, seeking to avenge themselves against the entire Sunni Arab population for real or perceived crimes committed against them by Saddam Hussein, slake their thirst for blood whilst enriching themselves from Iraq's natural resource wealth and kickbacks from corrupt companies.

The plethora of crimes against humanity and war crimes committed against Iraqi civilians by their own government or terrorist militias that it either supports or turns a blind-eye to are extensive, expansive and would make for very interesting reading for any international law attorney or jurist who genuinely wanted to see justice served in Iraq. Clooney should take heed, because the following is only a small sample of the egregious and unforgiveable crimes that Baghdad and its Iran-backed militia allies have committed against the Iraqi people.

As Daesh was advancing across Iraq in 2014, Iraqi Security Forces (ISF) committed horrendous war crimes by executing prisoners without trial or judgment. Human Rights Watch reported in July 2014 that 255 prisoners, mostly Sunnis, lost their lives to ISF soldiers, mostly Shia, who could not stand toe-to-toe with Daesh and so inexplicably decided to take out their cowardly frustrations out on unarmed, and helpless prisoners, many of whom were likely languishing in Iraqi prisons for sectarian or political reasons rather than having committed any crimes.

Human Rights Watch even specifically stated that these credible reports could be used as "evidence of war crimes or crimes against humanity." Joe Stork, the rights organisation's deputy Middle East director said "Gunning down prisoners is an outrageous violation of international law…[the world] should not turn a blind eye to sectarian killing sprees by government and pro-government forces." Most sane people could not agree more with Stork, yet most sane people have been subjected to a media whitewash of Baghdad's crimes by describing the government as "democratic" which implies it will respect human rights. That is as far from the truth as possible.

During the Iraqi campaign to recapture Fallujah last summer, the viciously sectarian Shia Popular Mobilisation Forces (PMF) descended began a campaign of brutal torture and annihilation against the Sunni Arabs of Saqlawiyya near Fallujah. Many news outlets reported witnesses and survivors confirming that Sunni Arabs were tortured, beaten to death and forced to drink the blood of recently slaughtered prisoners, as well as their own urine. Anbar's Governor Sohaib al-Rawi confirmed on Twitter that sectarian Shia militias had murdered at least 49 men and forcibly made a further 643 others disappear. Nobody knows what has befallen these missing men until today, though I doubt they are in the lavish palaces enjoyed by the Green Zone coterie.

These are two small examples from a winding list pulled from over a decade of grave abuses that reads like a horror story. If Clooney eventually figures out that trying to get Daesh in the dock is sheer lunacy and would rather focus on bringing an actual government of an actual state to justice, I and hundreds of thousands of Iraqis would be happy to furnish her with the evidence she needs. Until then, it is fair to say that Amal Clooney is looney if she thinks Abu Bakr Al-Baghdadi is going to allow her to play twenty questions with him in a courtroom.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.

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