By John Crowley
Business Insider is hamstrung on the idea of Iran winning a war crimes case against US President Donald Trump at the International Criminal Court (ICC), based on his decision to authorize a drone strike on Major General Qasem Soleimani. With no less than half a dozen articles featuring speculation and, at times, misinformation, from supposed "experts" on international law, the publication is one of many which has led to public confusion on the already complicated US–Iran issue. Furthermore, any delusions on this topic put the United States and her allies in the Middle East – namely Israel and Saudi Arabia – at greater risk in an already tenuous situation. The bottom line is this: neither the United States nor Iran recognizes the legitimacy of the ICC because they are both non-state parties of the Rome Statute. Consequently, any calls for investigation on either side will fall on deaf ears. The real story is that Iran’s recent announcement to file charges at The Hague is, at best, mere grandstanding or, at worst, a perverse and hypocritical understanding of the Rome Statute and the ICC. Iran cannot have its cake and eat it too.
Among the archive of bad takes are two Business Insider articles that rely on speculative tweets, in one, and lousy polling data in the other. On January 15th, the online publication put forward a fundamentally flawed article arguing that Iran has a "shockingly strong" (and winnable) war-crimes case against Trump. This piece, to put it bluntly, is non-substantive, clickbait journalism. Moreover, it provides a platform for Iran’s judiciary platform rivaling that of the Tehran Times. The article, written by Mitch Prothero, correctly points out that the US is not a signatory of the Rome Statute but fails to mention that Iran, like the US, is not a state party. To be more specific, Iran has signed but not ratified the treaty, effectively establishing its independence from the International Criminal Court. Beyond this glaring omission, the article goes on to seriously suggest that Iran could win a case against the United States at the ICC. Suffice to say this claim is absurd on face value because the Court would never hear such a case simply because it is outside of its jurisdiction.
The Rome Statute makes the ICC’s jurisdiction very clear. To start, Article 5 outlines the most serious crimes under the Court’s jurisdiction: the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. Later, Article 13 explains that the Court may exercise its jurisdiction concerning a crime mentioned in Article 5 if the crime is referred to the Prosecutor by a state party or the United Nations Security Council. The US drone strike on Soleimani meets neither criteria, rendering Prothero’s argument null and void. In exceptional circumstances, the Prosecutor can initiate an investigation proprio motu under Article 15. Such a move against the United States, however, is unlikely to move forward within the Court, especially given the Trump administration’s commitment to block any hostile action towards the United States.
In a separate but equally misinformed Business Insider piece, a similar war crime narrative is presented based on flimsy polling data. The Insider Poll asked, "Iran announced it will pursue war-crime charges against President Donald Trump at the International Criminal Court in the Hague over the assignation of Gen. Qassem Soleimani. Do you agree or disagree with such charges?” Quite simply, this poll is unfair and misleading. Like Prothero’s article, Isaac Scher and John Haltiwanger’s article relies on a mischaracterization of the ICC's jurisdiction under the Rome Statute. What good is polling data predicated on charges which will be dead on arrival at The Hague? It is unreasonable to expect that most poll respondents would have a robust legal opinion on the drone strike, much less a working knowledge of the Rome Statute. If nothing else, this Insider Poll was a missed opportunity to check the political pulse of the American people on US–Iran tensions. In fairness, Scher and Haltiwanger acknowledge that "the poll did not ask for respondents' opinions on other aspects of Iran's position," giving some credence to a well-intentioned effort.
Despite an abundance of sloppy journalism (and some lesser-known good journalism), there is an interesting conversation to be had here. The US-Iran conflict is a topic worthy of public discourse because it is an issue of international security. The United States’ decades-long commitment to the security of Israel, among other allies in the region, hangs in the balance. If Iran were genuinely interested in referring a case to the ICC on the death of Soleimani, it would ratify the Rome Statute and become a state-party to the Court. As a state party, Iran would have the full authority to refer a case against President Trump (and others) to the Prosecutor under Article 13 of the treaty. The truth is, Iran is unlikely to ever ratify the Rome Statute because of a simple cost-benefit analysis. Iran has far more to lose than it does to gain in aligning itself with the full weight of international law. Candidly, I believe Iran is aware of its legal quagmire even if Business Insider is not.