Part I: The International Criminal Court (ICC) and the International Atomic Energy Agency (IAEA)

Given last week’s focus on Iran, it might be insightful to view the problems of establishing war crimes by the International Criminal Court (ICC) in parallel to the attempts of the International Atomic Energy Agency (IAEA) to uncover and examine efforts to get around the nuclear non-proliferation regulations of the agency. After all, comparisons have long been considered one of the best recipes for gaining insights and knowledge. The role of the comparison is not to use one entity to assess the other, but rather to bring forth characteristics that otherwise might go unnoticed.

The IAEA has slipped in news coverage with the downgrading in importance of the Iran nuclear deal by the Biden foreign policy agenda. In headlines, coverage of the JCPOA (Joint Comprehensive Plan of Action) dealing with Iran’s nuclear program were initially replaced by stories on and controversies over the International Criminal Court (ICC). The core issue for the IAEA has been the comprehensiveness and thoroughness of its monitoring and inspections functions specifically of Iran’s behaviour. The ICC is a court of last resort that is intended to complement, not replace, national Courts and is governed by an international treaty, the Rome Statute,

The ICC investigates and, where warranted, tries individuals charged with war crimes, crimes against humanity, genocide and the crime of aggression. The IAEA investigates failures by countries to observe the nuclear non-proliferation treaty. The ICC as the world’s first permanent international criminal court. has a world-wide mandate to focus on investigations to determine what happened and by whom with respect to charges of war crimes, crimes against humanity, genocide and aggression, but, most importantly, has a judicial function as well. The ICC determines individual cases of guilt or innocence, metes out and imposes penalties.  

The IAEA recently took soil at three sites in Iran that had shown traces of man-made uranium, an indication that illicit atomic weapons research had taken place at those sites. In contrast, it is virtually impossible for the ICC to gather forensic evidence from a site to determine whether a crime took place, though it certainly does so when illegal weapons, such as phosphorous gas bombs are used. It does interview witnesses, but it is difficult to consider them unbiased, a difficulty the IAEA faces except when examining expert witnesses. The IAEA often now has video evidence as well as witness testimony, but as every defense attorney and watcher of Law and Order knows, those two sources of evidence are themselves suspect.

At the same time, if the IAEA is faced with a country like Iran which allegedly deliberately razed buildings and removed equipment in an effort to sanitize suspect sites, what kind of cover-ups can the ICC suspect from countries in which its citizens/members are accused of war crimes? Rafael Grossi (IAEA’s director-general): “After 18 months, Iran has not provided the necessary, full and technically credible explanation for the presence of these particles.” Can and does the ICC claim that the country from which persons come who are suspected of war crimes failed to provide “the necessary, full and technically credible explanation” for the action taken? This seems to be an important difference.

Dissembling and white-washing have been patterns of behaviour for Iran. Have they also been for Israel, the Hamas regime in Gaza and the Palestinian Authority (PA)? The IAEA puts international pressure on the US and other world powers to strengthen the inspection regime under the JCPOA. Negative results can culminate, not in criminal prosecution or jail, but in economic sanctions and war. In the case of the IAEA, the complement to inspections are diplomatic negotiations. Will Biden slip away from his determination to stress diplomatic engagement and resurrect Trump’s policy of maximum economic and diplomatic pressure and even introduce military pressure? In comparison, what are the international political implications of the ICC?

If the IAEA has met resistance from Tehran cooperating and even refusing to provide a full accounting of its nuclear materials and equipment, what kind of resistance can the ICC expect from Jerusalem, Ramallah and Gaza, even though the PA and the Gaza regime have promised to fully cooperate with the ICC? Unlike Iran, as a signatory to the nuclear non-proliferation treaty which accepts the jurisdiction of the IAEA, Jerusalem has not signed up to be a member of the ICC and denies the ICC has jurisdiction. Israel, unlike Iran, therefor, has different grounds for refusing cooperation. Tehran is by international law fully accountable to the IAEA. There is a serious question whether Jerusalem is accountable in any similar way to the ICC.

If Iran is found to be in breach of the rules governing the non-proliferation of nuclear weapons or even just its obligations to be accountable, that necessarily creates a full-blown crisis for the UN Security Council. The ICC, in contrast, does not hold countries to be responsible for war crimes or crimes against humanity, but only individuals. The presumption is that individuals, not states, are responsible, and will be charged, not with political deviance, but with actual crimes and be subject to prison terms. Yet it is the state or a political authority that determines cooperation, not individuals. Non-compliance with the ICC creates a political crisis, but less for the international political order and more for the effort to establish the rule of law internationally.

That is an irony, Where state behaviour is not on trial, but should be (as in war crimes), the crisis is legal; individuals, not the state, are prosecuted. Where state behaviour is on trial (in abuses of the nuclear non-proliferation treaty), the crisis becomes political not legal. Yet it is the political that drives the investigations of the ICC much more than the investigations of the IAEA which tend to be matters of technical evidence, suggesting misbehaviour rather than criminal activity. In addition to whether states or individuals are the subjects for examination, the different types of evidence to be gathered and the political implications of each investigation on a global level, there is also a difference between modes of covering-up non-compliance.

Iran tries to scrub the evidence from existence and then acts to put severe limits on the investigators. Tehran informed the IAEA last month that it will limit the ability of its inspectors to visit suspect sites and facilities even more than before. At what risk? The European powers – more specifically France, Germany, Great Britain – threaten to censure Iran. However, in the case of Israel, a country which has its own system of investigating war crimes, crimes against humanity and genocide, the issue then is whether its own investigations are conducted properly and thoroughly and whether the actions revealed are being measured by international laws, rules and standards.

There is another difference between the IAEA and the ICC that is procedural. The IAEA follows the tradition of English-speaking countries of separating the policing and investigative functions from the judicial ones, or, at least, their equivalent in the political arena. In contrast, the ICC is responsible for determining what situations should be investigated, for establishing evidence and for determining whether there is enough evidence to warrant prosecution and then proceeding with a prosecution if it deems one is warranted.  

Clearly in each case, the issue is the degree to which the agency can trust the country being investigated or the government investigating individuals accused of a crime. Of course, if a regime proves to be untrustworthy in the information it puts forth to the IAEA, then there is no doubt that such a country cannot be trusted to have nuclear weapons or to even have the capability of producing such weapons. There is not nearly so much at risk if a government’s system to investigate and try war crimes is inadequate. A program can be launched to improve the justice system in this regard. Clearly, this depends on the degree of seriousness of the crime, the degree the standards being used conform to international standards and whether the country implementing such laws is sincere.

In the IAEA case, the investigators search for and may find evidence to reinforce or undermine distrust. In the ICC case, it is only when the ICC already distrusts the state system of justice that the ICC steps in. Yet there is no investigative process for making such an assessment. Rather, the decision to investigate and conduct trials is usually driven by political factors. Clearly, past behaviour or misbehaviour is a clue to current behaviour. Yet there is no system of undertaking detached and objective historical studies by the ICC. In the case of the IAEA, Iran’s past record of deceit and efforts at nuclear weaponization were studied and, further, had to be resolved as a condition of the JCPOA going into effect. Iran was required to provide the IAEA access to documents, scientists, and military sites related, or possibly related, to any covert weaponization work. In other words, history is at the heart of the IAEA inquiry, but scholarly or scientific historical studies are absent from the ICC one.

However, history itself can be a form of coverup. The IAEA Report in 2015 found no evidence, at least, no credible evidence, supporting any claim that Iran was involved in a program of weaponization of nuclear material after 2015. However, there were reasons it found no evidence. Iran denied the IAEA investigators access to the relevant scientists. Any documents that were suspected of providing evidence for such a program were denounced as forgeries. And even when the evidence was unequivocal, such as the detection of nuclear material at the Parchin site, Iran bold-facedly insisted that it must have come from their conventional military program but without offering a credible account of how that could happen.

However, past sins may create suspicion of present sins. But such a record is not proof. The IAEA has to provide evidence that is current. However, in the case of the ICC, the evidence is not about a continuing program, but about a specific incident in the past. Thus, although past behaviour and history of the country’s behaviour is not the focus, the investigation is all about past behaviour.

What does an investigative agency do when the evidence uncovered is insufficient to conclude without a doubt that Iran is in breach of non-proliferation protocols? Does the agency disregard the evidence it does have? Or accept the reality that Iran is a dissembler? Or double down on future investigations? Or all of the above? The choices are very different in the case of an ICC investigation, for there must be a finding of guilt or innocence, innocence meaning that there is insufficient evidence to establish the guilt of the individual being tried. In other words, the ICC must arrive at a definitive conclusion. The IAEA need not do so. Assessing degrees of responsibility is part of its accountability exercise rather than stark either/or judgments. On the other hand, judicial proceedings are far less dangerous than military reprisals.

I just finished watching the ten-part series, The Looming Tower on Prime Time based on the 9/11 inquiry. In addition to its reference to the gold star of investigations, the docudrama brought together the two themes of this comparison, the comparison of the judicial approach of the ICC and the sanctions and military implications of the reports of the IAEC by examining the roles of the FBI as a criminal investigating agency in comparison to those of the CIA focused on political issues and their implications for reprisals and war..

In the docudrama, the FBI took the juridical approach. The CIA, that seemed to regard the FBI as a greater enemy than bin Laden, took the military route. A more detailed review of the ten-part series is warranted to clarify the two approaches.

Tomorrow: The Looming Tower: a movie review

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