A respected British government minister, Tobias Ellwood, has called for the two remaining living members of the so-called "Beatles" Islamic State syndicate to be tried at the International Criminal Court in the Hague.
Speaking to the Times and Telegraph newspapers, Ellwood rebuffed the idea that the two men, Alexanda Kotey and El Shafee Elsheik, be tried at Guantanamo Bay. The U.S. military detention facility in Cuba, Ellwood said, "created a new combatant status that bypassed the Geneva convention, used torture and failed to address a wider global jihadist insurgency that continues today."
Stting Guantanamo aside (here's why I believe it's the best venue for detaining and trying the terrorists), there are good reasons why the ICC would be a terrible choice for any trial.
First off, the ICC is ideologically biased against United States' counter-terrorism operations. The best evidence for this is the ICC's recent decision to pursue a war crimes investigation of U.S. counter-terrorism activities in Afghanistan. While the ICC claims its work is driven by an objective pursuit of facts and holds firm to proven investigative procedures, its staff is defined by left-wing judicial activism and a profound aversion to U.S. foreign policy.
On its own, this should be enough to motivate President Trump's disregard for the organization.
Second, the ICC is extremely inefficient in its pursuit of justice. Two statistics tell the tale here: Since 2002, the ICC has convicted a grand total of four individuals and its budget is around $150 million a year.
But, the ICC isn't just inefficient, it's utterly incompetent. Remember what happened last November when war criminal Slobodan Praljak decided to have a drink? He managed to kill himself in front of the full court, and announced his suicide while it was in session.
More than that, the ICC is profoundly unfit for the kind of evidence that would be needed to convict Kotey and Elsheik. That's because much of the evidence against the two men likely comes from U.S. and allied intelligence services. And that's a problem A) in that the U.S. and its allies won't want to turn over that evidence for fear of compromising sources and methods and B) in that the Beatles' defense teams would use the intelligence for their own anti-American agenda. This already happens at Guantanamo trials, but at least it's far less destructive than it would be were such evidence presented at the ICC.
Finally, the Hague is too cozy. While it might seem like a peripheral issue, there's a great difference between a luxury hotel and a secure incarceration facility that safeguards a prisoner's human rights. When it comes to the ICC, the template is very much that of the hotel. Detainees have a private toilet and washing area, access to computers, televisions, a library and even personal trainers. They are also given expansive visitation rights and the right to engage in private conversation with defense teams and diplomatic representatives of their home nation. These two men's access to privileged communications would pose a direct and unacceptable threat to U.S. national security in that it would allow them to pass coded messages to other terrorists.
Such opulent treatment would be a ludicrous act of supplication to terrorists. It would play to the narrative of western weakness and inspire ISIS to believe that we lack the stomach for the struggle against them. This is not hyperbole.
After all, a sustaining narrative of ISIS recruitment is the claim that western democracies are weak and decadent and that ISIS offers a higher cause of sacrifice in service of ordained ideals.
Ultimately, this speaks to my argument from last week that the best way to deal with Kotey and Elsheik is to subject them to the justice of that which defeated them: the U.S. military. That course will deny ISIS fighters a propaganda victory and prove to the world that war against the United States will, one way or another, always be met with appropriate justice.