Very good and interesting exchange between the two of you, Kevin Jon Heller and Scott Paul. I also appreciate the anonymized Ambassador's comments.

Steve Clemons

To be clear, the war crime does have to take place in an armed conflict -- the basic jurisdictional requirement. But the individual war crime does not have to be part of systematic violence.

Hm, interesting thought. I had understood differently, but you could be right. I'll have to ask around on this point.

Scott is absolutely correct that the ICC has no jurisdiction over crimes committed by Americans in Iraq, as neither Iraq nor the U.S. is a party to the Rome Statute. (The Iraqi once government once threatened to join, then quickly backed off. Wonder what happened in the interim...)

That said, if the ICC did have jurisdiction, there is no question that the killings could be prosecuted as war crimes. Article 8 of the Rome Statute provides that "[t]he Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes." The "in particular" language, which Scott didn't quote, is actually critical, because it makes clear that a plan, a policy, or the large-scale commission of war crimes is not a necessary element of a war crime -- unlike "widespread and systematic attack," which Scott quite rightly emphasizes is a necessary element of a crime against humanity. In terms of a war crime, the "in particular" language simply foregrounds the need for the ICC Prosecutor to take the systemic aspect of the violence into account when he decides which specific war crimes to prosecute. He is always free to prosecute an individual war crime if he thinks it is serious enough.

Ya gotta wonder just how many gangbangers are being trained in urban warfare.

OK, I swear I'm not rebutting Steve's post just because he just came out on the other side of the Armenian genocide issue. There is a legitimate point to be made, though, that Steve's ambassador friend is off target regarding the International Criminal Court and Blackwater.

It couldn't happen. First of all, Iraq is not a state party to the ICC, so the Prosecutor couldn't initiate an investigation.

Second, as egregious as the crimes committed by Blackwater personnel are, I don't think they rise to the level of those laid out in the Rome Statute of the ICC. Committing war crimes isn't enough; the ICC only has jurisdiction over war crimes "when committed as part of a plan or policy or as part of a large-scale commission of such crimes." Similarly, it can only hear cases on crimes against humanity "when committed as part of a widespread or systematic attack directed against any civilian population."

That means that unless some Blackwater employee orchestrated systemic violence, the terrible crimes that were committed could not be prosecuted at the ICC. And even in that case, since Iraq is not a State Party, the only way the ICC could investigate the situation is if it were referred by the Security Council, with U.S. consent.

Iraqis will have to look elsewhere for justice.