What should President Donald Trump do if ISIS crashed a plane into the Freedom Tower next September 11, 2017? After 16 years of a so-called “war on terror,” would experts be able to provide the new President with a clear and effective strategy to confront international terrorism? A short answer to the question is no. In 2015, Stephen Walt denounced a massive, collective failure of the entire U.S. foreign-policy establishment including Democrats and Republican to propose new strategies to deal with international terrorism in the Middle East.
In this essay, I explain, first, the strategic opportunity available through greater US-Russian cooperation and, second, the tools for disrupting ISIS by establishing new international mechanisms—such as a UN Security Council Chief Prosecutor—to go after the group’s leadership and its money.
On the morning of 9/11, as Jack Goldsmith reminds us, President Bush improvised the “war on terror” against non-state actors which was considered to be a more robust response to the threat of terrorism than a standard law enforcement process. As Goldsmith explains, “[f]or decades the U.S. government had officially viewed terrorism as a law enforcement problem.” The Al Qaeda leaders who directed the operations from Afghanistan could have been indicted, and the US could have implemented the arrest warrants in agreement with the Taliban government. But Bush, with the approval of most of the experts, transformed a terrorist attack into what is widely perceived as an endless racial and religious war—westerners against Islam.
The Obama Administration did not use the “war on terror” label but did not change Bush’s main policy; on the contrary, President Obama expanded the military strategy in Syria, Yemen and recently Somalia. There was a change in the tactics though: torture was banned but the physical elimination of the enemies was promoted instead.
The status quo is now war through the direct intervention of the US or through proxy forces, but none of those tactics have been effective in ending violence and establishing law and order. Since 2001, the US lost more than 7,000 soldiers and spent more than 3 trillion dollars including in supporting “moderate” rebel forces which committed atrocities similar to those committed by the terrorists. More than a decade later, Afghanistan and Iraq are unstable and the conflict is spreading to the rest of the world. The “war” strategy promoted ISIS leadership, fueled the conflict in Syria, promoted inter-tribal grievances, led to the expulsion of millions of refugees, created an EU political crisis and undermined security in the entire Middle East.
The bombing policy may be considered legal but it fuels the ISIS strategy of seeking revenge for western attacks against Muslims. Bombing weddings by mistake or the hospital in Kunduz affected innocent Muslim victims and destroyed the support of local communities for the US. In the absence of justice, revenge for them is a moral obligation, and ISIS pretends to represent Islam in a conflict with the West. The “war” strategy has only promoted the demand for ISIS.
The lack of external voices in the US debates results in an absence of alternative proposals. US thinkers prioritize US national security and are not able to even imagine an effective multilateral strategy. European experts have a fragmented approach of dealing with terrorism and immigration in their own territories, and the Arab world is too divided to propose a common strategy. US strategy on international terrorism is not just a US problem, it is a broader issue that is directly affecting millions of people around the world who should be part of the discussion.
I lived in Argentina in the 70s and witnessed the prominence of guerrilla groups and state terrorism. In 1985, as the Deputy Prosecutor of Argentina’s Military Juntas trial, I learned about the short falls of torture and executions as the method to deal with terrorist groups. As the ICC Chief Prosecutor I was involved in 20 of the most serious conflicts of the 21st century and I was shocked by the lack of sophistication in dealing with massive atrocities. The experts seem to have only two strategies: bombing or nothing (called negotiations). I saw the opportunities missed in Darfur and Libya, and I am proposing to develop a new design: the correct combination of security measures to protect civilians, criminal investigations, political negotiations and military operations to disrupt and control the terrorist organizations.
I don’t know what President Trump’s strategy will be and there has been a lot of uncertainty about his positions, but his inauguration provides an opportunity to challenge the status quo on the “war on terror.” Two concepts that Trump advanced during his campaign could be the cornerstone of a new strategy: the development of his opposition to the Iraq war (regardless of the date that began) and his idea of reaching an accord with President Putin.
My suggestions are as follows: first, stop money flows to terrorism and proxy forces, and second, focus efforts on ISIS leadership and its network around the world. In order to do that effectively, it is necessary to align the US and Russian interests and integrate criminal investigations, political negotiations and military interventions. A Prosecutor Office under the UN Security Council presenting cases in different national or international jurisdictions could be a critical institution to help implement such a strategy.
ISIS resources should be targeted to a far greater extent. Any prosecutor with experience in controlling organized crime would advise focusing on the money at ISIS’s disposal. ISIS funds are coming from foreign donors, extortion, taxes, smuggling antiques and illegal drugs, and exploiting oil and other natural resources. There is public information available on those who gave money to ISIS and who are buying their oil, but nothing has changed. Some US allies were financing ISIS, but the design of the current war strategy does not allow the US to confront its “friends.” Instead, a global prosecutor on terrorism could disrupt the business network and could reduce the flow of ISIS financial support without damaging political alliances.
ISIS decision makers and its network around the world, including the weapons suppliers, the logistic and propaganda partners, should be identified and targeted for arrest. Tracking the money could be useful for that. There is no global agency putting together such data. National intelligence agencies are not fully sharing information between one another, and national law enforcement organizations are mostly limited to investigating what is happening in their domestic jurisdictions. There is no global criminal investigation on the whole of ISIS and the source of its economic support. If the US and Russia trust a global prosecutor on terrorism, they could share the information required to build the cases.
To achieve these two measures—stop the money and go after the leadership and the broader network of support—there is a need to build consensus between Russia and the US. Working together, they were able to force Assad to destroy chemical weapons. There are important issues to keep discussing but a negotiation between President Trump and President Putin could create a common global strategy supported by the rest of the world. They can lead a collective effort.
In countering ISIS, the UN Security Council could be an appropriate forum to develop an integrated approach. With an agreement between Russia and the US, the UN Security Council could establish under its control a Prosecutor Office for International Terrorism, without jurisdiction against public officers. Similar to the Lisbon treaty model, such an International Prosecutor would be able to focus the investigation on the entire criminal enterprise, to gather information from different sources and to conduct strategic prosecutions before national or international judges. In legal terms, it would be a less ambitious institution than the International Criminal Court, which would keep working within its jurisdiction provided by more than 120 states parties, but could create a new and more efficient option to control ISIS.
The priority of the investigations should be to disrupt and control ISIS. Indictments should be followed by arrest operations led by special forces and could require the approval of the Security Council, thus providing the US and Russia the ability to veto undesirable investigations or suspend them to facilitate negotiations and defections.
There is an urgency to better integrate political negotiations, military interventions and criminal investigations. Armies have to plan arrest operations during ongoing conflicts in order to implement indictments. The threat of an arrest warrant supported by military arrest operations would add a critical weapon to the arsenal of political negotiations, which could include other mechanisms of justice including reparations for the victims.
Transforming ISIS leaders from enemies into criminals will make a difference in a key aspect: ISIS’ legitimacy. ISIS is not just attacking westerners, it is mainly imposing a reign of terror in the Islamic world, killing, raping and displacing entire communities, imposing “taxes,” kidnapping for ransom, and engaging in protection rackets. The international community could investigate and expose such crimes protecting communities in the Middle East and Westerners at the same time from ISIS attacks.
It is time to move from particularities to universals, from an exclusively US national security strategy to global policies against international terrorism that also protects US national interests.
[Editor’s note: Interested in other perspectives on this topic? See Ryan Goodman’s “Is the US-Russia Pact in Syria Barred by International Law?,” and Rolf Mowatt-Larssen’s “U.S.-Russian Relations After the Russian Hacking Affair”]