ICC Reluctance to Prosecute ISIS: Legitimate Jurisdictional Issue or a Lack of Institutional Backbone?

Jenny Elkin

Vol. 38 Associate Editor

The past few years have seen a dramatic rise of Islamic fundamentalism across the Middle East in the form of radical militant group ISIS. Responsible for targeted killings, rape, genocide, and destruction across huge swaths of land, ISIS fighters have steadily been establishing a dangerous stronghold in Iraq and Syria.[1] The international community, recognizing the need to stymie the spread of ISIS, has chosen to act in various ways. Some organizations have focused on assisting displaced persons, some countries have chosen military responses in the form of drone strikes, and still other groups have taken up arms locally.[2] Amal Clooney has recently made headlines by announcing that she plans to sue ISIS on behalf of her client, a woman horrifically injured by ISIS militants.[3] This has focused attention on another potential course of action against ISIS: prosecution by the International Criminal Court (the “ICC”). The Mandate of the International Criminal Court allows the Court to prosecute crimes of genocide, crimes against humanity, and war crimes.[4] In a report released August 3 of this year, the United Nations has confirmed what the Obama administration concluded in March—ISIS is committing genocide against Iraq’s Yazidi minority.[5] ISIS is also using rape, sexual slavery, torture, imprisonment, and many other crimes against humanity to intimidate and oppress the war-weary people of Iraq and Syria. It is clear that the actions of ISIS fall under the Mandate of the ICC, yet Fatou Bensouda, chief prosecutor of the ICC, has asserted that the Court would not have jurisdiction to even open an inquiry. The question then is whether this interpretation of jurisdiction is a legitimate effort to remain faithful to the Mandate and established parameters of the ICC, or whether an organization with only three convictions to date is using jurisdiction as an excuse to shirk its duties as an international prosecutorial body.[6] As any practicing attorney can attest, the first step to bringing a case before a court is establishing proper jurisdiction. Without jurisdiction, a court may not hear a case. According to the Mandate, “the Court can prosecute crimes committed in states that are party to the Rome statute”. [7] The ICC has stated that because Iraq and Syria are not parties to the Rome Statute which created the Court in 1998, the “jurisdictional basis for opening an investigation into [ISIS] would be too narrow”.[8] While this may seem to settle the issue on a superficial level, other avenues are available to the ICC. Under Article 13(a) of the Rome Statute, the United Nations Security Council may refer a situation to the Prosecutor of the ICC.[9] Attempts by the Security Council to do this have been vetoed by Russia and China, as part of political maneuverings related to support for Syrian President Bashar al-Assad.[10] Another option would be for Iraq and Syria to temporarily allow the ICC to assume jurisdiction, though neither country is a party to the Rome Statute.[11] This is unlikely, as the governments of both countries have themselves been condemned for atrocities they have committed against their own citizens.[12] Allowing the ICC to assume jurisdiction could lead to the prosecution of Syrian and Iraqi government officials for their own crimes against humanity, which they would never agree to. A third option is under Article 13(c) of the Rome Statute. The Prosecutor could initiate an investigation a proprio motu, or on her own authority. Prosecutor Bensouda considered this route, but circled back to territorial jurisdiction being too narrow to attempt prosecution.[13] Though the prospects for all three options seem bleak, the ICC may still initiate investigations and prosecutions of ISIS through means that circumvent the State Party jurisdictional issue. A major international concern regarding ISIS has been the flood of foreign nationals moving to Syria to fight alongside the jihadis. Prosecutions of these individuals would clearly fall within the ICC Mandate as long as they are from states that are parties to the Rome Statute. The ICC has maintained that these foreign nationals would be too low-ranking to justify prosecution by the Court.[14] Though the Court would not be able to target Syrian and Iraqi leaders of ISIS through this tactic, it may not stand to reason that opening investigations into foreign national ISIS members would be a fruitless venture. Successful prosecutions of even low- to mid- level foreign national ISIS fighters could serve as a deterrent to other potential radicalized foreigners, and perhaps to local ISIS militants.[15] The support of the international community for such prosecutions could even open other channels, such as the United Nations Security Council grant of authority. The International Criminal Court should not sit idly by as atrocities are committed within the international community. While leaders create statutes and parameters, it is the people who suffer. If traditional routes seem to be closed, the ICC should pursue more unconventional methods to avoid appearing entirely impotent in the face of brazen crimes against humanity.

[1] Syria Iraq: The Islamic State Militant Group, BBC (Aug. 2, 2014), http://www.bbc.com/news/world-middle-east-24179084. [2] Manjana Pecht, International Responses to ISIS (And Why They are Failing), SIPRI (Jan. 29, 2016), https://www.sipri.org/commentary/essay/2016/international-responses-isis-and-why-they-are-failing. [3] Jennifer R. Breedon, Amal Clooney Sues ISIS While the UN Stands By, Huffington Post (Oct. 1, 2016), http://www.huffingtonpost.com/jennifer-r-breedon/post_13319_b_12220544.html. [4] The Mandate of the International Criminal Court, Human Rights Watch, https://www.hrw.org/legacy/backgrounder/africa/icc0904/2.htm. [5] UN: ISIS Genocide of Yazidis Ongoing, CBS (Aug. 3, 2016), http://www.cbsnews.com/news/united-nations-says-isis-yazidi-genocide-ongoing-in-iraq/. [6] Courtney Hillebrecht & Scott Straus, Last Week the International Criminal Court Convicted a War Criminal, Wash. Post (Mar. 28, 2016), https://www.washingtonpost.com/news/monkey-cage/wp/2016/03/28/last-week-the-international-criminal-court-convicted-a-war-criminal-and-that-revealed-one-of-the-iccs-weaknesses/. [7] Supra note 4. [8] Statement of the Prosecutor of the International Criminal Court, ICC (Apr. 8, 2015), https://www.icc-cpi.int/Pages/item.aspx?name=otp-stat-08-04-2015-1. [9] Aldo Zammit Borda, Explainer: How to Prosecute Islamic State Fighter for War Crimes, Newsweek (Mar. 17, 2016), http://www.newsweek.com/islamic-state-war-crimes-execution-437962. [10] Ian Black, Russia and China Veto UN Move, The Guardian (May 22, 2014), https://www.theguardian.com/world/2014/may/22/russia-china-veto-un-draft-resolution-refer-syria-international-criminal-court. [11] Supra note 7. [12] Iraq’s Executions: Aftershock of ISIS’ Deadliest Atrocity, USIP (Aug. 22, 2016), http://www.usip.org/publications/2016/08/22/iraq-s-executions-aftershock-of-isis-deadliest-atrocity. [13] Supra note 7. [14] Supra note 9. [15] Id.