A Closer Look: Prosecuting ISIS Under International Law: Pros And Cons Of Existing International Justice Mechanisms

Flag_of_the_Islamic_State_of_Iraq_and_the_LevantWhile addressing the UN Human Rights Council in Geneva on its latest report, on 17 March the Chairperson of the Independent International Commission of Inquiry on Syria, Paulo Pinheiro, affirmed that a path to justice could be found “through a Security Council referral [of the situation in Syria] to the International Criminal Court (ICC)”.

On the other hand, that same day Carla Del Ponte, one of the commissioners (and the former Chief Prosecutor of the UN-backed International Criminal Tribunals), sponsored the establishment of an ad hoc Tribunal, since it “could be more efficient and work faster (…), be based near the region, facilitating access of witnesses, documentation and so on” and – last but not least – could be supported even by Russian Federation.

In the following days, French Foreign Minister Laurent Fabius told a UNSC meeting that Islamic State militants must be prosecuted and that “it is essential that the Security Council refer the matter to the International Criminal Court”.

These statements have stoked up the debate on the effectiveness of international judicial mechanisms in prosecuting ISIS militants, which was almost blowing out in the last months (among others, see Beth Van Schaack on Just Security, Carsten Stahn on EJIL: Talk! and Mark Kersten on Justice in Conflict).

Even if at this stage, considering the escalation of ISIS’ assaults and the effects of the ongoing Syrian NIAC, an overwhelming majority of the international audience would applaud at any (?) international justice scenario, in order to better achieve the purpose of efficiently fighting extremists’ impunity, any such initiative should be placed under careful scrutiny before being endorsed by the international community. That is why in the following, brief analysis I’ll not only look into the ICC referral’s, but also into the other available mechanisms’ main pros and cons, in order to prosecute the international crimes allegedly committed in Syria and Iraq.

As to methodology, I’ve chosen to concentrate only on the mechanisms set up in accordance with a source of international law or under the aegis of the UN and which would presumably (hopefully?) result in unbiased judicial proceedings. This is why I’ll focus on :

  1. potential ICC referrals through UNSC resolutions
  2. an ad hoc international criminal tribunal to be established under a UNSC resolution
  3. special tribunals to be established by separate agreements between UN and the territorial States
  4. an hybrid regional tribunal established through an agreement between UN and the territorial states
  5. article 12 declarations by Iraq and Syria accepting ICC jurisdiction
  6. national prosecutions of the so-called “foreign fighters” in compliance with UNSC Resolution 2178/2014;

I will not investigate solutions such as the establishment of special jurisdictional organs in Iraq and Syria, in accordance with domestic law, to be modelled on the War Crimes Chamber in Bosnia-Herzegovina or the International Crimes Tribunal in Bangladesh; or as an hybrid regional tribunal established by – or under the auspices of – the Arab League (an option that surfaced in 2012, with respect to the Syrian war), which is not being legitimated by the Charter of Arab League (that is why, in considering the option of establishing an hybrid tribunal to deal with the Syrian war, Beth Van Schaack suggested that it could have been created within the judicial system of one or more of the border states that had been most impacted upon by the conflict).

1) The referral of the situation to the ICC Prosecutor by means of a UN Security Council resolution, and in particular

a) a “territorial referral”, related to the area under ISIS control (embracing a part of Syrian, as well as a part of Iraqi territory)

PROS: would allow confronting the so-called system criminality, at the same time enabling the Prosecutor to investigate anybody else’s conducts in that area; would trigger an impartial and comprehensive investigation;

CONS: being State authorities’ cooperation needed, the ICC organs would have to rely not only on Iraqi, but also on Syrian army and enforcement agencies, with the risk of ending up “legitimizing” Bashar al-Assad regime and/or being manipulated by his side (sort of “Museveni/LRA scenario”); its adoption would presumably be agreed under the condition of an “operative paragraph”, such as para. 6 of Resolution 1970/2011 on Libya, excluding ICC jurisdiction over nationals of non-States Parties;

b) an “individual referral”, related to specific ISIS fighters’ conducts (e.g. the attacks to the Yazidi minority that were recently described as genocide in a report commissioned by the UN Office of the High Commissioner for Human Rights)

PROS: having excluded any conduct related to the Parties to the Syrian NIAC, the international investigation could better serve the cause of the fight against ISIS (even in the deterrence perspective);

CONS: could be considered in breach of the Rome Statute and ICC practice, having been prohibited those referrals aiming at “manipulating” international justice by means of directing the investigations towards a party to the conflict – after the Ugandan self-referral, the OTP notified the States’ authorities that any investigation concerning a situation has to be impartial (see this statement by Moreno Ocampo; but also Bill Schabas, who affirms on the contrary that in the Rome Statute there’s “no rule that says it’s impossible [to refer a group to the court]”).

Fatou Bensouda
Fatou Bensouda

Generally speaking, since it has no inherent, territorial jurisdiction on ISIS (as Fatou Bensouda has reiterated last week – see also the interesting post Barrie Sander dedicated to this unprecedented statement on Justice in Conflict) and it has therefore to rely on an UNSC referral, the ICC option has two further CONS: first of all, the opposition of any of the P5, and in particular by Russian Federation and China, that would presumably veto any resolution affecting al-Assad’s side – as they did on 22 May 2014; secondly, the need to efficiently manage the scarce resources available to its organs (unless UNSC for the first time provided an ad hoc funding), which would force the Prosecutor to focus on the individuals bearing the biggest responsibilities – namely those whose arrest would be the most unlikely;

2) the establishment an ad hoc international criminal tribunal by means of a UNSC resolution*

PROS: for the reasons mentioned by Carla Del Ponte (proximity, access to evidences and witnesses), and provided that the International Tribunal was adequately funded, it could better enhance individual accountability;

CONS: even if Russian Federation and China didn’t veto any such resolution, the Tribunal could be perceived as “victors’ justice” – bringing to a further escalation of extremists’ atrocities;

3) the establishment of two different special tribunals for Syria and Iraq*

PROS: their legitimacy could be largely recognized by local populations (and even by the accused); it would be easier to establish their jurisdiction in compliance with the national legal order;

CONS: the respective Prosecutors should “locate” any crime, with the risk of missing the systematicity and the transnational and organizational elements. As to a Special Tribunal for Syria, on the one hand, if it reflected its political interests, it could be perceived as (re)legitimizing al-Assad’s side and therefore opposed by Western Powers; on the other, if it was set up against Syrian Government’s will, it could be accused of being a neo-colonialist institution and – what would be even worse – could end up being “a giant without arms and legs”. As to a “Special Tribunal for Iraq”, it would have to confront itself with the State’s organizational weakness, which resulted in its inability either to repel the 2014 ISIS offensive and to enforce national law in that area;

4) the establishment, through agreements between UN and Syrian and Iraqi governments, of an hybrid regional tribunal *

PROS: the hybrid model would fit with the transnational dimension of ISIS crimes; moreover, this Tribunal could be established under the auspices and with the support of Arab League, would reflect the judicial culture of the targeted States and, being proximate to the conflict, could better deal with sensitive political issues;

CONS: the establishment of one regional criminal tribunal, to be set in compliance with two different national legal orders, would be the biggest legal challenge of contemporary international criminal law; turning to the political, it would be built on a compromise (even on the jurisdiction of the court) and would rest on the balancing of the competing interests of different actors (such as those of al-Assad and those of the Western Powers);

* (INHERENT CONS) As a matter of fact, it seems that effective Special International Tribunals, with an actual impact (with regard to prosecutions, but also to the deterrent effect), could only be established after the end of the conflict(s) – does anybody remember Srebrenica? – and on condition that they could rely on enforcement agencies and mechanisms.

5) The deposit of an ad hoc declaration by Iraq and/or Syria accepting ICC jurisdiction on ISIS conducts

PROS: they would have the effect of triggering a preliminary examination by the Prosecutor on the crimes allegedly committed by ISIS fighters on the Iraqi and Syrian territory, without having to confront the risk of any veto;

CONS: since also those declarations couldn’t have the effect of manipulating international justice, it’s very unlikely that al-Assad side would accept ICC jurisdiction and the risk of being held accountable for (the analogous) conducts committed in the Northern areas of the country by the forces loyal to the Government; on the other hand, despite Iraqi Government could be eager to accept ICC jurisdiction, it won’t presumably be able to arrest and transfer any accused to the Court.

6) The prosecution of the so-called “foreign fighters

a) by national jurisdictions, under the active nationality principle

PROS: such actions have a strong legal basis under international law (UNSC resolution 2178/2014); could prevent individuals from joining ISIS, since they would face the risk of being arrested, from that moment on; could be used in order to promote desertions, weakening the terrorist organization

CONS: despite having tracked “more than 13,000 foreign terrorist fighters from more than 80 Member States” (see UNSC Press Release SC/11580), those prosecutions wouldn’t presumably affect those bearing the greatest responsibilities, such as ISIS leader Abu Akr al-Baghdadi (an Iraqi national) and his inner circle;

b) by the ICC Prosecutor, invoking active nationality principle

PROS: under articles 12.2, 13 c) and 15 of the Rome Statute, the Prosecutor can initiate motu proprio investigations concerning the crimes allegedly committed by State Parties’ nationals – even those with a transnational character;

CONS: since Syria and Iraq are not Parties to the Rome Statute, their nationals – namely: the overwhelming majority of ISIS fighters, including most of its leaders (as Fatou Bensouda noted in the cited comment published last week on The Guardian)  – won’t be held accountable, with the effect of committing the ICC limited resources to prosecute mid and low-level fighters.

All things considered, I think that the prosecution of the so-called foreign fighters by national jurisdictions would be the only viable and effective solution.

Indeed, to date two conclusions can be drawn: the international community is not (yet) able and willing to refer an “ISIS case” to any international jurisdictional mechanism; and this is not a shame, since in my opinion the main lesson learned from the recent evolution of international criminal law is that international justice should not deal with situations raising sensitive political issues, such as that occurring in Syria and Iraq, before an institutional transition has been completed (that is why I agree with Dov Jacobs’ criticisms against the introduction of The Chautauqua Blueprint For A Statute For A Syrian Extraordinary Tribunal To Prosecute Atrocity Crimes, which illustrated “the form of illusionary neutrality of some promoters of international criminal law”).