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Monday, May 18, 2015

International Prosecution of the Violations of the Islamic State

fatou.jpgOn 8 April 2015 Chief Prosecutor to the International Criminal Court (ICC) Fatou Bensouda issued a statement in regards to the alleged crimes committed by the Islamic State (IS) in Iraq and Syria. Following her arrival to the court in the summer of 2014, her office has received immense pressure to address these systematic atrocities characterizing the conflict. The Islamic State (ISIS, ISIL or Daesh) has been accused of perpetuating a series of internationally recognized crimes, including mass executions, sexual slavery, rape, gender-based violence, torture, forced recruitment of children, and the persecution of ethnic and religious minorities. Bensouda recognized and acknowledged the severity of the situation in Iraq and Syria, which serves to threaten regional and global peace.

In her statement, Bensouda highlighted the legal barriers to prosecuting the Islamic State, as neither Syria nor Iraq is party to the Rome Statute (the founding treaty of the ICC), giving the court no jurisdiction over crimes committed in these territories.

The ICC was formed through the Rome Statute of 1998. With 123 states party, the Rome Statute established an international tribunal in The Hague, The Netherlands to try individuals on cases of international war crimes, the crime of genocide, crimes of aggression, and crimes against humanity. As an intergovernmental organization, its jurisdiction is not primary but complementary. First and foremost, states have the initial authority to try a criminal before the ICC can step in. However, if the government is either unable or unwilling to prosecute an individual, the case can move to the ICC.

There are three points of general application of referral to the ICC. The first is referral by the Security Council regarding any state member of the United Nations--regardless of its status of statute ratification or support/rejection of such jurisdiction. This was the case in Libya and Darfur, Sudan.

Secondly, Bensouda's office has jurisdiction over state-based referrals, wherein states party to the Rome Statute may refer their own situations (as was the case in Uganda) or the situations of another state party to the statute. This type of jurisdiction only applies to crimes allegedly committed by perpetrators who are nationals of a state party or that have been committed in the territory of a state party to the ICC. This would allow the ICC to prosecute foreign nationals who have traveled to the region to join the Islamic State (such as Tunisia, Jordan, France, the UK, Germany, Belgium, the Netherlands, and Australia). However, such a move would largely exclude individuals with high-ranking leadership positions in IS who are most complicit in crafting the policies responsible for these crimes, as their citizenship lies elsewhere. This proves problematic as the court was created to prosecute those who bear the most responsibility for the gravest crimes, not solely low-level perpetrators.

Finally, the third potential route to prosecuting IS perpetrators is through Chief Prosecutor Bensouda acting propio motu, or on her own initiative. The ICC Prosecutor has the authority to act on her own initiative over crimes committed by nationals of a state party or in the territory of a state party, regardless of the support of the state(s) under discussion. This is how the ICC became involved in prosecuting crimes in Kenya.

Alternatively, there is a separate mechanism by which non-state parties can refer restricted jurisdiction to the ICC over a subset of crimes within a specific time period. This is how the Court became involved in Cote d'Ivoire, before it became a full member. Syria and Iraq could take this route, although it looks like an unlikely scenario, as state leaders are hesitant because of the chance of illuminating their own violations when under the spotlight of the court.

Based on the structure of the court and its statute, Bensouda found the jurisdictional limits to be too narrow at this point, and called for "renewed commitment and a sense of urgency on the part of concerned states [to] help identify viable avenues." Although it is the duty of the international community and activists in the field of human rights to maintain a sense of accountability, it is not necessarily feasible at this moment.

Yet, as Florencia Montal, PhD candidate in political science at the University of Minnesota and former intern at the ICC under former-prosecutor Luis Moreno Ocampo, explains, what is often less discussed is that jurisdiction and the sovereignty associated with it do not have to come as an indivisible national unit. The ICC can be asked to examine crimes committed in a specific region of a country. This was the case of the Sudan referral by the Security Council, she acknowledges, by which the ICC received jurisdiction over crimes committed in the Darfur region. Therefore, spillover anxieties can be calmed by restrictively delimiting geographical and temporal jurisdiction, meaning the path to accountability in the region is not necessarily a dead end.

Nevertheless, this is not meant to discourage the existence of criminal responsibility for these grave violations of international law. As Montal recommends, advocates should still be taking an active response in protection of human rights and in documenting violations. The best steps forward for the ICC and international community may be to prepare for prosecution in the future--wherever and whenever it may be. As such, activists should be supporting those in the field--be it NGOs, individuals, or government officials--as they document the violations committed by IS through interviews, photographic and visual records, or other means. This is not a time to sit still. Rather, the reactions to the current situation are a call for renewed efforts in promoting, supporting, and advancing human rights.

-written by Cameron Mailhot and Marie-Christine Ghreichi