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Islamic State
of Iraq and Syria, infamously known
as ISIS is the biggest threat to
humanity and world peace in modern times, on the other hand it is incumbent
upon United Nation Security Council, International Court of Justice, and International Criminal Court to maintain
world security and peace. And for maintenance of peace and security it is
imperative for United Nation Security Council and International Criminal Court
to bring ISIS to justice. This paper will elucidate the dilemma which International Criminal Court faces in exercising
jurisdiction over ISIS and establishing identity of ISIS. This paper will
also throw some light upon the practical consideration which International
Criminal Court is facing over prosecution of ISIS.

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ISIS is the deadliest terrorist organization operating
today and the greatest threat to world peace, amassing more fighters, more
funding, and more territory than any other terrorist movement.1
The Islamic State’s fanaticism and disciplined organization is similar to the
Khmer Rouge in Cambodia and the Nazi Regime. On top of employing tactics of intimidation
and public punishment, ISIS aims to exterminate entire categories of people. The
group’s unparalleled ability to transmit its message, control hundreds of
square miles in Northern Syria and Northern Iraq, and impose harsh Shari’a law
sets the terrorists apart from Al-Qaeda. 2ISIS
began as a fledgling group in United States military jails following the Iraq
war where Al-Baghdadi himself spent considerable time. It came onto the world
stage in June 2014 when it
overwhelmed ill-equipped American-trained Iraqi forces and took over Mosul,
Iraq’s second largest city. Since its ascendency, the group has been responsible
for killing and uprooting thousands of Yazidis
(a small Christian sect) and Shi’a Muslims. Additionally, it has persecuted
gays and lesbians and used Islamic Law to justify its rape of captured women.4
The group consists of an unusual coupling of forces including: i) Religious
extremists recruited from the Arab world and Europe, many of whom have previous
criminal backgrounds; and ii) Ex-Ba’ath military and political officials. It
has committed its atrocities with relative impunity, posting videos of gruesome
killings online and documenting its reign of terror in print media and on the
ISIS, the synonym of terror has been trying to capture territory in Syria, and
due to the war between ISIS and the Syrian govt. more than 4,00,000 people have
lost their lives since 2011, and still ISIS has not been prosecuted. Part of
the reason the world community has been unable to punish ISIS officials and
hinder its efforts is that there does not exist any legal mechanism by which to
arrest and prosecute ISIS members. Therefore, the real issue is whether the
international legal system is prepared to stop this large-scale suffering and
worldwide threat.4

In 1998, the international community came together and
created framework for the ICC with the purpose of ending “impunity for the
perpetrators of ‘atrocities that deeply shock the conscience of humanity. International Criminal Court (“ICC”,
the “Court”) headquartered at Hague, which currently stands as the one
permanent international legal institution endowed with the ability to prosecute
for individual criminal liability. Its governing document, The Rome Statute,
seeks to assert jurisdiction over persons committing “the most serious crimes
of international concern.”5
The Court receives cases through one of
three mechanisms: i) when a State that has signed onto the Rome Statute refers
a situation where there is a reasonable basis to believe one or more crimes
within the Court’s jurisdiction have occurred; ii) the United Nations Security
Council, acting under its Chapter VII powers, refers a situation to the Court;
and iii) the Court’s Prosecutor decides on her own to initiate an
investigation—proprio motu.6
The prosecutorial process proceeds through a preliminary examination phase
where the Prosecutor considers a wide range of evidence to determine whether
there is a reasonable basis to proceed to a formal investigation.7
If the situation is commenced proprio motu the Prosecutor will need the
Pre-Trial Chamber’s authorization to commence an investigation Irrespective of
the referral method, the Rome Statute pronounces jurisdictional limits whereby
only those acts committed after the Rome Statute’s coming into force on July 1,
2002 (or the date on which a State signs onto the Statute) and acts committed
on the territory of a State Party or by the national of a State Party can be
investigated and eventually prosecuted. 8Any
party to the Rome Statute of the ICC (“Rome Statute”) accepts the
jurisdiction of the ICC but there are limits on the ICC’s jurisdiction. The ICC
exercises complementary jurisdiction in which the ICC’s jurisdiction is
secondary to the state’s domestic courts. Under complementary jurisdiction, the
ICC must defer to the state’s judicial system unless that system is unwilling
or unable to genuinely investigate or prosecute a crime that would otherwise be
under the ICC’s jurisdiction. The ICC serves to bring perpetrators of international
crimes to justice, a notion that once seemed unimaginable on an international
scale.  However, despite immense
advances, the international community struggles to suppress self-initiating
terrorist organizations like ISIS.9


As mentioned above, the ICC was established with a
purpose to prosecute the crimes which shock the conscience of humanity, still
the same institution seems to be failing in prosecution of world’s deadliest
organisation. As the ICC prosecutor Fatou
Bensouda while accepting that ISIS has allegedly committed International
crimes she stated that indeed the atrocities committed by ISIS does constitute serious crimes of concern to
the international community and threaten the peace, security and well-being
of the region, and the world. They also occur in the context of other crimes
allegedly committed by other warring factions in Syria and Iraq. But still
after accepting that indeed the alleged crimes committed by ISIS does amount to
international crimes, she further stated that as Syria and Iraq are not Parties
to the Rome Statute, the founding
treaty of the International Criminal Court and so the Court has no territorial
jurisdiction over crimes committed on their soil. But she further opined that
as several thousand foreign fighters have joined the ranks of ISIS in the past
months alone, including significant numbers of State Party nationals from,
inter alia, Tunisia, Jordan, France, the United Kingdom, Germany, Belgium, the
Netherlands and Australia and some of them have also been involved in
commission of crimes against humanity and war crimes, and so under the Rome
Statute, the ICC may nevertheless exercise personal jurisdiction over alleged
perpetrators who are nationals of a State Party, even where territorial
jurisdiction is absent, but the problem over exercising personal jurisdiction is that ISIS is primarily led by
Iraq and Syrian citizens and as the prospects of ICC is to investigate and
prosecute those most responsible, within the leadership of ISIS, and so she
concluded that jurisdictional basis for opening a preliminary examination into
this situation is too narrow. So, conferring the jurisdiction on ICC by either
non-party states or by United Nations Security Council is the only option which
will allow ICC to open investigation against ISIS.10

The statement
of prosecutor seems to encompass the issues and dilemma which the International
Criminal Court face in prosecution of ISIS. The major problems which ICC is facing over prosecution of ISIS
leaders are jurisdictional issues, issues regarding principles of nationality,
limitation over subject matter jurisdiction, problem in capturing the ISIS
leaders, practical considerations regarding referral from UNSC, lack of support
in investigations by Syrian government.

Firstly, the biggest problem which ICC is facing over
prosecution of ISIS is jurisdictional
issues. As mentioned above that ICC does
not have any original jurisdiction over countries which are not part of
Rome Statue, and in ISIS’s case since neither Iraq nor Syria are parties to the
Rome Statute, the Court cannot on its own legitimately commence an
investigation into the group’s alleged crimes and as mentioned above even the
personal jurisdiction over members of ISIS joining over from European countries
is too narrow to start an investigation.11
Apart from proprio motu investigation, ICC can also assume jurisdiction if the
respective state itself asks the court to take cognizance of the matter, but
that also doesn’t seem to be happening with Assad
at the helm of Syria, as his government has also committed war crimes due
to which many civilians have died. Because Syria is not a state party to the
Rome statute (which established the ICC), the court can also obtain
jurisdiction to investigate if the referral
of ISIS and Syria case is endorsed by all five members of the Security Council.
But such a referral will be tricky. For one thing, it requires the support of
permanent council members Russia and China, who, while not fans of ISIS, are
also not fans of violating national sovereignty in the name of human rights. 12Though
Russia and China went along with the referral of Libya to the ICC in 2011, but
after what they see as a disastrous NATO military intervention there, it will
be a tougher sell this time around. And though in 2016 the council’s attempts
to refer Syria to the ICC have been met with public support by a significant
portion of its members, and by Navi Pillay, the U.N.’s high commissioner for
Human Rights. But similar referrals have been continuously blocked by Assad
allies Russia and China, and so there is not even remote possibility that ICC
will be able to assume jurisdiction in Syria through the UNSC referral.13 

Even if it is assumed that International Criminal
Court will start investigation and prosecution of ISIS by assuming the personal
jurisdiction but still it will not serve the justice. For once all the leaders of ISIS belongs to Syria and
Iraq, over whom ICC doesn’t have personal jurisdiction and thus prosecution
of small fringe elements neither would send a clear message nor it will hamper
ISIS. Secondly, ICC believes in the principle that “The Court will not be able to bring to justice every person
suspected of committing crimes of concern to the international community. The
prosecutorial policy of the Office of the Prosecutor is to focus its
investigations and prosecutions on those who, having regard to the evidence
gathered, bear the greatest responsibility for such crimes”14
and as mentioned above leaders of ISIS are from Syria and Iraq, over whom
ICC doesn’t have jurisdiction, so prosecuting only the fringe small elements
will violate this for mentioned principle and prosecutorial policy of ICC.

Another important hurdle in ICC’s way to prosecute
ISIS is in establishment of identity of
ISIS and the limitations on subject matter jurisdiction. Before starting
the investigations against ISIS, it is for ICC to establish the identity of
ISIS. So, to procced with investigation the prosecutor must establish before
ICC that whether ISIS is to be considered as terrorist organisation,
transnational belligerence, or state.

And there lies the hurdle as there is no established universal definitional of
terrorists or terrorism because many nations affected by terrorism have
vastly divergent definitions of terrorism and some do not make attacks against
civilians central to their crimes. This is no different from an international
legal perspective.15
For example, the Rome Statute of the International Criminal Court (ICC) seeks
to place terrorism as a species of a larger “crime against humanity”
rather than criminalize it outright, and as there is no stated universal
definition of terrorism, it is not possible for ICC to define ISIS in terms of
terrorist organization. And as terrorism has not been directly recognised in
Rome Statue, acquiring the subject matter jurisdiction is also little tough,
though ISIS activities have been classified as genocide and crime against
humanity, but a direct classification as terrorism would have granted more
authority to ICC16

Even the definitions of transnational belligerence do not seem to cover ISIS. A
Non-International Armed Conflict (NIAC) is interpreted though the wording of
Common Article 3 of the 1949 Geneva Conventions and the law relating to
International Armed Conflict17
is covered in Protocol Additional to the Geneva Conventions (II) and Relating to the Protection of Victims of
International Armed Conflicts18,
but both the above mentioned provisions’ definitions fall short in the
transnational belligerency context because the above mentioned provisions were
designed to address cases of internal rebellion by guerillas, not by
transnational terrorist organizations such as ISIS.19

ISIS doesn’t seem to fit in the definition of state
also. International law recognizes that there are four prerequisite qualities
of statehood: territory, population, government, and recognition. The presence
of territory, population, and government are questions of fact. A prospective
State shows territory by examining the physical territory that the prospective
state claims. The population that a State claims is the population that resides
in the territory. If there is a segment of the population that organizes the
affairs of the rest of the population and deals with the governments of other
states, then a government exists as well. Arguably, neither Iraq nor Syria
retains territorial sovereignty in the areas controlled by ISIS since neither
State can exercise peaceful and effective control over the territories and
populations that ISIS controls. Likewise, ISIS cannot exercise peaceful and
effective control because ISIS only maintains dominion over its population and
territory by force. Since Iraq and Syria both lack peaceful and effective
control of the territory that ISIS controls, it is unlikely that either can or
would attempt to exert territorial jurisdiction over the offenses against
aliens that occur in ISIS’s territory. While ISIS holds itself out as a State
and Abu Bakr al-Baghdadi claims to be the caliph of a caliphate that should
command international personhood, but the reality is that ISIS falls far short of truly possessing legitimate Statehood.20

For prosecution and punishment of ISIS leaders, it is imperative to capture them, but as
of now it does not seem very possible because the US or Russian military are
far from capturing of leaders of ISIS. With such big army and weapons at their
helm, ISIS has been second to no terrorist organisation in terms of its power
and terror, and without capturing of ISIS leaders, justice would not be served.21
Another hurdle in prosecution of ISIS is lack of support from Syria in
investigation, as mentioned earlier the Syrian Govt. itself has been accused of
war crimes, there seems so possibility that they will help the ICC in
investigation against ISIS, because for them it might end as equivalent to
submitting evidence against itself to ICC.

Though it seems that there are various hurdles in front
of ICC in prosecution of ISIS, but there are many who believes that ICC and the
prosecutor are hiding behind the veil of lack of jurisdiction to hide their
competence to take action against ISIS, but through above analysis it doesn’t
seems like so.



State of Iraq and Syria is one of the most unprecedented and treacherous enemy
of the world peace, they have killed
hundreds of thousands of people, committed genocide against Yazidis, bombed
various nations; but still has International Justice mechanisms has failed to
bring them to justice. Through the above analysis, it can be submitted that
lack of jurisdiction, no-consensus for defining terrorism, issues regarding
principles of identity, and lack of support from Syria has prevented the ICC to
start investigation for prosecution of ISIS. To combat ISIS, solidarity and
unity amongst world’s powerful countries is imperative, but in such times Syria
has rather became battleground for world’s two most powerful countries, i.e.
Russia and United States. The lack of
competence and jurisdiction of international authority such as ICC is a matter
of concern, and as only 71 countries have signed Rome Statue, the original
jurisdiction of ICC is very limited, and due to political considerations
referrals from UNSC are not easy. The history and prosecution rate of ICC is an
evidence of lack of authority of such an important international institution.
The need of the hour is to get more and more countries to sign Rome Statue, and
to persuade them it shall be assured that the interference by ICC in their
sovereignty will be limited.

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