v NTRODUCTIONIslamic Stateof Iraq and Syria, infamously knownas ISIS is the biggest threat tohumanity and world peace in modern times, on the other hand it is incumbentupon United Nation Security Council, International Court of Justice, and International Criminal Court to maintainworld security and peace. And for maintenance of peace and security it isimperative for United Nation Security Council and International Criminal Courtto bring ISIS to justice.
This paper will elucidate the dilemma which International Criminal Court faces in exercisingjurisdiction over ISIS and establishing identity of ISIS. This paper willalso throw some light upon the practical consideration which InternationalCriminal Court is facing over prosecution of ISIS.ISIS is the deadliest terrorist organization operatingtoday and the greatest threat to world peace, amassing more fighters, morefunding, and more territory than any other terrorist movement.1The Islamic State’s fanaticism and disciplined organization is similar to theKhmer Rouge in Cambodia and the Nazi Regime. On top of employing tactics of intimidationand public punishment, ISIS aims to exterminate entire categories of people. Thegroup’s unparalleled ability to transmit its message, control hundreds ofsquare miles in Northern Syria and Northern Iraq, and impose harsh Shari’a lawsets the terrorists apart from Al-Qaeda. 2ISISbegan as a fledgling group in United States military jails following the Iraqwar where Al-Baghdadi himself spent considerable time.
It came onto the worldstage in June 2014 when itoverwhelmed ill-equipped American-trained Iraqi forces and took over Mosul,Iraq’s second largest city. Since its ascendency, the group has been responsiblefor killing and uprooting thousands of Yazidis(a small Christian sect) and Shi’a Muslims. Additionally, it has persecutedgays and lesbians and used Islamic Law to justify its rape of captured women.4The group consists of an unusual coupling of forces including: i) Religiousextremists recruited from the Arab world and Europe, many of whom have previouscriminal backgrounds; and ii) Ex-Ba’ath military and political officials. Ithas committed its atrocities with relative impunity, posting videos of gruesomekillings online and documenting its reign of terror in print media and on theInternet.3ISIS, the synonym of terror has been trying to capture territory in Syria, anddue to the war between ISIS and the Syrian govt. more than 4,00,000 people havelost their lives since 2011, and still ISIS has not been prosecuted.
Part ofthe reason the world community has been unable to punish ISIS officials andhinder its efforts is that there does not exist any legal mechanism by which toarrest and prosecute ISIS members. Therefore, the real issue is whether theinternational legal system is prepared to stop this large-scale suffering andworldwide threat.4In 1998, the international community came together andcreated framework for the ICC with the purpose of ending “impunity for theperpetrators of ‘atrocities that deeply shock the conscience of humanity. International Criminal Court (“ICC”,the “Court”) headquartered at Hague, which currently stands as the onepermanent international legal institution endowed with the ability to prosecutefor individual criminal liability. Its governing document, The Rome Statute,seeks to assert jurisdiction over persons committing “the most serious crimesof international concern.”5The Court receives cases through one ofthree mechanisms: i) when a State that has signed onto the Rome Statute refersa situation where there is a reasonable basis to believe one or more crimeswithin the Court’s jurisdiction have occurred; ii) the United Nations SecurityCouncil, acting under its Chapter VII powers, refers a situation to the Court;and iii) the Court’s Prosecutor decides on her own to initiate aninvestigation—proprio motu.6The prosecutorial process proceeds through a preliminary examination phasewhere the Prosecutor considers a wide range of evidence to determine whetherthere is a reasonable basis to proceed to a formal investigation.
7If the situation is commenced proprio motu the Prosecutor will need thePre-Trial Chamber’s authorization to commence an investigation Irrespective ofthe referral method, the Rome Statute pronounces jurisdictional limits wherebyonly 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 committedon the territory of a State Party or by the national of a State Party can beinvestigated and eventually prosecuted. 8Anyparty to the Rome Statute of the ICC (“Rome Statute”) accepts thejurisdiction of the ICC but there are limits on the ICC’s jurisdiction. The ICCexercises complementary jurisdiction in which the ICC’s jurisdiction issecondary to the state’s domestic courts. Under complementary jurisdiction, theICC must defer to the state’s judicial system unless that system is unwillingor unable to genuinely investigate or prosecute a crime that would otherwise beunder the ICC’s jurisdiction.
The ICC serves to bring perpetrators of internationalcrimes to justice, a notion that once seemed unimaginable on an internationalscale. However, despite immenseadvances, the international community struggles to suppress self-initiatingterrorist organizations like ISIS.9v DILEMMA AND HURDLES IN PROSECUTION OF ISIS BY ICC: As mentioned above, the ICC was established with apurpose to prosecute the crimes which shock the conscience of humanity, stillthe same institution seems to be failing in prosecution of world’s deadliestorganisation. As the ICC prosecutor FatouBensouda while accepting that ISIS has allegedly committed Internationalcrimes she stated that indeed the atrocities committed by ISIS does constitute serious crimes of concern tothe international community and threaten the peace, security and well-beingof the region, and the world. They also occur in the context of other crimesallegedly committed by other warring factions in Syria and Iraq. But stillafter accepting that indeed the alleged crimes committed by ISIS does amount tointernational crimes, she further stated that as Syria and Iraq are not Partiesto the Rome Statute, the foundingtreaty of the International Criminal Court and so the Court has no territorialjurisdiction over crimes committed on their soil.
But she further opined thatas several thousand foreign fighters have joined the ranks of ISIS in the pastmonths alone, including significant numbers of State Party nationals from,inter alia, Tunisia, Jordan, France, the United Kingdom, Germany, Belgium, theNetherlands and Australia and some of them have also been involved incommission of crimes against humanity and war crimes, and so under the RomeStatute, the ICC may nevertheless exercise personal jurisdiction over allegedperpetrators who are nationals of a State Party, even where territorialjurisdiction is absent, but the problem over exercising personal jurisdiction is that ISIS is primarily led byIraq and Syrian citizens and as the prospects of ICC is to investigate andprosecute those most responsible, within the leadership of ISIS, and so sheconcluded that jurisdictional basis for opening a preliminary examination intothis situation is too narrow. So, conferring the jurisdiction on ICC by eithernon-party states or by United Nations Security Council is the only option whichwill allow ICC to open investigation against ISIS.10The statementof prosecutor seems to encompass the issues and dilemma which the InternationalCriminal Court face in prosecution of ISIS. The major problems which ICC is facing over prosecution of ISISleaders are jurisdictional issues, issues regarding principles of nationality,limitation over subject matter jurisdiction, problem in capturing the ISISleaders, practical considerations regarding referral from UNSC, lack of supportin investigations by Syrian government. Firstly, the biggest problem which ICC is facing overprosecution of ISIS is jurisdictionalissues. As mentioned above that ICC doesnot have any original jurisdiction over countries which are not part ofRome Statue, and in ISIS’s case since neither Iraq nor Syria are parties to theRome Statute, the Court cannot on its own legitimately commence aninvestigation into the group’s alleged crimes and as mentioned above even thepersonal jurisdiction over members of ISIS joining over from European countriesis too narrow to start an investigation.
11Apart from proprio motu investigation, ICC can also assume jurisdiction if therespective state itself asks the court to take cognizance of the matter, butthat also doesn’t seem to be happening with Assadat the helm of Syria, as his government has also committed war crimes dueto which many civilians have died. Because Syria is not a state party to theRome statute (which established the ICC), the court can also obtainjurisdiction to investigate if the referralof 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 ofpermanent council members Russia and China, who, while not fans of ISIS, arealso not fans of violating national sovereignty in the name of human rights. 12ThoughRussia and China went along with the referral of Libya to the ICC in 2011, butafter what they see as a disastrous NATO military intervention there, it willbe a tougher sell this time around.
And though in 2016 the council’s attemptsto refer Syria to the ICC have been met with public support by a significantportion of its members, and by Navi Pillay, the U.N.’s high commissioner forHuman Rights. But similar referrals have been continuously blocked by Assadallies Russia and China, and so there is not even remote possibility that ICCwill be able to assume jurisdiction in Syria through the UNSC referral.
13 Even if it is assumed that International CriminalCourt will start investigation and prosecution of ISIS by assuming the personaljurisdiction but still it will not serve the justice. For once all the leaders of ISIS belongs to Syria andIraq, over whom ICC doesn’t have personal jurisdiction and thus prosecutionof small fringe elements neither would send a clear message nor it will hamperISIS. Secondly, ICC believes in the principle that “The Court will not be able to bring to justice every personsuspected of committing crimes of concern to the international community.
Theprosecutorial policy of the Office of the Prosecutor is to focus itsinvestigations and prosecutions on those who, having regard to the evidencegathered, bear the greatest responsibility for such crimes”14and as mentioned above leaders of ISIS are from Syria and Iraq, over whomICC doesn’t have jurisdiction, so prosecuting only the fringe small elementswill violate this for mentioned principle and prosecutorial policy of ICC. Another important hurdle in ICC’s way to prosecuteISIS is in establishment of identity ofISIS and the limitations on subject matter jurisdiction. Before startingthe investigations against ISIS, it is for ICC to establish the identity ofISIS. So, to procced with investigation the prosecutor must establish beforeICC 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 ofterrorists or terrorism because many nations affected by terrorism havevastly divergent definitions of terrorism and some do not make attacks againstcivilians central to their crimes.
This is no different from an internationallegal perspective.15For example, the Rome Statute of the International Criminal Court (ICC) seeksto place terrorism as a species of a larger “crime against humanity”rather than criminalize it outright, and as there is no stated universaldefinition of terrorism, it is not possible for ICC to define ISIS in terms ofterrorist organization. And as terrorism has not been directly recognised inRome Statue, acquiring the subject matter jurisdiction is also little tough,though ISIS activities have been classified as genocide and crime againsthumanity, but a direct classification as terrorism would have granted moreauthority to ICC16 Even the definitions of transnational belligerence do not seem to cover ISIS.
ANon-International Armed Conflict (NIAC) is interpreted though the wording ofCommon Article 3 of the 1949 Geneva Conventions and the law relating toInternational Armed Conflict17is covered in Protocol Additional to the Geneva Conventions (II) and Relating to the Protection of Victims ofInternational Armed Conflicts18,but both the above mentioned provisions’ definitions fall short in thetransnational belligerency context because the above mentioned provisions weredesigned to address cases of internal rebellion by guerillas, not bytransnational terrorist organizations such as ISIS.19ISIS doesn’t seem to fit in the definition of statealso. International law recognizes that there are four prerequisite qualitiesof statehood: territory, population, government, and recognition. The presenceof territory, population, and government are questions of fact. A prospectiveState shows territory by examining the physical territory that the prospectivestate claims. The population that a State claims is the population that residesin the territory.
If there is a segment of the population that organizes theaffairs of the rest of the population and deals with the governments of otherstates, then a government exists as well. Arguably, neither Iraq nor Syriaretains territorial sovereignty in the areas controlled by ISIS since neitherState can exercise peaceful and effective control over the territories andpopulations that ISIS controls. Likewise, ISIS cannot exercise peaceful andeffective control because ISIS only maintains dominion over its population andterritory by force. Since Iraq and Syria both lack peaceful and effectivecontrol of the territory that ISIS controls, it is unlikely that either can orwould attempt to exert territorial jurisdiction over the offenses againstaliens that occur in ISIS’s territory. While ISIS holds itself out as a Stateand Abu Bakr al-Baghdadi claims to be the caliph of a caliphate that shouldcommand international personhood, but the reality is that ISIS falls far short of truly possessing legitimate Statehood.20For prosecution and punishment of ISIS leaders, it is imperative to capture them, but asof now it does not seem very possible because the US or Russian military arefar from capturing of leaders of ISIS. With such big army and weapons at theirhelm, ISIS has been second to no terrorist organisation in terms of its powerand terror, and without capturing of ISIS leaders, justice would not be served.21Another hurdle in prosecution of ISIS is lack of support from Syria ininvestigation, as mentioned earlier the Syrian Govt.
itself has been accused ofwar crimes, there seems so possibility that they will help the ICC ininvestigation against ISIS, because for them it might end as equivalent tosubmitting evidence against itself to ICC. Though it seems that there are various hurdles in frontof ICC in prosecution of ISIS, but there are many who believes that ICC and theprosecutor are hiding behind the veil of lack of jurisdiction to hide theircompetence to take action against ISIS, but through above analysis it doesn’tseems like so. v CONCLUSIONIslamicState of Iraq and Syria is one of the most unprecedented and treacherous enemyof the world peace, they have killedhundreds of thousands of people, committed genocide against Yazidis, bombedvarious nations; but still has International Justice mechanisms has failed tobring them to justice.
Through the above analysis, it can be submitted thatlack of jurisdiction, no-consensus for defining terrorism, issues regardingprinciples of identity, and lack of support from Syria has prevented the ICC tostart investigation for prosecution of ISIS. To combat ISIS, solidarity andunity amongst world’s powerful countries is imperative, but in such times Syriahas rather became battleground for world’s two most powerful countries, i.e.Russia and United States. The lack ofcompetence and jurisdiction of international authority such as ICC is a matterof concern, and as only 71 countries have signed Rome Statue, the originaljurisdiction of ICC is very limited, and due to political considerationsreferrals from UNSC are not easy. The history and prosecution rate of ICC is anevidence 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, andto persuade them it shall be assured that the interference by ICC in theirsovereignty will be limited.