Introduction
The growing movement of extremist ideology displayed by the Islamic State of Iraq and Syria (ISIS) has presented international law, and international criminal law, with a new unprecedented challenge: given the severity of their crimes, who holds them accountable? What jurisdiction should be upheld? Who do they prosecute? It is widely perceived that whilst there is an absence of domestic prosecutions, the International Criminal Court (ICC) is perhaps the only body legally able to fulfil the role of accountability. However, whilst it would be easy to say yes, the ICC can investigate the alleged international crimes by ISIS, one must take into consideration the factors that will hinder the ICC’s involvement; such issues the ICC will encounter are: (i) jurisdiction (ii) alleged crimes (iii) liability. The case studies this essay will employ are as follows: given the limitations set out by the Rome Statute, there is debate over which crimes can be prosecuted (jurisdiction); focusing on one specific crime rather than a collection of crimes of varying nature would provide the ICC with a valid case – by focusing on terrorism given then lack of criminalisation thereof in the Rome Statute (alleged crimes); established organisation characterised by internal hierarchy and structure means that the ICC could investigate and isolate participants, ensuring they are held to account – this will address the function of liability which is addressed by the Rome Statute (liability).
The ICC
The main purpose of the International Criminal Court (ICC) is laid out by the Rome Statute. The treaties first and foremost role is to prevent the most serious crimes of concern to the international community, and in the event that crimes are committed they must not go unpunished. The ICC is an institution that responds to the most severe crimes, such as: crimes against humanity, genocide, war crimes and crimes of aggression (Rome Statute, Art. 5). The function of the ICC is to act as a deterrent by upholding accountability and punishments (Corrie, 2016, p.285, 302). But this role of facilitating the execution of the law begs the question: who can the ICC prosecute? Since its establishment, the ICC has focused its attention towards prosecuting both military and political figures from an array of State Parties (Corrie, 2016, p.285, 302) (Akhavan, 2001, p.30). It also brings the debate that in recent decades, war has not been restricted to state v. state. We have witnessed the emergence of extremist organisations, such as ISIS, who have committed many of the crimes that the ICC prosecutes. Thus, the question of if the ICC can indeed prosecute member of ISIS for their alleged crimes arises (Blick, 2018, p.1).
Legal Framework
Article 7:
It is important to establish the required criteria for a crime to be considered a crime against humanity. To first be considered, the crime in question must fall under the detailed crimes witnessed in Article 7 of the Rome Statute (Rome Statute, Art. 7). To further clarify this point, one crime is considered to be a “widespread or systematic attack directed against any civilian population” (Rome Statute, Art. 7). Further to this, Section 2 (a) of Article 7 provides the ICC with a clear definition of an “attack”, adding that a “course of conduct involving the multiple commissions of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organisational policy to commit such attack” (Rome Statute, Art. 7 (a(2)). This subsection of Article 7 makes the provisions for the ICC to build a case against any “State or organizational policy” (Jalloh 2013, p.318). Thus, the question can be phrased as ‘does the ICC have jurisdiction over an organisation such as ISIS?’
Article 7, section 2.A
It would be reasonable to conclude that ISIS falls under Article 7 Section 2.A as an organisation, for the structure of ISIS resembles that of an organisation, as well as the acts committed by ISIS could be perceived as “pursuant to or in furtherance of” furthering their own agenda by expanding on an extremist ideology (Rome Statute Art. 7 (a(2)).
Together, the Rome Statute and several of the Pre-Trial Chambers of the ICC justify the prosecution of organisations like ISIS, for their multitude of crimes against humanity. This action being justified by the International Law Commission (ILC), who, in the drafting stage of the Rome Statute clearly stated that: “[t]he instigation or direction of a Government or any organization or group, which may or may not be affiliated with the Government, gives the act its great dimension and make it a crime against humanity…” (Jalloh 2013, p.408). Rather than focusing on the formality of the level to which an organisation operates, one Pre-Trail Chamber added that its characteristics would not be a defining condition (ICC, 2010, p.90). Moreover, this made clear that organisations in the eyes of the law are to be considered separate to the State and can indeed be prosecuted by the ICC for any and all crimes that are considered acts of crimes against humanity (ICC, 2010, p.92).
In light of the above conclusion that an organisation separate to the State can be prosecuted, the Pre-Trial Chamber of the ICC clarified the pre-conditions to be used in determining whether a group would, or would not, qualify as an organisation for the sole purpose of being applicable to the Statute. The provisions for these criteria were outlined in six points. They are the following:
– “Whether the groups are under a responsible command, or has an established hierarchy”;
– “Whether the group means to carry out a widespread or systematic attack against a civilian population”;
– “Whether the group exercises control over part of the territory of a State”;
– “Whether the group articulates, explicitly or implicitly, an intention to attack a civilian population”;
– “Whether the group is part of a larger group, which fulfils some or all of the abovementioned criteria” (ICC, 2010, p.93)
Of course, an organisation must fall under the majority of these six points for the Statute to be applicable in Court. In relation to ISIS, five of the six listed points can be considered relevant. To-date, ISIS maintains an established hierarchy with a chain of command in place). The organisation has demonstrated on different occasions that it possesses the means to carry out a widespread and systematic attack, having previously done this on both State targets and civilian populations (Jalloh, 2013, p.381). Additionally, ISIS retains control over State territories, posing a threat to the life of that nation.
Article 8
The Geneva Convention IV foresaw terrorism as an increasing threat to the peace in society, prohibiting ‘terrorism’ and building on its definition through Article 51 (2) of Protocol I and Article 4(2) and 12(2) of Protocol I and II (287 1950). The most important provision for defining terrorism came in Protocol I and II: ‘a civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited’. Setting precedent for following customary law, the International Criminal Tribunal for Yugoslavia (ICTY) stated that whilst the provisions for terrorism as a crime where absent from the Courts (Rome) Statute the act of ‘terrorising a civilian population’; thus, this act should be considered a war crime under customary international law, which would mean it as enforceable by the Court as part of the ICTY trials.
Whilst the ICC is not party to the Geneva Convention, and precedent is not binding, the Court may direct a case on the grounds of terrorism to Article 8 of the Statute. This article specifically outlines that any attack intentionally directed towards a civilian/s is strictly forbidden in the eyes of the Court (Rome Statute, Art. 8 (2) (a)). Accordingly, the crime of terrorism could be prosecuted by the ICC under Article 8 as an international crime that targeted at unknowing civilians who were not associated with the group/organisation prior to the attack. Prosecution under Article 8 would be irrespective of the type of conflict i.e. armed conflicted defined as either non-international or international (Rome Statute, Art. 8 (2)(b)(i), Art. 8 (2)(e)(i)).
Article 12
The jurisdiction of the ICC is pursuant to its ‘competence de la competence’ bound by Article 12 of the Statute – the ICC may assert its jurisdiction where appropriate (Rome Statute, Art. 12). The wording of the subsections entails observes to the principle that a State reserves the right to excerpt plenary jurisdiction to hold its citizens to account within its own territorial boarders. In analysis of Article 12 subsection (a): states the Court has jurisdiction where ‘the conduct in question occurred’ within the territory of a State Party. Therefore, one may deduce that a crime committed in State A [non-State Party] of which the crimes consequences occur in State B [State Party] would provide the ICC with territorial jurisdiction over the Crime through State B’s involvement. Additionally, Article 12 (a) gives the Court permission to address jurisdictional loopholes (Rome Statute, Art. 12 (a)).
Facts of the Case
ISIS is a unique issue challenging international criminal law, for it is not a non-state party maintaining its presence by carrying out contained periodic attacks. Rather, ISIS has challenged the sovereignty of States by using force to take and hold State-territory through sustained levels of violence. The widely accepted main goal of ISIS is to establish a caliphate in Iraq and Syria. To this, hundreds, if not thousands, of foreign fighters have left their Westernised lives and become ‘foreign fighters’ by means of radicalisation (UNSC, 2014). The challenge precedented to States now is that these foreign fighters have been called on by ISIS to deliver widespread systematic attacks in the name of their cause in North America, South-East Asia, Africa, and Europe. Because of the above, the United Nations Security Council has deemed the acts of terror committed by ISIS as a direct threat to both international peace and security (UNSC Resolution 2255, 2015).
Therefore, it would be correct to conclude that the crimes committed by ISIS (including: genocide, mass executions, sexual slavery, rape, child recruitment, mutilation, rape, torture, ethnic cleansing) would fundamentally constitute a transnational threat to which domestic jurisdiction can no longer hold the organisation to account (Amnesty International, 2014). Furthermore, given the known parameters of the atrocities committed by ISIS and level of impunity through lack of accountability, one would suggest that these crimes become a justifiable case of the ICC to become involved (Rastan, 2015, p.152).
Application of the Law: Jurisdiction
One must remember that the names states, Iraq and Syria, are not State Parties to the Rome Statute. Thus, for jurisdiction to be assessed, a security council reference to the Court must be made. This referral would be on the grounds of ‘foreign fighters’, who in the eyes of the law are State Party nationals. This would then facilitate the conditions to permit the ICC to assert jurisdiction; if a ‘foreign fighter’ commits an act on the territory of a State Party then the ICC maintains the right to prosecute this isolated crime with a broader series of crimes committed by said individual/organisation. In the case of ISIS, a suicide bomber in the United Kingdom committed an act of terror directed at a civilian population (Rome Statute, art. 7 (a(2)).
The crimes to which the ICC could seemingly investigate would appear to fall under Article 8 of the Statute. The crimes in question (ethnic cleansing, mutilation, rape, genocide) would formulate a breach of international law as the widespread systematic attacks were premeditated and intended to hurt civilians who were not party to ISIS. Because of this, the ICC could investigate crimes of terror through Articles 7 and 8. However, the Court would only be able to investigate these crimes on either of the following conditions: the State in which the alleged crimes were committed remains a party to the jurisdiction of the Court (Rome Statute, Art. 13); the State of the propitiator’s nationality is party to the jurisdiction of the Court; a situation referred to the Court by the United Nations Security Council (Rome Statute, Art. 12 (2)(a)). Therefore, the ICC can indeed investigate the alleged crimes committed by ISIS by following both the Rome Statute and customary international law, and in doing so, the Court may assert jurisdiction through Article 12. The recent London Bridge terror attack is an example of how the ICC could investigate ICC. Whilst ISIS largely remains in Non-State parties to the Court, the crime in question occurred within the territory of a State Party to the Court; thus, the Court would have territorial jurisdiction to launch its investigation.
Conclusion
To conclude, one would say that international law provides ample ground for the ICC to both investigate and prosecute those responsible for committing these crimes in the name of ISIS. Whilst jurisdiction has been an issue, there are multiple points of justification to be found within the Rome Statute. It would be unjust for the ICC to not fulfil its role of holding individuals to account if the Court withholds an investigation into the alleged crimes committed by ISIS.