The successive brutal massacres by ISIS (Islamic State in Iraq and al-Sham) represented a “rule of terror”, varying from beheadings, slaughtering, and abduction, to systematic killings, driven by their declared goal to establish their version of the Islamic Caliphate. ISIS’s goal is to control all Muslim states, as well as extending to all non-Muslim ones, which it aims to reach through applying terrorist, inhumane methods. This leaves no doubt that ISIS’s existence and acts are real threats to the international peace and security. This blog post analyzes whether members of ISIS can be prosecuted before the International Criminal Court (ICC).
Generally, terrorism is interpreted within the context of violence with the intention to “create a climate of fear” in order to achieve political goals. Failure to tackle terrorism in domestic legislation efficiently and comprehensively may indicate a general inability or a political unwillingness on the part of the concerned state. This raises the debate of the complementarity role of the ICC. The controversies between the pros and cons of adding the crime of terrorism in the Rome Statute are based on the lack of a comprehensive definition of terrorism. Unlike other international crimes, which fall under customary international law, there is no consensus between jurists on a definition of terrorism, based on the risk of over or under inclusiveness or over exclusiveness.
Although the lack of a comprehensive definition hinders adding terrorism as a distinct crime under the ICC’s jurisdiction, some terrorist attacks may be characterized as either crimes against humanity or war crimes. However, although two examples of war crimes (namely ‘taking hostages’ and ‘systematic attack against civilians’) match terrorist attacks, war crimes require the existence of an armed conflict -whether of an international or non-intentional character- which excludes terrorist attacks that occur outside the context of armed conflicts.
On the other hand, the absence of wartime conditionality in crimes against humanity makes it possible to encompass terrorism, if it is committed in a wide-spread systematic way. Although Art (7) of the Rome Statute includes crimes against humanity committed by non-state actors such as terrorist militias, it excludes some terrorist attacks which do not fall under the criteria of Art (7), for example burning alive the Jordanian fighter pilot Maaz al-Kassasbeh which lacks the civil status conditionality of the victims according to Art (7) of the Rome Statute. These types of acts still aim at terrifying a population or coercing a government in conformity with the criteria set by The International Convention for the Suppression of Terrorist Bombings, adopted by the GA. Res. 52/164.
The crimes committed by ISIS are “tailor-made for ICC intervention”. According to the Pre-Trial chamber of the ICC, the criteria for investigating crimes against humanity are: – there must be a systematic attack against civilians, and the perpetrator must have “the capability to perform acts which infringe on basic human values”, hierarchy, the control of territory, and financial support.
Basing on the previous point, the number of atrocities committed by ISIS between 2013 and 2015 and its systematic tactics, including the brutal and systematic killings and abductions of members of religious and ethnic minorities such as Yazidis in a number of different states including Libya, Iraq, and Syria, destruction of archaeological sites, the beheading of soldiers and journalists in Syria and Iraq as well as civilians in Libya shows that it meets the requirements set by the ICC for categorizing actions as a ‘crimes against humanity.’ In addition, the geographical distribution of the territory it controls in Syria, Iraq and Libya shows the depth and extent of massive influence of the group.
Another limited possibility could be ISIS’s prosecution under the crime of aggression, which requires the aggressor to be a state. Although there is a debate about whether ISIS fulfills the requirements of being a state under The Montevideo Convention on the Rights and Duties of States in 1933, there is an incident by the SC Res 405 in 1977 when it considered non state actors as aggressors in case of mercenaries in the People’s Republic of Benin. However, the ICC Statute provision concerning the crime of aggression will only come into effect starting 2017.
On the other hand, although the crimes committed by ISIS qualify as the subject matter of jurisdiction of the ICC under crimes against humanity, the ICC cannot -in principle- start an investigation into these atrocities because neither Iraq, Libya nor Syria have ratified the Rome Statue. This lack of ratification hinders the investigation process of ISIS. It is important to note that the Nigerian ratification enabled the ICC to pursue an investigation concerning the terrorist group Boko Haram and its attacks.
However, there are still two options for the ICC to prosecute ISIS which are; first the public prosecutor’s authority to start an investigation on the situation under article (15). However, this is still limited to the territorial and personal basis of jurisdiction of the court. In this case, considering that the territorial aspect is not available (because the states where the crimes are being committed did not ratify the ICC), there are many members of ISIS (about 3000) that hold citizenship of a European state which ratified the Rome Statute thus triggering the jurisdiction of the court. Although the most important are the leaders of the group rather than the minor members and that such investigation is not sufficient to deter the group, but at least this will weaken its forces and take a step toward combating the group internationally.
The second alternative is referral from the United Nations Security Council, which affirmed in its previous resolutions 1368 (2001), 1373 (2001), and 1566 (2004) that terrorism is considered a threat to international peace and security and recently Res 2170 (2014)which strongly condemned the acts of ISIS.The feasibility of this alternative depends on the political interests of the five permanent members of the Security Council and their political cost-benefit calculations which allowed a referral of the case in Libya in 2011 under SC Res 1970 and hindered a counterpart resolution on Syria despite the similar brutal circumstances. Such a referral would potentially cover all crimes committed within Syria in the context of the civil war in which ISIS is currently engaged.
To sum up, the broad variety of acts which could be labeled as terrorist acts still impede the drafting of a comprehensive definition of terrorism. As a result it cannot be included as one of the international crimes in the Rome Statute. However, the necessity for finding common characteristics between some terrorist attacks, crimes against humanity, and war crimes provides an opportunity for including the terrorist attacks. A case in point is the ISIS terrorist attacks in Iraq, Syria, and Libya which meet the requirements of ‘crimes against humanity’ according to the Rome Statute. Therefore, the two viable options for ICC’s prosecution of ISIS which are a referral from the UN Security Council or the public prosecutor’s starting of an investigation of the crimes committed by ISIS’s perpetrators who hold a citizenship of a state which has ratified the ICC’s Rome Statute.