Do ISIS Hostilities Against Yazidis in Iraq Constitute Crimes Against Humanity?

 

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Youssef Boudlal/Reuters

Ever since IS gained control over Sinjar mountains, a region in north-west  Iraq that is dominated by Yazidis in August 14, and the Yazidi minority group have been abducted in hundreds and possibly thousands. Non-Arab, non-Sunni Muslim minority groups in Iraq have been systemically targeted by fighters of the Islamic State (IS) armed group. Yazidi men were killed while others were forced to convert into Islam under threat of death.  Yazidi women and young girls have suffered from brutal treatment including rape, sexual violence; being held in captivity as well as incidents of torture and abuses. Girls as young as 12 have been separated from their relatives sold and gifted to IS fighters while others have been forced into marriages.  Those held in captivity by IS were held in various locations in Iraq and parts of Syria that are under the control of IS.

Torture, sexual violence, arbitrary deprivation of liberty, taking hostages,  forced marriages, rape, forcing persons to act against their religious beliefs constitutes war crimes and crimes against humanity that are both internationally prohibited and punishable. The systemic targeting of Yazidis and other minority groups in Iraq including the Turkmen, Shabak, and Shiite by IS fighters gives rise to hold IS fighters accountable for war crimes and crimes against humanity. The systemic targeting is no longer acts of hostilities conducted in armed conflict, but is clear effort to exterminate non-Sunni minority groups in Iraq and specifically in areas under the control of IS.

IS has exerted great efforts to publicize details about the atrocities they have conducted against soldiers and civilians. Through videos spread on social media in multiple languages, IS fighter instilled fear in anyone that comes in its path.  Kurdish Yazidis who lived in Sinjar fled in fear of the crimes IS could commit against Yazidi women and children. In matters of weeks, IS has carried out its plan to cleanse captured areas in northern Iraq from all non-Sunni minority groups forcing these groups to flee.

The International Convention of the Prevention and Punishment of the Crime of Genocide, defines genocide under article 2 as ” acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group”. The systemic attack to exterminate Yazidi sect in Iraq could be easily classified as genocide and not acts of hostilities. IS fighters have committed acts of massive killings, targeting men specifically. The armed group has caused serious bodily and mental harm to both Yazidis men and women. Females and especially young girls suffer from traumas while being held in captivities and after they escape. Their relatives have reported saying “they suffer from panic attacks and can’t leave them unattended”.  Some have tried to committing suicide when held in captivity while others have tried to end their lives even after reuniting with their families. The grandfather of a 16-year-old who escaped IS captivity after having been raped reported to Amnesty International describing his granddaughter saying: “she is very sad and quiet all the time. She does not smile anymore and seems not to care about anything. I worry that she may try to kill herself; I don’t let her out of my sight”.

The armed group has forcibly separated families, displacing many and causing others to be stranded in the mounts of Sinjar after fleeing their villages. Somewhat between 10,000 – 40,000 Yazidi civilians are trapped in the mountains that looked like a refuge at first, but soon turned to be graveyard for Yazidi children and elderlies. Some 147,000 civilians have safely reached semi-autonomous regions in Kurdistan that flood with refugee camps now.  The Yazidi sect accounts for no more than 600,000 across Iraq, a third of which is displaced in Kurdish lands and stranded in the mountains. Left to starve to death or die on the hands of IS fighter; the Yazidis face their fate of being exterminated. Vian Dakheel, a Yazidi parliamentarian from Sinjar has voiced her deep concern for the survival of her people in the parliament, urging the Iraqi government to act and save this minority group from being eradicated. “My people are being slaughtered….the religion is being erased from the face of this planet” said Vian in her speech before the Iraqi parliament.

The conduct of the IS constitutes grave breaches of International Humanitarian Law (IHL), that governs conducting hostilities. Civilians and anyone who is wounded or surrenders are protected under IHL against inhumane treatment. Women in particular should be protected against rape, enforced prosecution or any attack against their honor. Murder, torture, corporal punishment, reprisal, being held in captivity and liberty deprivation and other acts of hostilities committed against civilians are all acts prohibited under the Geneva Conventions specifically the fourth Convention on the Protection of Civilian Persons in Time of War.

Grave breaches of the Geneva Conventions committed by the IS fighters documented by Amnesty International and elsewhere arguably constitutes crimes against humanity as defined under article 7 of the International Criminal Court Roman Statute.  Acts of hostilities have been systemic, widespread and targeted civilian population. The major difference between crimes against humanity and war crimes is that crimes against humanity are systemic and widespread.  To further advance the argument, it could be said that acts of hostilities committed by IS fighter can account for genocide, as they are targeted towards a specific religious group with the intent to destroy the whole or part of the religious group. Forcing Yazidis to act against their religious beliefs, forcibly converting into Islam, depriving them from their liberty, taking them as hostages and abducting them for not converting to Sunni Islam are clear manifestation of IS’s intent to destroy the religion.

States and especially Iraq, has the responsibility of stopping the atrocities committed by IS fighters. Even though Iraq failed and continues to fails to prosecute IS fighters, it is an international responsibility to stop Yazidi suffering under erga omnes obligation to stop genocide.

 

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The evolution of the use of force norms within the Security Council

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During the past few decades, a notable development has occurred to the doctrine of the use of force within the UN Security Council (SC). Pursuant to the UN Charter and the collective security provisions, the UN security body – the Security Council (SC) – is entitled to authorize the use of force to member states for maintaining international peace and security. The UN Charter explicitly provides the SC with a mandate to maintain peace between states, not within them. However, the SC unanimously adopted a new doctrine commonly known as the “Responsibility to Protect” (R2P) by virtue of the SC Resolution 1674. In essence, the R2P doctrine empowers the SC to authorize the use of force in any state regardless of whether the government of such state has provided its consent or not. The institutionalization of such doctrine was however faced with resistance by many member states, especially those with a history of foreign intervention and contested territory. This short article highlights two main factors that contributed to the evolution of the use of force norms within the SC, namely, the desire of the SC to gain prominent social status and the role of the international community in pushing the SC to become more “empathetic and altruistic”.

The mandate of the SC in authorizing the use of force is specifically dedicated to maintain peace and security between states, and not within them. This rule was reiterated by China’s delegates to the International Commission on Intervention and State Sovereignty (ICISS):

“Nowhere in the UN Charter can one find a clause that permits using force, except for national defense under Article 51 and for restoring international peace, as specified in Chapter VII. Using force for moral or conceptual reasons is questionable and dangerous.” (emphasize added)

However, the scope of protection was extended through state’s unanimously voting in favor of Resolution 1674 – the resolution that adopted the R2P doctrine. As a result, the SC mandate was stretched to include “human protection” in the sense that states sovereignty also include military interventions in a country where its “national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.”

The endorsement of the R2P doctrine by the UN member states through unanimously accepting the adoption of Resolution 1674 shows that the R2P doctrine originated outside the circle of the SC. Importantly, the role of the empathetic international community in seeking to prevent “another Rwanda,” was much more obvious and influential than for individual states seeking to justify self-interested intervention. Hence, claims that R2P is “the return of the civilizing mission,” or was created as a “Trojan horse” for imperialism misunderstand the history of R2P.

There seem to be a relative normative convergence between the five permanent members of the SC (P5) regarding why to use force, despite the existence of a slight degree of divergence regarding how and when to use force. However, state practice, especially those of the P5, clearly shows violations to the international norms that they have adopted and that all seek the status of “responsible power.” This status seeking may not always override material self-interest, but it certainly plays a role in shaping international norms that operate in the collective interest and help facilitate collective-action.

The social influence and empathy of states is yet another element that had a direct impact on the evolution of the use of force norms. Although the pace and depth of such influence might not be as much as expected, it is evident that empathy remains an important factor in boosting the development of international security norms. As such, both empathy and social influence albeit insufficient, are necessary variables in explaining the evolution of use of force norms.

The Rwandan genocide case is an obvious example in the evolution of the UN use of force norms. Importantly, the role of key international players in spreading the devastating social impact of genocide in Rwanda influenced the work of the International Commission on Intervention and State Sovereignty (ICISS) – the Commission that had a leading role in the adoption of Resolution 1674. Also, the role of international human rights’ advocates in circulating stories of atrocities, massive human rights violations, and people sufferings to reach to a wider audience seems to have equitable effect in the evolution of the use of force norms. In other words, empathy and social influence dimensions are gaining more and more importance in the development of use of force norms function.

Moreover, the growing international expectation of the SC’s “responsibility to protect,” with or without the consent of governments is yet another significant development. The SC is, by virtue of its mandate, obliged to take action and intervene in domestic conflicts, even if such intervention violates state’s sovereignty. One of the issues that remain questionable is why did the SC intervene in the Libyan conflict and not in Syria. Apart from strategic or economic motives, a number of justifications were bolstered for the international military intervention in Libya, of which is the empathy for people suffering in Syria and the institutionalization of human rights norms posited in international law. It is worth mentioning that the social impact of human rights norms has a direct correlation on international security culture, and thus ordering international society. This backs our argument that emotion and social influence have a significant effect on international relations, and specifically the evolution of the SC’s authority to use force.

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Despite the fact that the expansion of the UN SC’s doctrine of R2P carries risks in as much as benefits, particularly in the expansion of the “circle of empathy,” the implementation of the R2P should not be taken for granted. It is not uncommon that the SC’s intervention could fail to materialize in every conflict, but the expectation for it to try, even at risk to its own members, remains significant. This narrative shows that the process of institutionalizing empathy and altruism have played a critical role in the decline of many oppressive and violent practices. Thus, although it may not seem likely at present, the adoption of R2P may be a watershed moment in history. Moreover, globalization in itself is likely to bring a more interconnected world that makes the sharing and spreading of emotions and human rights norms easier leading to a more peaceful world.

 

 

The War in Yemen and Death of the Moroccan Pilot During Operation “Decisive Storm”

On Sunday 10th May, one of the F-16s of the Moroccan Royal Armed Forces involved in the international coalition led by Saudi Arabia intervening in Yemen went missing. For the following days, both sides- the Houthi and the coalition searched into what happened to this missing plane.  The coalition concluded that the security and safety of the pilot is the Houthis’ responsibility. On Friday 15th May, the body of the pilot has been located and found dead and his body returned home later the same week. This incident highlights a broader question and issue in relation to current events in Yemen – whether the war in Yemen is an International Armed Conflict or Non-International Armed Conflict.

The historical background of the Yemeni situation is crucial to understanding the significance of this question. Yemen today is divided into a violent political struggle between two forces: the internationally recognized president Abd Rabbuh Mansour Hadi and his government and the Houthi militant forces, which pushed the president and his government from power and into exile and occupied the capital Sana’a. President Hadi announced his resignation and sent a letter of his resignation to the parliament stating that he could not continue in his office after the Houthis failed to honour a peace deal. Parliament has reportedly refused to accept the resignations.

These forces, few weeks later, dissolved the parliament and established what is called the revolutionary committee. Hadi had been under virtual house arrest in his residence in Sana’a for a month until he found a way to escape to Aden. Upon his arrival in Aden, Hadi withdrew his resignation and considered all the previous actions from the Houthi forces as a “coup d’état.”

On 25th of March, president Hadi asked the UN Security Council to authorize “willing countries that wish to help Yemen to provide immediate support for the legitimate authority by all means and measures to protect Yemen and deter the Houthi aggression,” and his Foreign Affairs Minister Riad Yassin requested military assistance from the Arab League based on the collective self-defense doctrine under the article of 51 of the UN charter.

Internationalizing the conflict

The following day after request, the Arab Coalition led by Saudi Arabia – backed with US strategic support – started launching airstrikes against Houthi bases in Yemen. The coalition insists on their right to respond to the requests and needs of president Hadi and to provide military assistance to the legitimate authority in Yemen. The intervention and the death of the Moroccan pilot raised the question of whether the Yemeni situation still is Non-International Armed Conflict or had it turned into an International Armed Conflict?

Bear in mind that all of the countries in the war including Yemen signed and ratified the four Geneva Conventions of 1949 and Additional Protocols I and II.

The situation in Yemen, before the coalition intervention, can be considered a civil war or Non-International Armed Conflict (NIAC) as per Common article 3 of the Geneva conventions and additional Protocol II.[3] Common article 3 establishes the minimum standards of the laws of war, which are to be applied in an armed conflict taking place within the boundaries of a state, like the war between the government and a rebel group or two rebel groups.  Common article 3 sets the minimum standards that each party in the conflict should be bound by during the conflict which focuses on treating non-combatants, the wounded and sick humanely and without any discrimination depending on race, color, religion or faith, sex, birth or wealth, or any other similar criteria. The other obligations under the four Geneva conventions are not applicable during this kind of conflict.

After the international coalition military intervention in the war, this protection is limited in comparison with the protection under the four Geneva conventions and additional protocols I and II, especially after the increase of the Yemeni civilians’ death. The international coalition intervention in Yemen changed the situation on the ground. Therefore, we should accept that the coalition intervention affected the Yemeni situation and turned it into an International Armed Conflict (IAC), where the Four Geneva Conventions and additional protocol I apply, especially between Houthi militias and the coalition forces. Despite  the fact that, the coalition intervened in the situation on behalf of the internationally recognized government, the effective control over the Yemeni territory remains in doubt as Houthi militias control the Capital, in addition to the massive amount of the death and injuries, this pushes us to consider the situation a International Armed Conflict, which would increase the need to protect civilians from the damaging results of the crisis and work towards the International Humanitarian Law principles.

The consideration of the Yemeni situation as a NIAC will put the international community in contradiction with the object and purpose of the four conventions because the Geneva Conventions were adopted to guarantee the protection of the civilians and military personnel who are no longer taking part in hostilities. The spirit of the provisions of the Conventions pushes us to adopt the four Conventions and to increase the protection for the Yemeni civilians, who are facing a humanitarian crisis because of the war. Indeed, if we cannot stop the existing war and the humanitarian crisis, we should at least increase the protection for the civilians and the military personnel and adopt the wide scope of the object and the purpose of the four Geneva Conventions. I’m advocating towards the implementation of the four Geneva Conventions and Additional protocols, as way to protect the nation from a full blown crisis.

http://mashable.com/2015/03/31/yemenis-say-enough-war/
IMAGE: HANI MOHAMMED/ASSOCIATED PRESS

Moreover, the fighters from the Houthi’s and the coalition should be considered combatants and if they are detained. In this case, the third Geneva Convention relative to the treatment of Prisoners of War (POW’s) should be adopted. I believe that the Yemeni situation is critical and has transformed from a Non-International Armed Conflict into an International Armed Conflict, where the four Geneva conventions should be applied along with their protections. Therefore given that the Yemen conflict has become an international armed conflict, the countries involved in the Saud-led coalition and the Houthi militias need to act according to International Humanitarian Law and respect the rules of law, particularly the protection of civilians and POW’s.

Nuclear Apocalypse is not Illegal ?!

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One of the great fears that face humanity nowadays is related to the question of whether our species is going to stand the test of time, or go extinct like many others. From the many versions of how our civilization is going to end, the greatest fear of all is self-destruction through the use of nuclear weapons. Nuclear apocalypse was and is still present in the imagination of our cultures. As a result of that, one would expect the international community to have a very firm view on the illegality of the use of such weapons of mass destruction. Surprisingly enough, the International Court of Justice in its advisory opinion on the threat or use of nuclear weapons was actually inconclusive. I am going to argue against this ambiguous opinion of the ICJ. I am going to clarify the reasons why the ICJ’s opinion should have been definitive on the illegality of the threat or use of nuclear weapons no matter what. Although this advisory opinion was in July 1996, I think we need to reemphasize the issue again. The reason for this is that we are living in a more insecure world. There is more Climate Change problems which are affecting the economies of many countries. Also there are more religious and political conflicts. All of this sets the world for more competition and more rivalry, which should make us wary of the danger of the existence of nuclear weapons.

According to the advisory opinion of the ICJ, the threat or use of nuclear weapons is generally contrary to the principles of the international law with the exception of the extreme cases of self defense. This is demonstrated in point (E) of the second clause of the dispositif;

It follows from the above-mentioned requirements that the threat
or use of nuclear weapons would generally be contrary to the rules
of international law applicable in armed conflict, and in particular
the principles and rules of humanitarian law;
However, in view of the current state of international law, and of
the elements of fact at its disposal, the Court cannot conclude
definitively whether the threat or use of nuclear weapons would be
lawful or unlawful in an extreme circumstance of self-defence, in
which the very survival of a State would be at stake

The controversy of the point of extreme case of self defense is clarified by the voting on this clause, as it was seven votes to seven by the president’s casting vote. This controversy one would expect from a political discussion not in an opinion of the ICJ. This point is the main direction of my critique, but there is also point (B) in the same clause in which the court states that;

There is in neither customary nor conventional international law
any comprehensive and universal prohibition of the threat or use
of nuclear weapons as such

From the court’s point of view the fact that nuclear weapons have grave effects on the environment does not conclude the total ban of their use in certain circumstances. It is because the environmental concerns can possibly  be tolerated if there exists the requisite military necessity. We can accept this if the effects of nuclear weapons are of limited effect and can be contained, but it is obvious that the effects of nuclear weapons cannot be controlled. These effects are of great and massive effects not preceded by any other type of weaponry. Thus their effects on the environment do not concern just the parties involved in the conflict; they involve the whole planet.

According to the ICRC, international humanitarian law bans the use of weapons which cause superfluous injuries or unnecessary suffering by their nature. Although IHL does not explicitly ban the threat or use of nuclear weapons, but the very nature of these weapons contradicts with the ban of superfluous or unnecessary suffering. The use of nuclear weapons also contradicts with the principles of protecting civilians in armed conflicts, as they do not discriminate in their destruction. This is because even if they are targeted in a way to only achieve military objectives, their effects such as radiation cannot be controlled. They might also violate the right of neutrality, as they might harm other states that are not party to the conflict.

As for the point of using nuclear weapons in self defense, it is known that any state in using its legitimate right of self defense has to follow the principles of necessity and proportionality. The ICJ does not clarify in its opinion the difference between the extreme case of self defense and the normal case. This is a new type of classification originated by the court. Perhaps the court meant to explain this by inserting the phrase ‘when the very survival of the state is at stake’, but even this is a very vague statement. It can be interpreted differently which contradicts with the purpose of the advisory opinion. May be what is meant is the case when the state is facing a nuclear attack. In that case, I do not see the reason for the probable legality for their use of nuclear weapons as a means of defense. Nuclear weapons by their nature can only be used for offense. If we assume that a state is being attacked by a nuclear weapon, how can it use a nuclear weapon to defend itself? It would be an act of reprisal that is not allowed by international law. The argument that an attacking state will learn that it will be equally damaged if it uses a nuclear weapon is not a good argument or else we can use it to justify any reprisal actions.

My critique can be wonderfully represented in the dissenting opinion of judge Weeramantry in which he states;

My considered opinion is that the use or threat of use of nuclear weapons
is illegal in any circumstances whatsoever. It violates the fundamental
principles of international law, and represents the very negation of the
humanitarian concerns which underlie the structure of humanitarian law. It offends conventional law and, in particular, the Geneva Gas Protocol of 1925, and Article 23 (a) of the Hague Regulations of 1907. It contradicts the fundamental principle of the dignity and worth of the human person on which all law depends. It endangers the human environment in a manner which threatens the entirety of life on the planet.

He is on the firm ground that the court should have settled the legal question in favor of banning the threat or use of nuclear weapons under any circumstances.

In conclusion, the topic in question clearly shows the indeterminacy of international law on the matter, which clearly shows the need for a direct global cooperation on the general ban on the threat or use of nuclear weapons under any circumstances. The use of such weapons is not of the concern of the individual wills of states, it is a matter of global importance and the political consideration should be put aside in such an issue that involves the survival of our species and our whole planet.

The legal framing of the Egyptian military intervention in Libya

I never thought I would be writing about an Egyptian military intervention into another country in my day and time, but the dramatic changes and developments in the armed conflict in Libya has posed the question of whether Egypt’s role in this situation was legal or not. At the same time, the question of which doctrine of the international law Egypt can use to justify the Airstrikes on Da’esh is raised – whether the self-defense and or protecting citizens abroad or assisting another state.

On 15 February 2015, a video was released showing images of 21 kidnapped Coptic Egyptians being killed by a militant group declaring their loyalty to ISIS or Da’esh. As a response to this video, which I don’t think is appropriate to share; the Egyptian president announced a week of mourning over the victims and called for an urgent meeting with the National Defense Council. A few hours after the meeting, Egyptian Air forces launched strikes against militant targets and fighters of ISIS in Derna, Libya.6120938-3x2-940x627

These air strikes open the question again about the legality of the Egyptian Military intervention inside the Libyan territory especially after the different statements from the President Sisi and the Foreign Affairs Minister in UN Security Council meeting.

The historic background of the Libyan situation is significant in this context. Libya today has divided into a violent political struggle between two major powers: the internationally recognized, Tabruk parliament and Tripoli’s parliament. The Islamist groups cooperated with Misrata’s forces to stage a counterattack in Tripoli and occupy the capital. This forced the newly elected parliament into exile to Tabruk to be under the protection of general Haftar.

Alongside with this political struggle and declining situation, in June 2014, the jihadist group Majilis Shura Shabab Al-Islam (the Islamic Youth Shura Council) in Derna announced its allegiance to the Islamic State in Iraq and Syria (ISIS). A few months later, the organized militant group in Egypt, Ansar Beit Al-Maqdis, which continually attacked the governmental buildings and military bases, also announced its allegiance to ISIS and changed its name into Wilayet Sinai or the Sinai State. This link between the groups increases the suspicion of cooperation between the two groups and increases military operations against the Egyptian government and Army.

The use of language

A few hours, after the president Abd El-Fatah El-Sisi’s speech on the killing of 21 Christian Egyptian in Derna by militant group loyal to ISIS, Egyptian Air forces launched strikes against militant targets and fighters of ISIS in Derna, Libya.

2015-635596428048984075-898The Egyptian citizens reacted to the video of the killings with significant anger and asked for revenge and reprisal attacks. During his speech president Sisi used the word “the right of response” to the killing of the Egyptians in Libya. Also, the ministry of Foreign affairs issued a statement after the airstrike stating that the airstrikes were under legitimate right of states of self-defense individually or collectively and its right to protect its citizens abroad. The linguistics used in both statements refers to framing the airstrikes towards the Egyptian citizens and protecting the citizens. The president statement directed to the citizens, and to settle down the anger of the citizens, but at the same time, statements like revenge or reprisal are not appropriate to be used in the international law context.

Therefore, framing the argument and defense of the attack through “the right of response” is to legitimate the illegitimate act.

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A few days later, the weakness of the doctrine of the right of response and the excuse of protecting of citizens abroad which had been used by the president and the ministry of foreign affairs was clear. The use of this doctrine in international law is rare and is not preferred. Therefore, during the UNSC urgent meeting in relation to the situation in Libya, the Foreign Affairs Minister instead commented on the Egyptian airstrike in Libya by using a different argument for the strikes, by stating “Egypt has decided to respond to the requests and needs of the Government of Libya and has provided military assistance”. The Foreign Affairs Minister’s statement framed the airstrikes as assisting the Libyan government in the war against terror after asking for help as part of consensual intervention, as the coordination and assistance of another country is not a violation against international law. Therefore, Egypt’s strikes over the Libyan territories were not in contradiction of the United Nations charter and customary international law. This new statement is directed to the international community, thus the language used must be the most appropriate to be accepted in doctrine and according to international law.

The word and framing used is important in international law and in strengthening the legitimacy of the Egyptian airstrikes in Libya. The justification of airstrikes based on the self-defense and/or protecting civilians abroad arguments or the right of response are weak in international law in comparison to the argument of the assistance of another country in the war against terrorism. The president used the phrase right of response to comment on the killing of Egyptians in Libya because he was directing the statement to Egyptian citizens while the Minister of Foreign Affairs could not use a weak legal argument in his speech to the international community justifying the airstrikes. Therefore, he used the argument of state requesting assistance of another state. The linguistics used by the president and foreign affairs minister differ because each one of them is talking to a different audience. Framing and language of law is just as important domestically as it is internationally.

Is the Principle of Negative Equality in Civil Wars Still Valid? An Analysis of “Decisive storm” Under the Law of Armed Conflict

http://www.bbc.com/news/world-middle-east-29293849
http://www.bbc.com/news/world-middle-east-29293849

Although the beginnings of the Arab Spring’s revolutions might seem similar, their evolutions are totally different; the Yemeni revolution is no exception. The situation in Yemen has recently evolved dramatically, leaving the state in a civil war. This leaves limited choices for the legitimate Yemeni president Hadi to seek foreign assistance. Based on the invitation by President Hadi, a Saudi Arabian-led coalition constituted of ten Arab states launched a military operation against the Houthi rebels known as “Decisive Storm”. Although the traditional “negative equality” doctrine of international law prohibits intervention in civil wars on either side of the parties, I argue in this post that there is no room for applying this principle in the Yemeni case for two reasons: first, I believe that the principle itself is no longer applicable in contemporary international law, second even if it is, the Yemeni case lacks the requirements for the application of this doctrine.

The principle of the prohibition of intervention in civil wars emerged in post Cold War era based on 1975 resolution of the Institute de Droit International (IDI), in an attempt to limit military interventions and the use of force by superpowers in internal conflicts and in order to guarantee self-determination. However, this previously mentioned resolution allows two exceptions, which are the provision of humanitarian aid in art (4) and the response to unlawful foreign intervention in art (5).

The principle of “negative equality” is no longer applicable

Recent state practice as analyzed by Dapo Akande & Zachary Vermeer here   breaks with the general rule of non-intervention in civil wars. This state practice indicates that third states can lawfully intervene alongside with governments with or without the latter’s consent in cases of terrorist attacks. Examples include the French intervention in Mali based on an invitation from the Malian president which was reflected under UN SC Resolution 2085 which affirmed that assisting Mail is based on respecting its sovereignty. Other  examples  are the US led coalition against ISIS in Iraq and Syria backed by the Iraqi president’s invitation and the US intervention in Afghanistan in 2001 with no condemnation from the international community.

This practice has been further developed in cases that fit with the magnitude of human tragedy to fall under a broader concept of R2P without any invitation. Examples include the intervention in Iraq known as “Desert fox operation in 1998, Kosovo in 1998, Georgia in 2008, Libya in 2011, and the recent intervention in Iraq to rescue the Yazidis in 2014.

The principle of negative equality does not apply in Yemen.

The principle of negative equality lacks the basis for application in the case of Yemen. First, tracing the history of the principle and the reasons behind it proves that it is driven by the necessity to limit intervention by superpowers in order to pave the way for exercising self-determination by the opposition when they seek it. In addition, according to IDI Res 1975, if a foreign state unlawfully intervenes with the rebels, it allows a third state to lawfully intervene alongside with the government. Finally, the effective control test might not be the sole test for deciding the legitimacy for presidents in contemporary international law.

Self-determination

 

http://events.tru.ca/event/2014/international-seminar-indigenous-self-determination

http://events.tru.ca/event/2014/international-seminar-indigenous-self-determination

The principle of non intervention in civil wars is a purpose–based norm that seeks to guarantee peoples the right to exercise self determination as expressed in the UN Human Rights Covenants of 1966 and in GA resolution 2625 (XXV). In the context of civil war, peoples should have the right to choose their own governments without interference by third states, which was clear in the articulation of Art 1(a) of IDI Res 1975. According to the language of the article that describes rebels as “insurgent movements”, those rebels should be seeking self determination and to be supported by a significant part of the population, which was affirmed by M. Dietrich Schindler in his interim report presented at the IDI session in Rome in 1973:[1]

“..assistance to the established government in case of civil wars … is illegal … when the insurgents, without having received any substantial assistance from abroad, succeed in establishing their control over a significant part of the territory and are supported by a large part of the population” (translated from French, emphasis added).

In addition, Georg Nolte and Doswald-Beck argue that third state intervention, even by consent, is unlawful if it is against the expressed will of a significant part of the population such as in uprisings which meet the requirements of the right to self-determination. By applying these criteria to the Houthis, although that they have effective control over a significant part of the territory, they are not supported by a significant part of the Yemeni population which does not represent an exercise of self-determination. To illustrate, although the religious sect (Zaydi) which most the Houthis are affiliated to, represent about one third of the Yemeni population, not all the Zaydis are supporting the Hountis.

Counter- intervention

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http://www.islamicinvitationturkey.com/wp-content/uploads/2011/11/Irans-military-drill.jpg

 

One of the exceptions to the non-intervention in civil wars principle is the case of counter intervention as expressed in Art(5) of IDI Res 1975. To illustrate, if a foreign state intervenes on the side of the rebels in any of the ways expressed by the resolution which vary from military to financial to economic support, this gives third states the right to intervene on the side of the government. Therefore, the Iranian arming of the Houthis is considered unlawful intervention according to the ICJ judgment in Nicragua Case where the court considered arming the rebels as unlawful intervention. In addition, according to Hojatoleslam(a Shiite clerical rank just below that of Ayatollah and a representative of Supreme Leader Ayatollah Ali Khamenei to the Iranian Revolutionary Guard Corps (IRGC)), Yemen has become an area of their territorial hegemony, which was later affirmed by Ali Akbar Velayati, the foreign affairs adviser to Khamenei(and was further analyzed by Aliaa Makady here in this blog). In addition, there is a Yemeni evidence- based claim affirmed by Reuter’s investigations of the Iranian support to the Houthis with no official declared denial from Iran. Therefore, this triggers the lawful right of the Yemeni government to seek assistance from third states, which is what happened in the “Decisive Storm” operation by the Saudi Arabian led coalition.

Invitation by the president

After the adoption of the United Nations Charter, there has been a debate concerning the legality of intervention by invitation. Christine Gray, argues in her book “International Law and the Use of Force” that consent by the government does not legalize state intervention in a civil war with two exceptions either UNSC authorization or a counter intervention.On the other hand, Yoram Dinstein’s argument is that state practice, such as the French intervention in Mali or US airstrikes against ISIS in Iraq and Syria proves that consent by the government may legalize intervention. This position was affirmed by ICJ in the Nicaragua Case:

“…it is difficult to see what would remain of the principle of non-intervention in international law if intervention, which is already allowable at the request of the government of a State, were also to be allowed at the request of the opposition.”

Furthermore, there has been a debate over the existence of “effective control” standard over Yemen by the president Hadi in order to determine his capacity to consent for intervention. State practice shows that this standard is not always decisive; there are some cases in which the international community disregarded territorial effectiveness and replaced it with accepting the internationally recognized governments, such as Somalia and Libya.

To sum up, the situation in Yemen reached the edge of a civil war and the threshold of a human tragedy. However, there is no room for applying the principle of non- intervention in civil wars because state practice in the contemporary international law showed that it is no longer applicable. Second, even if we were to assume that this principle is still valid, there are three reasons to disqualify its application in the case of Yemen: first the “Decisive Storm” operation falls under a counter-intervention in response to Iran’s prior intervention on the side of the Houthi rebels. Second, the Houthis lack support by the Yemeni people, so there is no room for a claim of self determination, and finally, the effective control standard is no more the sole determinant of the legitimacy of presidents in having the capacity to consent to foreign interventions.

[1]IDI Year book, 468, 1973.

Operation ‘Decisive Storm’: Between Collective Self-Defense and Legal Ambiguity

The Yemeni conflict is taking headline news. It’s not that Yemen is usually considered peaceful. On the contrary, Yemen has long been plagued by a series of conflicts, natural disasters, political changes, unification and separation movements, more than most countries. However, even while being the Gulf Cooperation Council (GCC’s) troubled child, it came as a surprise to many when 10 countries declared war on Yemen, lead by Saudi Arabia(KSA). Understanding the Yemeni conflict is far more complicated than this blog post would allow me to explain. However, what is important to understand is that Iranian-backed Houthi rebels attacked and took over the country from KSA backed President Hadi, and KSA and the ‘Decisive Storm’ coalition maintain that their involvement to right the wrong done by the Houthies is lawful under international law.

Al-Arabiya news Collective and IndividualSelf-defense

Saudi Arabia has been very clear about the fact that this military action has an element of self-defense. The Gulf Cooperation Council recognized that the heavy artilleries military drill, conducted by the Houthi rebels on Thursday, 12 March on the Saudi-Yemeni borders was hostile behavior. Both the timing and the method of those drills are seriously called into question. From a legal standpoint, the argument in favor of Saudi Arabia would claim that the actions of the Houthies were a threat of use of force, which, according to UNGA resolution 2625, such a threat “violate the existing international boundaries of another state”. Those “drills” came with Saudi claims that Houthies have attacked their army before on the borders according to Reuters. Under such circumstances, Saudi Arabia can claim their inherent right of self defence under article 51 of the UN charter. The biggest flaw of the Saudi directed argument is that according to both Saudi Arabia and the international community, the Houthi rebels are an illegitimate militia, and hence, do not act on behalf of the state. Although article 51 does not specify that an armed attack needs to occur by a state, UNGA resolution 2625 assumes that a state would be the entity, which “threatens” the use of force, not an armed group. Hence that claim standing on its own does not provide enough ground for Saudi Arabia alone striking in Yemen. However, this is only the beginning of the justification.

The main threat is Iran’s involvement in the conflict. Iran unlawfully arms the Houthi rebels in Yemen, as well as support them ideologically. This is illegal, as arming and controlling a militia inside a country is considered infringing on state sovereignty, but Iran is not particularly shy about it. High religious clerks have been openly declaring that Yemen is within their sphere of influence. Houthi militias, on that note, progressed into Yemen, increasing their territorial control. Iran’s actions violate international law on many different aspects. First, arming paramilitary activities in another state, especially for the purpose of extending their political influence, violates any bases of friendly relations proposed in UNGA resolution 2625. Secondly, extending military aid to a certain militia for a specific political (or any other) reason is considered an act of aggression, according to the UN’s Definition of Aggression (Res. 3314, art. 3(g) & art. 5.1). Lastly, in the International Court of Justice case on Nicaragua, it was decided by the judges that the United States was violating international law “by training, arming, equipping, financing and supplying…or otherwise encouraging, supporting and aiding military and paramilitary activities in and against Nicaragua, has acted, against the Republic of Nicaragua, in breach of its obligation under customary international law not to intervene in the affairs of another State”. This was seen as grounds for collective security; as such intervention in Yemen by Iran was considered a threat to the peace and security of the entire region due to Yemen’s geographical position.

The response came swiftly from Saudi Arabia. In a collective response, Operation ‘Decisive Storm’ witnessed perhaps the strongest Middle Eastern coalition of forces in history. Ten countries mobilized to strike strategic regions in Yemen. Also, Egyptian maritime forces were sent to protect the Gulf of Aden from any threat of closure from Iran and Houthies. The Arab League Heads of State summit, which followed, cemented the principal of collective self-defense by agreeing to create a “joint Arab military force”.

Operation Decisive Storm is being advertised as the last solution to a draining conflict in Yemen. The Gulf Cooperation Council has sponsored the Yemeni issue since 2011, starting many “initiatives”, which have ended in very little success because Yemeni factions continue to fight. More importantly, with the Houthi rebel’s swift accumulation of power on the ground, Saudi Arabia depicted Houthies as a threat to regional and international peace and security, after they became so close to controlling the Gulf of Aden. Additionally, operation ‘Decisive storm’ arguably took place when the threat was imminent, leaving no time for deliberation. It was also necessary as there were no peaceful means to solve this conflict, hence, following the US rhetoric on the preemptive use of force. The biggest problem with such a claim is that the Security Council did not get involved, let alone authorize the use of force in Yemen. This did not rally much criticism towards Saudi Arabia, even though there is a draft resolution being proposed in the Security Council on the conflict in Yemen with the Russian Federation holding a humanitarian stance, rather than a legal one, against the strike.

In both cases, however, there has not been a direct attack on either Saudi Arabia or other countries. However, the issue is being presented as though the Yemeni-Iranian attack is imminent. Under those circumstances, this is a pre-emptive self-defense, and the legal literature behind the legality of such attacks is covered intensely over the Iraq war of 2003. Even if such an attack is legitimate, is the response from Saudi Arabia a proportionate and deterrent response? It is far too early to constructively build an argument either for or against the Saudi-led attacks.

Intervention at the request of the legitimate president

It seems that this has been the new method by which countries justify intervention lately Saudi Press agencyin order to adhere to international law, and you cannot blame them. Intervention based on the request of the president or ruler of one state to suppress non-state rebel groups is perfectly legal under international law. In fact, countries like Egypt, and even Russia went though great lengths to confirm that the use of force in Libya and Crimea, respectively, were justifiable based on the presidents’ or legitimate rulers’ request.

The “legitimate” president of Yemen, Abdrubbuh Mansour Hadi, who has resigned when surrounded by Houthi rebels then retracted his resignation when he walked free, looked surprisingly elated upon reaching Saudi Arabia, after spending a few days in hiding. Firstly, there are question marks over his legitimacy as the president of Yemen, as he first resigned in January 2015, when Houthi rebels took over Sanaa, the main capital. He later rescinded the resignation, stating that he took this step under pressure from the rebels however this was prior to his request from the international community to intervene. Secondly, the level of conflict that was occurring prior to the Operation Decisive Storm was dire, to say the least, as expressed in the UN Security Council Resolution 2204 on Yemen, with multiple “terrorist” and paramilitary entities gaining effective control of major parts of the country. President Hadi’s decision to request intervention as he leaves Yemen for Saudi Arabia questions his control and influence over Yemen in the first place. Lastly, with President Hadi having little control over his country, is the situation in Yemen a civil war gone international? Nevertheless, Hadi further reiterated his request at the Arab League Heads of State Council in Sharm el-Sheikh, Egypt, last Saturday.

To conclude, it is important to understand that the Saudi/Arab Coalition involvement in Yemen is fairly recent. The legal questioning, let alone the justifications, have not been drawn out yet. It is, however, important to question the legality of the collective self-defense mission in Yemen, against the proxy-Iranian militia, with a political motive, under an ideological shroud. Additionally, the different interpretations, which will be given to this collective self-defense action versus the western-led ones, would be an interesting issue to observe. Finally, it is important to note that civilian casualties do occur, and hence, the humanitarian legal aspect should always play a part when assessing the success or failure of the operation.

Critiquing Humanitarian intervention in Libya

In 2011, Libya became one of the countries that were quickly impacted by the Arab Spring. Yet, it has been going through a different path than its neighbours Egypt and Tunisia that have largely succeeded in their revolutions. As a result of the dire humanitarian situation in Libya in 2011, the UN Security Council decided to implement multilateral humanitarian military intervention.

Before the application of humanitarian intervention, one has to make detailed calculations and evaluation of the necessity of intervention. The legality of humanitarian intervention is a complex question: does sovereignty rule out intervention in order not to breach territorial integrity? Or does the international community have the responsibility to avoid gross and systematic human rights violations? Regarding sovereignty, “the legal rub of humanitarian intervention is the United Nations Charter, the foundational document of international law whose core principles are sovereignty and non-intervention” (Cronogue, 129).

The implementation of humanitarian intervention in Libya was arguably based on the prominent model of: the Responsibility to Protect (R2P) doctrine. It is argued that “the concept of R2P consists of three elements: the responsibility to prevent a population from suffering serious harm, the responsibility to react if such harm occurs, and the responsibility to rebuild after an intervention” (Gowers, 597). The R2P implies a collective international responsibility “exercisable by the Security Council authorizing military intervention as a last resort, in the event of genocide and other large-scale killing, ethnic cleansing and serious violations of humanitarian law which sovereign governments have proved powerless or unwilling to prevent” (Background Information on the Responsibility to protect, United Nations). “President Barack Obama—along with NATO—claimed that military action was necessary in order to prevent a bloodbath in Benghazi, where Qaddafi’s forces had surrounded a defenseless population” (Gillin, Libya Is Yet Another Reason to Be Wary of Humanitarian Interventions). However, the intervention implied the overthrowing of the leader Qaddafi who targeted civilian protesters, yet, the overthrowing of a government is not legally justified under international law, but is rather considered political. The timing was ideal to exercise humanitarian intervention as “leaders in the Middle East were still reeling from the Arab Spring” (Patrick, Libya and the future of Humanitarian intervention). The Libyan case was illustrated as “a textbook illustration justifying R2P principles, but its implementation also demonstrated the need for legitimacy criteria to guide decisions on authorizing and overseeing international military intervention” (Thakur, 61).

Libya has been perceived as a “failed” state that lacks the ability to protect its own citizens. Since Libya is considered as a “failed” state, the responsibility is seen to be extended to the international community. Although, the use of force in “failed” states is very debatable, humanitarian intervention seems to have been the first option in Libya. Therefore, the Security Council issued Resolution 1970 (2011), which underscored “the gross and systematic violation of human rights, including the repression of peaceful demonstrators, expressing deep concern at the deaths of civilians, and rejecting unequivocally the incitement to hostility and violence against the civilian population made from the highest level of the Libyan government” (Resolution 1970). It is also added in the Resolution 1970 that “the widespread and systematic attacks currently taking place in the Libyan Arab Jamahiriya against the civilian population may amount to crimes against humanity” (Resolution 1970). The Resolution stressed the significant responsibility of the Libyan authorities to protect and respect its population. The Security Council accompanied Resolution 1970 with the Resolution 1973 that permitted Member States to legitimately take “all necessary measures” in carrying out humanitarian intervention in protecting civilians (Resolution 1973).

Humanitarian interventions are very expensive and their consequences cannot be predicted.  However, humanitarian intervention is a significant instrument that is “claimed” to protect people and punish perpetrators of human rights violations. Humanitarian intervention does not seem to be a “pure tool” that aims to really save lives as it is highlighted that “the United States will remain selective about humanitarian intervention, because it must balance the goal of preventing suffering with other interests and commitments” (Patrick, ‘Libya and the future of Humanitarian intervention’). Actually, the United States always used the arguments of establishing democracy and eliminating human rights violations as a basis for humanitarian intervention. In the case of Libya, it seems that economic interests, more specifically oil reserves were the real interests of the United States. This intervention is reminiscent of the Iraq war in 2003. Moreover, the geographical location of Libya makes it strategically beneficial in the sense that it allows access to Africa.

The United Nations has justified multilateral, UN-authorized humanitarian intervention according to Article 39 of the UN Charter, which states that “the Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security”. Because this Article is broad and vague, the UN Charter does not contain any clear conditions for collective action. Nonetheless, it has been argued that humanitarian intervention goes against Article 2 (4) of the UN Charter, which stipulates that: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations”. Furthermore, the UN Charter underlines in Article 2 (7) that: “nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter”. However, when the situation reaches a perceived “high peak”, the Security Council gives itself the power to employ the humanitarian intervention with the use of Article 39.

The humanitarian intervention in Libya did in fact create a new “failed state”. The humanitarian intervention strategy was actually proven in the Libyan case as a total failure. The presence of a two rival governments makes the position of the country weaker. The existence and role of the militias including some Islamist extremists and ISIS over the country weakens the economic situation due to the constant contest over oil revenues. The creation of these Islamist extremists was the outcome of the continuous sustainment by the West aiming to succeed in the process of regime change. Security cannot be established due to absence of an army and an undrafted constitution. The intervention did not imply any kind of a process of active rebuilding aiming to put Libya on its feet. It is questionable whether the Libyan intervention was really an intervention to protect the population or rather another strategy to remove a political leader who constantly went against the West on the political, social and economic levels. The NATO intervention has succeeded in showing that it was a failure due to the presence of violence after the action. This could be seen with the increased number of deaths and human rights violations. R2P in the Libyan case did not include any kind of protection but rather a kind of violence and humiliation of civilians. Violence has spread all over the country. Saving lives is simply a justification to attack one nation’s territory and breach its sovereignty.

Humanitarian interventions are simply “lies”. They can never be trusted due to the constant hidden goals. Humanitarian interventions cannot function because they produce more negative consequences than good ones and this could clearly be seen in the Libyan case as mentioned above. There is no “pure” behavior of a humanitarian intervention. One has to mention the tremendous influence and control of the United States (U.S) over NATO’s actions. The U.S under NATO’s umbrella looks for its own benefits by trying to act as the “saviors”. Moreover, the humanitarian intervention does not offer any solutions. In other words, the intervention does not try to solve the causes of the conflict or deal with its consequences. If humanitarian intervention in Libya was really “pure”, then the employment of military action was not required. The fact that the use of force was included in the intervention breaches the whole aim and purpose of intervention as it continuously violates human rights.

Why ISIS is not there yet? Challenges and Opportunities For Prosecuting ISIS before the International Criminal Court

hthttp://edition.cnn.com/2014/09/03/opinion/isis-atrocities-propaganda/
hthttp://edition.cnn.com/2014/09/03/opinion/isis-atrocities-propaganda/

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.

http://controversialtimes.com/news/lone-survivor-seal-says-300-marines-could-defeat-isis-if-obama-let-them/
http://controversialtimes.com/news/lone-survivor-seal-says-300-marines-could-defeat-isis-if-obama-let-them/

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.

http://abcnews.go.com/WN/fullpage/isis-trail-terror-isis-threat-us-25053190
http://abcnews.go.com/WN/fullpage/isis-trail-terror-isis-threat-us-25053190

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.