What an Honest UN Security Council Referral of ISIS to the ICC Would Look Like

An Islamic State militant (Photo: Reuters)

An Islamic State militant (Photo: Reuters)

There has been a lot of chatter on the internet about the need to refer the Islamic State or ISIS / IS / ISIL to the International Criminal Court (ICC). In fact, the subject has received so much attention that ICC Chief Prosecutor Fatou Bensouda felt compelled to issue a statement declaring that her office was unlikely to bring forward any prosecutions against ISIS militants unless Syria or Iraq were referred to the Court.

There is no doubt that accountability for atrocities committed by groups in Iraq and Syria would be a welcome development. The real question is how best to do so and, more specifically, whether referring a particular actor – rather than a state or a territorial situation – would help or hinder the pursuit of justice. In this context, even if there is a growing consensus that, one, ISIS atrocities should be prosecuted and, two, that the ICC is the best institution to achieve such an aim, there remain glaring problems with referring a group like ISIS to the Court. Many of these issues have already been raised elsewhere. In order to shake things up a bit, I thought it might be useful to draft what a truly honest UN Security Council referral of ISIS to the ICC would essentially have to look like once all of the political ingredients are factored in. So here we go:

The Security Council,

Expressing its outrage that a civil war in Syria has raged on for four years and has extinguished the lives of somewhere in the environs of 200,000 – 250,000 citizens, the vast majority of which are civilians,

Accepting that its permanent members have, collectively, done very little to stop the suffering – or even really accepted respectable numbers of refugees fleeing the carnage,

Mindful that at the same time, it is somewhat ironic that there’s a debate over whether our member-states should intervene in Syria given that all of us, especially the Permanent 5, have chosen sides and meddled in the conflict, pretty much since day one,

Acknowledging that, precisely because we’ve chosen opposing sides, we have previously failed to refer the situation in Syria to the International Criminal Court,

Stressing that some of us (really, all of us except the United Kingdom and France, most of the time at least) suffer from bouts of ambivalence towards the ICC,

Understanding that international criminal justice isn’t a silver bullet and, while it should probably be part of the equation in achieving peace, not everyone agrees that it should be mixed up with Security Council power politics,

Recalling that Article 16 of the Rome Statute allows us to (at least temporarily) pull the plug on any work we make the ICC do,

Decides to refer IS / ISIL / ISIS to the ICC as of [insert date that does not correspond with beginning of Syrian civil war but roughly approximates the emergence of ISIS],

Decides that anyone who isn’t an ISIS member can’t be prosecuted, one-sided and selective international justice be damned,

Decides that the above operative paragraph should be read to mean that the ICC is prohibited from prosecuting any other actors who have allegedly committed mass atrocities, including but not limited to, the regime of Bashar al-Assad and the Syrian rebel factions, as well as anyone (including some of us) who may have funded and supported the warring parties,

Invites the Prosecutor of the ICC to come chat with us every 6 months. But remember, this is totally up to you, Prosecutor. We’ll be polite, but don’t get your hopes up that our occasional pow-wows will make us lift even just one finger for you. Remember Darfur?

Recognizes that we’ve never forked over any cash to the ICC for the work we send its way, which may be baffling to just about everyone, but we still don’t see the point in starting now.

About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in ICC Prosecutor, International Criminal Court (ICC), Iraq, ISIS, Syria, UN Security Council and tagged . Bookmark the permalink.

3 Responses to What an Honest UN Security Council Referral of ISIS to the ICC Would Look Like

  1. the happy guide says:

    Really interesting topic. Someone or some people definitely need to be brought to justice. The question is, “How?”

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