Is the ICC the Right Response to the ISIS Crisis?

Displaced Yazidi people walk toward the Syrian border in August 2014 (Photo: Rodi Sai / Reuters)

Displaced Yazidi people walk toward the Syrian border in August 2014 (Photo: Rodi Sai / Reuters)

Their ways are a shock to the collective conscience of humanity. Their brutality is almost universally condemned. The evidence of their crimes is vast, not least because they themselves upload first-hand footage of their massacres and mass atrocities. In many respects, the Islamic State (ISIS, or sometimes ISIL) is a perfect target for the International Criminal Court (ICC), a slam-dunk case that really shouldn’t inspire any political, moral, or legal ambiguity.

But is an ICC intervention an appropriate response to ISIS? For some influential observers, the answer is adamantly yes. John Bellinger III, a former official in the administration of George W. Bush, recently insisted that an ICC investigation was warranted and that the Court was the best venue for bringing ISIS combatants to justice. The New York Times editorial board also threw its support behind a United Nations Security Council referral of ISIS to the ICC, arguing that it could help the council make amends for previous failures to protect civilians in Syria and Iraq. Interest in the ICC’s potential role in castigating and prosecuting ISIS has been so palpable that the Court’s chief prosecutor, Fatou Bensouda, felt the need to announce that she did not have sufficient jurisdiction to investigate senior ISIS leaders and could not do so without a UN Security Council referral.

Without question, the international community can and should do something in response to the massive human rights violations and human devastation being wrought by ISIS. Still, despite the widespread – and growing – support for holding ISIS combatants to account, there is an ongoing need for some sober reflection regarding the wisdom of referring ISIS to the ICC. Here are three reasons why an ICC referral may not, in fact, be the right approach to dealing with the Islamic State.

Entrenching selectivity

If the UN Security Council were to refer ISIS to the ICC, it would mark the first time that a group – rather than a territorial ‘situation’ or conflict – was successfully referred to the Court. But it wouldn’t be the first time that a political actor attempted to do so. In 2004, the government of Uganda sought to refer “the situation concerning the Lord’s Resistance Army” to the ICC. This was perceived as an attempt to instruct the Court to target only the government’s rebel adversaries. Ultimately, and at the behest of then-Chief Prosecutor Luis Moreno Ocampo, Uganda’s referral was re-interpreted so as to provide prosecutors with jurisdiction over the territory of northern Uganda – and not just the LRA.

William Schabas recently pointed out that there is nothing precluding the UN Security Council from referring a group to the ICC. But doing so would risk entrenching the Court’s selectivity. In a region that has experienced devastating violence for four years, most disturbingly the repeated use of chemical weapons against civilians (including children), the ICC would be forced to focus on only those crimes committed by ISIS. Would that amount to justice? Perhaps for some. But it would also be an explicit denial of justice for those victims and survivors in Iraq and Syria whose perpetrators and tormentors murder and plunder under another banner.

isis-flagPolitical manipulation of justice

Any UN Security Council referral of ISIS would highly restrict who the Court could and could not investigate and prosecute. Taken together, Council members currently have a laundry list of actors they would want to protect. The US, UK and France are unlikely to support any referral that would potentially put Syrian rebel groups or the Iraqi forces under the ICC’s microscope. Russia and, to a lesser degree, China, would seek to ensure that the regime of Syrian President Bashar al-Assad was shielded from the Court. All would want to make sure that the ICC’s investigation of ISIS as a group did not leak into an investigation of crimes being committed on the territory of Syria or Iraq. Throw into the mix the Council’s fears that Israel’s occupation of the Golan Heights region of Syria could lead the ICC to investigate Israeli actions, and the picture becomes clear: a UN Security Council referral would have to have so many political caveats as to make a mockery of the very notion of impartial international criminal justice.

Moral hazard

So why would the international community, and specifically the UN Security Council, be interested in a referral of ISIS to the ICC? For some, it is out of a conviction that such a referral is the right thing to do. However, there is the simultaneous danger that some states would be interested in a referral of ISIS to the Court not because of its intrinsic value in achieving justice or as an ingredient of conflict resolution but because of a desire to be seen to be doing something after years of failures. As Eric Neumayer has argued:

States reluctant to intervene militarily and to contribute to multinational peacekeeping may use the existence of the ICC as an excuse for their inaction. It may allow states to reassure their domestic publics that something is being done and that crimes can no longer be committed with impunity, without states incurring the substantial costs of preventing those crimes in the first place.

The ICC is a panacea neither to mass atrocities nor conflict. If the Security Council agrees on the need for an ICC intervention, it must be part of a broader effort – and not a fanciful veneer for inaction.

Justice – but how?

It bears repeating: there is no doubt that the atrocities committed by ISIS warrant justice. But the politics of the region and the international community’s half-decade-long dithering stances on Syria have made the pursuit of accountability for ISIS’ crimes increasingly difficult. The UN Security Council would be wise to unravel its convoluted strategies of intervention and non-intervention in the region before outsourcing any responsibility for responding to mass atrocities to the ICC.

This article was originally published at Justice Hub here.


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 International Criminal Court (ICC), International Criminal Justice, Iraq, ISIS, Syria. Bookmark the permalink.

7 Responses to Is the ICC the Right Response to the ISIS Crisis?

  1. Pingback: Is ISIS out of the ICC’s reach? |

  2. A year and seven months after the publication of this article, it has been reported by Reuters that two mass graves of at least 18 members of Iraq’s Yazidi minority, thousands of whom have been killed and kidnapped by Islamic State, have been discovered as security forces fight to dislodge the militants from Mosul.

    Geopolitical concerns impede effective and timely prosecution of human rights violations and international crimes. The hands of the International Criminal Court (ICC) appear to be tied and a double Security Council Veto by the permanent members, Russia and China, blocked a resolution to refer the situation to the Court. Despite the draft of a Statute as early as 2013, the call for the establishment of a hybrid tribunal by the UN Commission of Inquiry and academic support for this approach as the next best alternative, no tangible mechanism has resulted thus far.

    Perpetrators of the international crime of genocide have not been charged & punished pursuant to Arts. VI & IV of the Genocide Convention of 1948 and remain unencumbered to continuously commit genocide or any of the other acts enumerated in article III of the said Convention. Even as late as June 2016, an U.N.-appointed commission of independent war crimes investigators said that Islamic State was committing genocide against the Yazidis.

    What other recourse is there for affected populations of atrocity crimes that have been unequivocally accepted by the international community as international crimes? UNSC Resolution 2249/2015 had already determined that ISIS constitutes “a global and unprecedented threat to international peace and security.”

    Even an “internal armed conflict” would still constitute a “threat to the peace” according to the settled practice of the Security Council and the common understanding of the United Nations membership in general. Indeed, the practice of the Security Council is rich with cases of civil war or internal strife which it classified as a “threat to the peace” and dealt with under Chapter VII, with the encouragement or even at the behest of the General Assembly, such as the Congo crisis at the beginning of the 1960s and, more recently, Liberia and Somalia. It can thus be said that there is a common understanding, manifested by the “subsequent practice” of the membership of the United Nations at large, that the “threat to the peace” of Article 39 may include, as one of its species, internal armed conflicts or even international conflicts involving non-state actors etc.

    Obviously, paragraph 1 of the resolution, the Council similarly “regards all such acts of [ISIS] terrorism as a threat to peace and security,” which again implicitly invokes Article 39. As the ICJ’s Namibia Advisory Opinion makes clear, the lack of reference to Chapter VII in a resolution does not mean that it is not to be regarded as binding nor does it mean that the resolution does not have operative legal effect. However, for the resolution to have those effects the Council must actually decide to do something or to authorize something.

    The resolution calls on states to take all necessary measures in compliance with international human rights law as well as international humanitarian law (and refugee law).

    Case Scenario – IRAQ

    Iraq is not a Party to the International Criminal Court Statute and thus far has not chosen to refer the current conflict to the ad hoc jurisdiction of the Court pursuant to Article 12 of its Statute.

    The Government of Iraq has requested the United Nations Security Council assist with ensuring accountability, but this does not relieve Iraq from its own obligations to ensure accountability through its domestic jurisdiction. On 6 May 2016, H.E. Mr Mohamed Ali Al Hakim, Permanent Representative of Iraq to the United Nations called upon the UN Security Council to “…set up a specific international legal mechanism for investigating and bringing to justice the criminals of ISIL.”: UN Security Council, 7689th Meeting, (6 May 2016), UN Doc S/PV.7689, 5.

    Thus, the resounding echoes for the establishment of an UN-sanctioned International Tribunal which has been repeatedly approved and endorsed by the “representative” organ of the United Nations, the General Assembly : this body not only participated in its setting up, by electing the Judges and approving the budget, but also expressed its satisfaction with, and encouragement of the activities of the International Tribunal in various resolutions, [(see G.A. Res. 48/88 (20 December 1993) and G.A. Res. 48/143 (20 December 1993), G.A. Res. 49/10 (8 November 1994) and G.A. Res. 49/205 (23 December 1994)] according to the rule of law, it must be established in accordance with the proper international standards; it must provide all the guarantees of fairness, justice and even-handedness, in full conformity with internationally recognized human rights instruments.

  3. In further response to my short comment, I must add that the failure, refusal or neglect to refer the situations in Syria & Iraq & ISIS to the ICC or an established competent International Criminal/Penal Tribunal deprive and derogate the affected populations/victims of the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law pursuant to UNGA Resolution 60/147 of 16 December 2005, right of equality before the law and equal protection of the law in accordance with Art. 7 UDHR and other treaties & rights instruments [i.e. international treaties to uphold these rights, including the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Social, Economic and Cultural Rights (ICESCR). E.g. Syria ratified the ICCPR on March 23, 1976, and the ICESCR on January 3, 1976], the principle of primacy of International Law in a competent International Tribunal established in accordance with the proper international standards which provide all the guarantees of fairness, justice and even-handedness, in full conformity with internationally recognized human rights instruments established in accordance with the proper international standards, prolong the conflicts & impunities and aggravates the atrocity crimes, e.g. the Syrian War/Conflict began 15 March 2011 and is presently ongoing (5 years, 8 months, 2 weeks and 3 days) etc.,

    Authorities & References :

    PROSECUTOR v. DUSKO TADIC (Jurisdiction) (1996) 35 I.L.M. 35

  4. The right of access to justice at the international levels constitutes a basic cornerstone of the international protection of human rights, and conforms a true right to the Law. It amounts, lato sensu, to the right to the realization of justice. In such understanding, it comprises not only the formal access to a tribunal or judge, but also respect for the guarantees of due process of law, the right to a fair trial, and to reparations (whenever they are due), and the faithful execution of judgments. The right of international individual petition, together with the safeguard of the integrity of international jurisdiction, constitute the basic foundations of the emancipation of the individual vis-à-vis his own State. This is a domain that has undergone a remarkable development in recent years. It is submitted that the right of access to justice belongs today to the domain of jus cogens. Without it, there is no legal system at all. The protection of the human person in the most adverse circumstances has evolved amongst considerations of ordre public. Such recent evolution has been contributing to the gradual expansion of the material content of jus cogens. Furthermore, the very notion of “victim” (encompassing direct, indirect and potential victims) has been the subject of a considerable international case-law. Victims have had their cause vindicated in situations of utmost adversity, if not defencelessness (e.g., abandoned or “street children”, undocumented migrants, members of peace communities in situations of armed conflict, internally displaced persons, individuals in infra-human conditions of detention, surviving victims of massacres).

  5. Each time I ponder upon the stark grievances of the Yazidis, Christian minorities & all other victims of atrocity crimes in Syria, Iraq etc. & by ISIS/Daesh etc., I’m distinctly reminded by the pronouncement in 2003 by the ICTY Trial Chamber in the case of Momir Nikolic [Case No.: IT-02-60/1-S] which asserted that the ICTY is “intended to send the message to all persons that any violations of international humanitarian law — and particularly the practice of “ethnic cleansing” — would not be tolerated and must stop”.

    The reproduction of the lucid paragraph of the judgment is very apt :

    Para 59 of the Judgment :
    The Tribunal was to achieve justice through criminal proceedings. The purpose of such
    proceedings was multi-fold: the primary objective was to convict – and punish – those individually responsible for their crimes. The suffering and loss of the victims of such crimes would thereby be internationally recognised and acknowledged. Furthermore, through criminal proceedings, the Security Council intended to send the message to all persons that any violations of international humanitarian law – and particularly the practice of “ethnic cleansing” – would not be tolerated and must stop. It was further hoped that by highlighting breaches of obligations under international humanitarian law, and in particular the Geneva Conventions, that the parties to the conflict would recommit themselves to observing and adhering to those obligations, thereby preventing the commission of further crimes. Finally, it was hoped that this commitment to end impunity in the former Yugoslavia would promote respect for the rule of law globally.

    Lastly, the highly-respected judgment must not ring hollow for it will lead to further disrespect for the global rule of law and flourishing impunities and the abundance of atrocity crimes & victims. This has become the resounding grievances of the Yazidis, Christian minorities and other victims of such atrocity crimes.

  6. very good piece. i have learnt greatly on ICC and ISIS. keep the good work

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