The Chief Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, stated in an interview that the ICC is considering bringing war crimes charges against fighters of the self-proclaimed “Islamic State” (IS). A major issue in proceeding with prosecution of these and any fighters in Iraq and Syria is establishing jurisdiction over those responsible. The ICC’s jurisdiction is based upon whether a state is a state party to the Rome Statute – Iraq and Syria are not state parties to the ICC. However, many foreign fighters have joined IS and could potentially be prosecuted by the ICC.
When war crimes and crimes against humanity are committed, the international community naturally desires to see those responsible punished. War crimes are serious violations of international humanitarian law (IHL) – referred to in the Geneva Conventions as “grave breaches.” These crimes violate the fundamental values of IHL, namely protections for civilian persons and objects from the effects of armed conflict. Each of the Geneva Conventions requires State Parties to enact any domestic legislation necessary to criminalize and punish grave breaches and to bring those responsible to trial before the state’s domestic courts or international courts. However, finding the means to punish those responsible for such atrocities can be very complicated in the wake of armed conflict—and the collection of evidence during armed conflict can pose significant risks for investigators. While domestic prosecution is ideal, states are often unable or unwilling to prosecute the persons responsible for atrocities in war. To overcome this challenge, the international community created the Rome Statute, which established the ICC.
The ICC’s mandate is to prosecute “the most serious crimes of concern to the international community as a whole” – war crimes, genocide, and crimes against humanity. Nevertheless, individuals charged with committing such crimes may only be brought before the ICC if the court has jurisdiction over them. Jurisdiction under the ICC may be established through any of three prongs: nationality, territoriality, or referral by the United Nations Security Council. Jurisdiction is established by nationality when the person charged with a crime within the jurisdiction of the ICC is a national of a State Party to the ICC. Territoriality is a basis of jurisdiction when the crime occurred within the territory of a State Party, and even Non-State Parties may accept the jurisdiction of the ICC for specific crimes committed in their territory. Finally, jurisdiction may be established if the UN Security Council refers the situation to the court by acting under Chapter VII of the Charter of the United Nations. Although the power to refer a situation to the ICC rests solely with the UN Security Council, the UN General Assembly may ask the Security Council to refer a situation to the ICC.
The jurisdictional limitations of the court pose a real limitation in its ability to prosecute persons committing violations in Iraq and Syria, since neither state is a State Party to the Rome Statute, nor has either state consented to the jurisdiction of the ICC for the alleged crimes being committed in their territories. Therefore, the ICC cannot exercise its jurisdiction over IS fighters operating in Iraq and Syria on the basis of territoriality. Even if Syria and Iraq later became State Parties to the Rome Statute, jurisdiction would only exist for crimes committed after they became State Parties, as the Statute does not allow prosecution retroactively.
Most interesting, however, is the fact that although the ICC does not have jurisdiction over Syrian and Iraqi nationals fighting for IS in Iraq and Syria, there are many foreign fighters who have joined IS over whom it could choose to exercise jurisdiction. According to EU Counterterrorism Coordinator, Gilles de Kerchove, by the end of September, 3000 European nationals had joined IS in Iraq and Syria. A majority of European nations are State Parties to the Rome Statute, and theoretically these fighters could be prosecuted by the ICC. Indeed, the ICC should be able to exercise its jurisdiction on the basis of nationality over many foreign fighters who have joined IS from States parties such as Canada, Britain, and Jordan.
Of course, such a move could be risky for the ICC. The court recently released a report detailing alleged detention violations in Afghanistan – a State party to the Rome Statute – that appears to point a finger at US forces. Some would argue this puts the ICC at risk of losing what little the support it has from the United States. This would be nothing new, of course, but one has to wonder if alienating its otherwise strong supporters is worth the risk for the court.
Should the ICC prosecutor consider prosecuting IS foreign fighters for war crimes in Iraq and/or Syria? Should the UN Security Council refer IS leadership and fighters to the ICC? Is the ICC the most effective tribunal for trying these crimes? Let us know what you think in the comments below or on Twitter @RulesofWar.