Difficulties in Prosecuting Islamic State Members Under International Law
Since its emergence in 2013, The Islamic State has used increasingly violent tactics in an attempt to establish a worldwide caliphate.[i] The Islamic State is accused of committing crimes of unspeakable cruelty including mass executions, sexual slavery, rape and other forms of sexual and gender-based violence, torture, mutilation, enlistment and forced recruitment of children, and the persecution of ethnic and religious minorities.[ii] On March 13th, 2015, the Office of the United Nations High Commissioner for Human Rights published a damning report depicting purported abuses committed by members of the Islamic State including crimes against humanity, war crimes against the civilian population, and genocide.[iii] Amnesty International reports that the Islamic State has carried out ethnic and religious cleansing “on a historic scale”, systematically targeting non-Arab and non-Sunni Muslim communities, killing or abducting thousands, and displacing hundreds of thousands.[iv] On March 14th, 2016, Secretary of State John Kerry announced that the United States government determined the crimes committed by the Islamic State against Yazidis, Christians, and Shiite Muslims in Iraq and Syria amounted to genocide.[v]
Although the decision to classify the Islamic State’s actions as genocide is significant, it will be difficult for the international community to prosecute the leaders, especially while the conflict is on-going. While it may be possible to indict members of the Islamic State, because the conflict is on-going and because so many members of the organization reside in territories controlled by the Islamic State, prosecution is severely frustrated due to an inability to locate or capture leaders. If a leader is captured, the international community has three options in prosecuting Islamic State members for international crimes including: prosecuting criminals in the domestic State courts, before and ad hoc tribunal, or before the International Criminal Court.[vi]
States whose citizens who are members of the Islamic State have the option to investigate their own citizens to determine if they are responsible for committing crimes that amount to genocide. Under this option States may prosecute their own citizens for assisting terrorist efforts or committing terrorist acts. Currently it is unlikely that a majority of members of the Islamic State who are citizens of Iraq or Syria will be prosecuted because of the on-going conflict. Many members reside in areas under complete control of the Islamic State, making even basic judicial functions, such as execution of warrants, impossible. Because high-ranking officials of the Islamic State are often in hiding, their capture and prosecution is highly unlikely. In addition, some States have long-arm statutes which allow them to prosecute alien terrorists who have engaged in or provided support for a foreign terrorist organization.[vii] The United States, France, and Germany are all able to prosecute members of the Islamic State under their own domestic laws if they are captured.[viii]
The United Nations Security Council can establish an ad hoc tribunal to prosecute Islamic State members. The Security Council has created two tribunals in the past, the first to prosecute criminal violations during the genocide in Rwanda and the second to prosecute criminal violations in Yugoslavia.[ix] Because both Iraq and Syria are members of the United Nations, both States would be required to cooperate and abide by the decision of the tribunal.[x]
There have been increasing calls for the International Criminal Court (ICC) to prosecute Islamic State leaders.[xi] The ICC prosecutor, Fatou Bensouda, addressed the issue and stated while the Islamic State has committed atrocious crimes, her jurisdiction is too narrow launch a prosecution.[xii] Article Thirteen of the Rome Statute, permits the International Criminal Court (ICC) to exercise jurisdiction where:
(1) A State Party refers the situation to the Court pursuant to Article 14;
(2) The UN Security Council refers the situation to the Court under Chapter VII of the UN Charter; or
(3) The Prosecutor opens an invest1igation proprio motu under Article 15 on the basis of information on crimes within the jurisdiction of the Court.[xiii]
Because Iraq and Syria are not parties to the Rome Statute, the ICC can only exercise jurisdiction over its nationals if the Security Council refers the situation to it. [xiv] Because there are members of the Islamic States who are citizens of States which are party to the Rome Statute, it would be possible for the ICC to prosecute those members.[xv] The ICC has reviewed the nationalities of the highest ranking officials and as determined that they are primarily citizens of Iraq and Syria, therefore the ICC has not chosen to prosecute those mid-level members as it conflicts with the Prosecutor’s policy to indict those high-ranking leaders who are most culpable.[xvi] The Security Council does have the ability to refer the situation to the ICC, although this option is hindered by the requirement that the referral be unanimous among permanent members of the Security Council. The United States may be wary of permitting and ICC investigation which would scrutinize its own military operation in the area. [xvii]
While options exist for the international community in prosecuting Islamic State leaders, the possibilities are severely limited by an inability to locate and capture Islamic State members. Until the situations in Iraq and Syria have stabilized and the militant branch of the Islamic State is defeated, it is highly unlikely that the international community will be able to prosecute the majority of Islamic State leaders. If the Islamic State folds into the legitimate governments of Iraq or Syria, it is unlikely that the international community will be able to force either State to prosecute it’s own citizens, or to comply with international prosecution.
[i] Tim Lister, What does ISIS rally want?, CNN (Dec. 11th 2015), http://www.cnn.com/2015/12/11/middleeast/isis-syria-iraq-caliphate.
[ii] Fatou Bensouda, Statement, on the Alleged Crimes Committed by ISIS, International Criminal Court, (Apr. 8, 2015), http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/otp-stat-08-04-2015-1.aspx.
[iii] Anna Brennan, Prosecuting ISIL before the International Criminal Court: Challenged and Obstacles, 19 Amer. Soc. Int. L. 21, (Sept. 17 2015), https://www.asil.org/insights/volume/19/issue/21/prosecuting-isil-international-criminal-court-challenges-and-obstacles#_edn7. (citing UN Human Rights Council, Report of the Office of the United Nations High Commissioner for Human Rights on the Human Rights Situation in Iraq in the Light of Abuses Committed by the So-Called Islamic State in Iraq and the Levant and Associated Groups, U.N. Doc. A/HRC/28/18, at 5–14 (Mar. 13, 2015)).
[iv] Ethnic Cleansing on a Historic Scale: Islamic State’s Systematic Targeting of Minorities in Northing Iraq, Amnesty International, (2014), file:///C:/Users/Sarah/Downloads/mde140112014en.pdf.
[v] Eric Banco, US Says ISIS Crimes Amount to Genocide, But Prosecution Is Difficult, Internal Business Times. (Mar. 17 2016) http://www.ibtimes.com/us-says-isis-crimes-amount-genocide-prosecution-difficult-2338504
[vii] 18 U.S.C. § 2339A, !8 U.S.C. § 2339B.
[viii] Joshua Keating, Why It’s So Hard to Prosecute ISIS for War Crimes, Slate, (Apr. 8 2015), http://www.slate.com/blogs/the_slatest/2015/04/08/isis_and_the_icc_why_it_s_will_be_tough_to_prosecute_the_islamic_state_for.html
[ix] Eric Banco, US Says ISIS Crimes Amount to Genocide, But Prosecution Is Difficult, Internal Business Times. (Mar. 17 2016) http://www.ibtimes.com/us-says-isis-crimes-amount-genocide-prosecution-difficult-2338504
[xi] Joshua Keating, Why It’s So Hard to Prosecute ISIS for War Crimes, Slate, (Apr. 8 2015), http://www.slate.com/blogs/the_slatest/2015/04/08/isis_and_the_icc_why_it_s_will_be_tough_to_prosecute_the_islamic_state_for.html
[xii] Fatou Bensouda, Statement, on the Alleged Crimes Committed by ISIS, International Criminal Court, (Apr. 8, 2015), http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/otp-stat-08-04-2015-1.aspx.
[xiii] Rome Statute of the International Criminal Court, art. 13, 2187 U.N.T.S. (Jul. 17 1998).
[xiv] Anna Brennan, Prosecuting ISIL before the International Criminal Court: Challenged and Obstacles, 19 Amer. Soc. Int. L. 21, (Sept. 17 2015), https://www.asil.org/insights/volume/19/issue/21/prosecuting-isil-international-criminal-court-challenges-and-obstacles#_edn7.
[xvi] Id., see, Fatou Bensouda, Statement, on the Alleged Crimes Committed by ISIS, International Criminal Court, (Apr. 8, 2015), http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/otp-stat-08-04-2015-1.aspx.
[xvii] Id. at xiv.