International Justice

CJ354 Endicott College

ICC has no jurisdiction to prosecute ISIS

ICC Prosecutor Fatou Bensouda released a statement today clarifying that the ICC currently has no jurisdiction to prosecute crimes committed by ISIS.  Though the atrocities themselves, which she described as “crimes of unspeakable cruelty” including mass executions, sexual slavery, and allegations of genocide, would fall under the court’s mandate to prosecute the world’s most serious crimes, the court does not have jurisdiction.  Because the crimes have taken place in Iraq and Syria, neither of which are state parties to the Rome Statute, the ICC does not have territorial jurisdiction.  It is possible that the court could assert jurisdiction over nationals of signatory states, and there have been reports of ISIS recruitments from state parties including Tunisia, Jordan, France, the United Kingdom, Germany, Belgium, the Netherlands and Australia.  However, under the court’s mandate, they can only be prosecuted if they are both directly implicated in the commission of crimes against humanity or war crimes and if they are “most responsible” for these atrocities.  Because all information indicates that the leadership structure of ISIS is made up of Syrian and Iraqi nationals, these individuals, not the foreign fighters, would be considered most responsible.

At this point in the conflict, Bensouda explained, the jurisdictional basis for the ICC to open an investigation is “too narrow.”  Her statement also explained that the UNSC or the non-party states involved both have the power to confirm jurisdiction on the conflict, but she emphasized that this decision is entirely independent of the court.  This statement is interesting to consider in the context of both the impunity debate and the whether or not the court has an “African bias.”  The fact that the ICC has not taken action in response to crimes committed by ISIS is sometimes cited as evidence that the court doesn’t investigate crimes outside of Africa, or that the fight against impunity has been abandoned altogether.  Bensouda made the statement, she explained, in response to the numerous inquiries her office has received about whether or not her office was investigating.  It is crucial to understand the legal confines of the court’s jurisdiction in order to understand that often its legal mandate, not a bias or politics, prevents it from acting.

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4 responses to “ICC has no jurisdiction to prosecute ISIS

  1. trottrotman April 8, 2015 at 9:46 pm

    Yes I completely agree – the ICC gets a lot of flak for being incapable when in reality it’s just acting under a lot of restrictions based on jurisdiction. It’s easy to criticize but there are a lot of reasons to prefer a limited ICC. That said, it’s also unfortunate that world powers aren’t doing more to address crimes against humanity committed by ISIS and plenty of other organizations and governments. Like all things, there needs to be a balance.

  2. leckstei24 April 9, 2015 at 10:44 am

    The release of the statement by Bensouda is extremely interesting to me for a number of reasons. The first is that by voicing publicly their inability to gather sufficient evidence and jurisdictional capabilities for these acts by ISIS, I fear that the ICC has almost given ISIS further ability to proceed with their acts of terrorism. If an internationally respected and supported institution such as the ICC cannot call for action against these acts of terrorism and subsequent crimes of “unspeakable cruelty,” who can the international community look towards to be the leader in the fight against ISIS? Although I understand that the ICC might not have neither the resources nor the capabilities to directly combat these atrocities, I believe they could make a better effort to organize a fight against ISIS. Another reason this statement release is interesting to me is because of the final line that Bensouda writes in the statement: “As Prosecutor of the ICC, I stand ready to play my part, in an independent and impartial manner, in accordance with the legal framework of the Rome statute” (http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/otp-stat-08-04-2015-1.aspx). She is echoing her sentiments about the ICC’s willingness to stay involved in monitoring the ISIS situation while continuing to cite her inability to open up further investigations due to the mandate of the ICC. I have yet to come to a conclusion personally as to whether these sentiments are more powerful than not but mostly I am concerned that her urges to the international community will go unheard. Although the ICC is not the only body that can organize a fight against ISIS, it could be one of the few organizations that can truly work to build consensus to fight the acts of terrorism and continuing horror that ISIS is bringing to the international community. I hope that the international powers will begin to address these concerns and hopefully, justice will eventually be brought to the leaders of ISIS.

  3. samdawg94 April 9, 2015 at 7:39 pm

    I agree with the previous blogger in that there are major, and in my opinion, concerning, contradictions in Bensouda’s statement. While it is clear cut that the ICC cannot become involved in the ISIS conflict (unless there is a UN referral or individual prosecutions of nationals from a State Party), Bensouda also maintains that she will keep a watchful eye on the situation. And as the original poster said, the ICC has done a lot of talking when it comes to being impartial and becoming involved in countries outside Africa, but has not showed this in their actions. There are strong political motives to stay out of the Middle East, including the need to maintain good relations because of oil reserves and possibly the threat of terrorists.

    At this point, I doubt the ICC will become involved in the conflicts in Syria and Iraq, despite there being major human rights abuses committed on both sides. Ironically, the ICC’s role is to intervene in conflicts such as this, where civilians are subjected to unbelievable cruelty such as rape and mass executions. The ICC is supposed to be a powerful yet apolitical entity that fearlessly intervenes in atrocities like these, but unfortunately, politics and external circumstances play a large role in determining whether the international community takes initiative to stop human rights abuses.

  4. McLaughry April 26, 2015 at 11:41 am

    Bensouda’s comments about the decision of the ICC not to prosecute ISIS for genocide brings up questions about the effectiveness of the ICC’s jurisdictional laws and how they are applied. One factor that is being glossed over by the ICC is an exception to jurisdictional laws which would allow the ICC to prosecute both Syrian citizens and actors in Syrian territory. If the ICC asked Bashar al-Assad to waive the jurisdictional laws as a non-signatory of the Rome Statute, the ICC would be free to investigate cases of human rights abuses by ISIS.

    The ICC has likely not asked Syria to do this because waiving the rights would likely come with certain political sacrifices and potentially compromise the integrity of an ICC investigation or intervention. For example, as samdawg94 wrote, human rights abuses have been committed by both sides. Thus, Assad would likely want to protect his own administration by requiring that the ICC only pursue cases of atrocities committed by ISIS and his other political enemies. Additionally, if the ICC were somehow able to persuade Assad to waive the jurisdictional rights without this stipulation he would certainly create steep challenges to the ICC’s ability to investigate cases. Without a strong domestic or international political call for action, Assad has little motivation to cooperate with the ICC.

    As outlined in Peskin’s article “Caution and Confrontation in the International Criminal Court’s Pursuit of Accountability in Uganda and Sudan, ” a conciliatory approach and offering concessions raises the prospect that a non-state party will cooperate. This has been the ICC’s approach throughout the years to increase participation in the court, especially in states with high rates of human rights abuses. Unfortunately, without political cooperation on all levels, the ICC is unable to fairly investigate cases. This is, perhaps, the ICC’s biggest downfall as an international justice-seeking institution.

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