ICC has no jurisdiction to prosecute ISIS
April 8, 2015
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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.