ISIL at the ICC – still a long way to go?

 

 

The report, entitled “ISIL: Nationals of ICC states parties committing genocide and other crimes against the Yazidis”, is a harrowing read, filled with details of crimes committed. An ICC probe into crimes committed by ISIS has been regularly promoted by human rights organisations and international justice commentators. But it is unclear whether this move will lead to anything more than once again shining the limelight on the atrocities being committed.

 

Speaking outside the Court, Minister Bakir explained why they have submitted this report. “This is a follow-up for the efforts of the Kurdistan Regional Government”, he said. “Last year, we came and submitted a report to the ICC in order to start an investigation. But this is a more thorough report.”

 

The delegation submitting the 49-page report was joined by two Yazidis who have fallen victim to the crimes committed by ISIL. The report, created by Yazda and the Free Yezidi Foundation, suggests a narrow focus for the ICC, looking at the specific geographical area of Sinjar District and Nineveh Plains, Iraq, from August 2014. 

 

So how is this report different from previous communications received by the Office of the Prosecutor? According to the report, there’s additional information about the “significant presence of foreign fighters including nationals of states parties”. Some of these fighters are allegedly mid- to high-level commanders. 

 

Although Iraq is not a state party to the Rome Statute, the report argues that the presence of foreign fighters in mid- to high-level positions means that the Court has personal jurisdiction. This has been previously raised by Fatou Bensouda. 

 

Luke Moffett, law lecturer at Queens University in Belfast, thinks it’s an interesting angle to pursue: “The personal jurisdiction would be an interesting one – dependent on whether the victims or perpetrators were nationals of states parties of the ICC. Given the influx of foreign fighters to ISIS, there may be grounds to initiate investigations against them.”

 

Mark Kersten at the University of Toronto still doesn’t believe it’s clear that those most responsible fall within the jurisdiction of the Court: “The Office of the Prosecutor is mandated to prosecute those ‘most responsible’ for international crimes. But it isn’t clear, at least right now, that those ‘most responsible’ for ISIS atrocities fall under the personal jurisdiction of the Court.”

 

Carrie Comer, the permanent representative to the ICC for the International Federation for Human Rights (FIDH), believes that dealing with personal jurisdiction won’t be easy for the Court, but it shouldn’t stop the OTP from looking into it: “Dealing with personal jurisdiction is certainly more complicated in this case than territorial jurisdiction. However, evidence of foreign-fighters from ICC States Parties such as Jordan, Tunisia and various European countries, occupying higher ranks in ISIL, should now push the prosecutor to analyse the situation and proceed to open an investigation if all the necessary criteria are met.”

Welcome move

Although this is still in the preliminary stages, Luke Moffett welcomes the development: “It is a step in the right direction for accountability. The ICC should be focusing on crimes that shock humanity as proclaimed in the Rome Statute Preamble, and the crimes committed by ISIS against the Yazidi certainly qualify.”

 

Carrie Comer and FIDH also put their support behind the efforts to bring ISIL commanders to the Court: “FIDH appreciates the important submission made by the Kurdistan Regional Government of Iraq. Further, it is crucial to remember that not only the Yazidi population has been the object of brutal attacks: the OTP should examine the full spectrum of atrocities committed against all civilians in the region.”

 

The alleged crimes referred to in the report include genocide, extermination, murder, persecution, rape, sexual slavery, sexual violence and forcible transfer. The report goes on to describe the systematic separation of men, women and children, as well as systematic enslavement, selling of women, rape and sexual slavery. 

 

Despite the crimes being committed, Luke Moffett believes that it’s unlikely that ISIL members will end up before the Court: “Given that ISIL is a violent non-state armed group, they are unlikely to be captured and tried or deterred from violence. They are more likely to end up tried and executed by a drone missile.”

 

The report will be submitted as an Article 15 communication. To this date, the Court has received more than 15,000 of such communications, and it’s unclear what has happened as a result of these communications. However, in the report, the authors argue that because the situation is not clearly outside the jurisdiction of the Court, the Office of the Prosecutor has to open a preliminary examination.

 

The OTP decided to keep a tight lid on what was said in the meeting. They decided to only confirm the receipt of the submission: “The Office of the Prosecutor can confirm receipt of information submitted under Article 15 of the Rome Statute.”

 

Luke Moffett believes that, like other Article 15 communications, the OTP will not move forward with a case: “I think the OTP will consider it, but on legal grounds find it inadmissible because of a lack of sufficient personal jurisdiction and gravity”.

 

However, Mark Kersten thinks that there could factors that push the prosecution towards looking deeper into the issue. The OTP has previously said it would consider targeting individuals at a lower level. Secondly, the prosecution wants to play a role in the fight against ISIS: “The second important element to keep in mind is that the prosecutor likely wants to be seen as a relevant party in the fight against ISIS which, as we all know, has garnered extraordinary international scrutiny and public attention, not to mention a military intervention:”

 

Minister Bakir believes that the evidence presented to the Office of the Prosecutor is more than sufficient to move the process forward: “This is a very specific legal case. Therefore what we want to do is work closely with governments so we can provide the necessary documentation and evidence for the ICC to be able to move to the next step. And we are fully convinced that we can move to the next step.”