Tagged: Islamic State

U.S. Commission Calls for ICC Investigation of ISIL

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

On April 30, 2015, the U.S. Commission on International Religious Freedom (USCIRF) issued its annual report on the condition of religious freedom around the world. In this report, the USCIRF recommends, among other things, that the U.S. Government call upon the UN Security Council to refer to the International Criminal Court (ICC) the widely publicized violence attributed to the Islamic State of Iraq and the Levant (ISIL).

The USCIRF is an independent, bipartisan U.S. federal government advisory body created by Congress through the International Religious Freedom Act of 1998 (IRFA). The USCIRF’s statutory mandate includes monitoring religious freedom conditions globally and making recommendations for U.S. policy. IRFA mandates that the USCIRF base such recommendations on international human rights instruments such as the UN Universal Declaration of Human Rights, the International Covenant of Civil and Political Rights, and the Helsinki Accords.

The USCIRF’s 2015 annual report, which covers the period from January 31, 2014 through January 31, 2015, addresses troubling humanitarian issues in 33 countries. The report gives special attention to abuses committed in Syria and Iraq by forces associated with the Islamic State of Iraq and the Levant (ISIL). It states that in both of these countries “ISIL has unleashed waves of terror upon Yazidis and Christians, Shi’a and Sunnis, as well as others who have dared to oppose its extremist views.” The report charges ISIL with responsibility for summary executions, forced conversions, rape, sexual enslavement, abduction of children, and destruction of houses of worship.

Based on these findings, the USCIRF recommends that the U.S. Government “call for or support a referral by the UN Security Council to the [ICC] to investigate ISIL violations in Iraq and Syria against religious and ethnic minorities, following the models used [by the Security Council] in Sudan and Libya.”

The USCIRF’s report and recommendations regarding ISIL (aka ISIS) are in substantial accord with the published statements of the ICC Prosecutor. As written about previously, the ICC Prosecutor has expressed her grave concern about ISIL, while noting that in the absence of a Security Council referral, her office’s ability to investigate ISIL’s activities is limited by the ICC’s jurisdictional requirements.

Related Readings:

  • U.S. Commission on International Religious Freedom, Annual Report (2015).

The ICC Prosecutor Addresses Allegations Against ISIS

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

On April 8, 2015, International Criminal Court Prosecutor Fatou Bensouda issued a statement responding to inquiries her Office has received regarding the widely publicized violence attributed to armed forces acting on behalf of the military and political organization known as ISIS. She noted that such violence is reported to include

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, not to mention the wanton destruction of cultural property.

The International Criminal Court is the only standing international criminal court available to investigate and prosecute crimes of an international character (such as those attributed to ISIS) when such crimes are not investigated and prosecuted by national courts. However, as a treaty-based institution, ICC jurisdiction is limited by rules consented to by State Parties relating to the alleged crimes at issue (subject matter jurisdiction) and to territorial and other requirements.

On August 15, 2014, the U.N. Security Council, acting under its Chapter VII powers took measures with respect to international peace and security and adopted S/RES/2170 (2014), condemning ISIS and other groups “for ongoing and multiple criminal terrorist acts aimed at causing the deaths of civilians and other victims, destruction of property and of cultural and religious sites, and greatly undermining stability.” Res. 2170 calls on U.N. Member States to take measures to interdict the flow of funding and recruits to ISIS. The Security Council has not as yet, however, referred the matter of ISIS-related violence to the ICC, as it could do under Article 13(b) of the Rome Statute.

The crimes allegedly committed by ISIS are of a scale and nature that would likely meet the ICC subject matter jurisdiction requirements – at least for initiating a preliminary investigation by the Prosecutor. However, that by itself is not sufficient to allow the Prosecutor, acting on her own initiative, to pursue an investigation. In the absence of a Security Council referral, either territorial jurisdiction (the alleged crimes were committed on the territory of a State Party) or personal jurisdiction (the alleged crimes were committed by a national(s) of a State Party) would need to be met.

The crimes alleged against ISIS were reported to be committed on the territory of Syria and Iraq, neither of which is an ICC State Party. Either country could nevertheless lodge an Article 12(3) declaration allowing the ICC to investigate, but at this point, neither has done so. Therefore, territorial jurisdiction is currently lacking.

As to the other alternative, the Prosecutor stated that she has information that “significant numbers” of ISIS fighters are nationals of ICC State Parties, including Tunisia, Jordan, France, the United Kingdom, Germany, Belgium, the Netherlands and Australia. She noted that some of these individuals may have committed crimes within the ICC’s subject matter jurisdiction. She noted also, however, that the information available to her Office indicates that the leadership of ISIS is composed primarily of nationals of the non-Party States of Iraq and Syria. Accordingly, given the OTP’s policy to focus on those most responsible for the commission of mass crimes, the prospect of exercising personal jurisdiction over any nationals of State Parties “appears limited” and “the jurisdictional basis for opening a preliminary examination into this situation is too narrow at this stage.”

Noting that “ISIS continues to spread terror on a massive scale in the territories it occupies,” the Prosecutor stated that she “remain[s] profoundly concerned by this situation” and that she will continue efforts, in consultation with relevant States, to gather further information. She emphasized the international community’s “collective duty … to respond to the plight of victims whose rights and dignity have been violated.”