Is ISIS out of the ICC’s reach?

There are several ways that could happen

The ICC prosecutor could exercise personal jurisdiction over nationals of ICC member states.

Iraq and/or Syria could join the ICC or accept the Court’s jurisdiction.

The UN Security Council could refer the matter to the Court.

Or governments could carry out national prosecutions.

Let’s start with the first.

Personal jurisdiction
When a state joins the Rome Statute, the ICC gains jurisdiction over alleged crimes committed on that state’s territory and by nationals of that state.

ICC Prosecutor Fatou Bensouda has already applied this ‘personal jurisdiction’ in the course of her preliminary examination of alleged crimes committed by British military forces in Iraq.

Iraq is not a member of the ICC, but the United Kingdom is.

The ICC, then, could similarly exercise jurisdiction over ISIS fighters from ICC states parties who travelled to Iraq or Syria.

But the ICC prosecutor has indicated that for now that won’t be the case.

In a statement this month, Bensouda explained that she will not proceed with a preliminary examination into ISIS for the time being.

She explained that while her office has determined that many ISIS fighters come from ICC member states, most of the group’s leadership come from Iraq and Syria—neither of which has joined the Court.

Since the stated policy of the Office of the Prosecutor is to go after those most responsible for alleged crimes—usually those in leadership positions—the prosecutor says she lacks jurisdiction to take action.

For now, then, the prospects for ICC intervention based on personal jurisdiction appear limited.

Accepting ICC jurisdiction
The most obvious obstacle to an ICC investigation of ISIS is that neither Iraq nor Syria has ratified the Rome Statute, so the Court lacks territorial jurisdiction in the two countries.

Aware of this restriction, the authors of a recent UN report on ISIS urged Iraq to join the ICC. Civil society, too, has called on the Iraqi government to join the Court. Despite these entreaties, Iraq has not signaled any intent to ratify the Rome Statute.

Iraq could also choose to issue an Article 12(3) declaration accepting the jurisdiction of the Court. The timeframe of this declaration could be limitless (but not before 2002) or provide the ICC with temporary jurisdiction over alleged crimes.

But just as Iraq has not indicated a willingness to join the ICC, it also has not signaled an inclination to grant the Court jurisdiction—temporary or otherwise—over its territory.

The Security Council option
The third way that ISIS members could come before the ICC is if the UN Security Council makes a referral to the Court.

There was wide support for a resolution referring Syria to the ICC last year, but the measure was vetoed by Russia and China in the Security Council.

France, however, recently indicated that it intends to try for another referral, this time one focused on the actions of extremist groups like ISIS. But there is much debate over whether it’s even possible to refer a group, not a situation, to the Court.

National prosecutions
Under the Rome Statute, states have the primary responsibility to investigate and prosecute alleged war crimes, crimes against humanity and genocide.

The ICC prosecutor has said she remains committed to working with states to support domestic investigations and prosecutions of their nationals suspected of committing grave crimes.

All states that have nationals belonging to ISIS should do all that they can to hold those fighters accountable for any alleged crimes.

Whether it comes from the ICC or from individual state action, perhaps the only sure thing is that the victims’ of the conflict in Iraq and Syria deserve justice.

Have your say – What’s the best way to achieve justice for victims of alleged ISIS crimes in Syria and Iraq?