Is the ICC the Right Response to the ISIS Crisis?

Justice in Conflict

Displaced Yazidi people walk toward the Syrian border in August 2014 (Photo: Rodi Sai / Reuters) Displaced Yazidi people walk toward the Syrian border in August 2014 (Photo: Rodi Sai / Reuters)

Their ways are a shock to the collective conscience of humanity. Their brutality is almost universally condemned. The evidence of their crimes is vast, not least because they themselves upload first-hand footage of their massacres and mass atrocities. In many respects, the Islamic State (ISIS, or sometimes ISIL) is a perfect target for the International Criminal Court (ICC), a slam-dunk case that really shouldn’t inspire any political, moral, or legal ambiguity.

But is an ICC intervention an appropriate response to ISIS? For some influential observers, the answer is adamantly yes. John Bellinger III, a former official in the administration of George W. Bush, recently insisted that an ICC investigation was warranted and that the Court was the best venue for bringing ISIS combatants to justice. The New York Times editorial board also threw its…

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One response to “Is the ICC the Right Response to the ISIS Crisis?

  1. A year and seven months after the publication of this article, it has been reported by Reuters that two mass graves of at least 18 members of Iraq’s Yazidi minority, thousands of whom have been killed and kidnapped by Islamic State, have been discovered as security forces fight to dislodge the militants from Mosul.

    Geopolitical concerns impede effective and timely prosecution of human rights violations and international crimes. The hands of the International Criminal Court (ICC) appear to be tied and a double Security Council Veto by the permanent members, Russia and China, blocked a resolution to refer the situation to the Court. Despite the draft of a Statute as early as 2013, the call for the establishment of a hybrid tribunal by the UN Commission of Inquiry and academic support for this approach as the next best alternative, no tangible mechanism has resulted thus far.

    Perpetrators of the international crime of genocide have not been charged & punished pursuant to Arts. VI & IV of the Genocide Convention of 1948 and remain unencumbered to continuously commit genocide or any of the other acts enumerated in article III of the said Convention. Even as late as June 2016, an U.N.-appointed commission of independent war crimes investigators said that Islamic State was committing genocide against the Yazidis.

    What other recourse is there for affected populations of atrocity crimes that have been unequivocally accepted by the international community as international crimes? UNSC Resolution 2249/2015 had already determined that ISIS constitutes “a global and unprecedented threat to international peace and security.”

    Even an “internal armed conflict” would still constitute a “threat to the peace” according to the settled practice of the Security Council and the common understanding of the United Nations membership in general. Indeed, the practice of the Security Council is rich with cases of civil war or internal strife which it classified as a “threat to the peace” and dealt with under Chapter VII, with the encouragement or even at the behest of the General Assembly, such as the Congo crisis at the beginning of the 1960s and, more recently, Liberia and Somalia. It can thus be said that there is a common understanding, manifested by the “subsequent practice” of the membership of the United Nations at large, that the “threat to the peace” of Article 39 may include, as one of its species, internal armed conflicts or even international conflicts involving non-state actors or state supported actors etc.

    Obviously, paragraph 1 of the resolution, the Council similarly “regards all such acts of [ISIS] terrorism as a threat to peace and security,” which again implicitly invokes Article 39. As the ICJ’s Namibia Advisory Opinion makes clear, the lack of reference to Chapter VII in a resolution does not mean that it is not to be regarded as binding nor does it mean that the resolution does not have operative legal effect. However, for the resolution to have those effects the Council must actually decide to do something or to authorize something.

    The resolution calls on states to take all necessary measures in compliance with international human rights law as well as international humanitarian law (and refugee law).

    Case Scenario – IRAQ

    Iraq is not a Party to the International Criminal Court/Rome Statute and thus far has not chosen to refer the current conflict to the ad hoc jurisdiction of the Court pursuant to Article 12 of its Statute.

    The Government of Iraq has requested the United Nations Security Council assist with ensuring accountability, but this does not relieve Iraq from its own obligations to ensure accountability through its domestic jurisdiction. On 6 May 2016, H.E. Mr Mohamed Ali Al Hakim, Permanent Representative of Iraq to the United Nations called upon the UN Security Council to “…set up a specific international legal mechanism for investigating and bringing to justice the criminals of ISIL.” : UN Security Council, 7689th Meeting, (6 May 2016), UN Doc S/PV.7689, 5.

    With the traffic of withdrawal states from the ICC itself, thus, the resounding echoes for the establishment of an UN-sanctioned International Tribunal which has been repeatedly approved and endorsed by the “representative” organ of the United Nations, the General Assembly : this body not only participated in its setting up, by electing the Judges and approving the budget, but also expressed its satisfaction with, and encouragement of the activities of the International Tribunal in various resolutions, [(see G.A. Res. 48/88 (20 December 1993) and G.A. Res. 48/143 (20 December 1993), G.A. Res. 49/10 (8 November 1994) and G.A. Res. 49/205 (23 December 1994)], according to the rule of law, it must be established in accordance with the proper international standards; it must provide all the guarantees of fairness, justice and even-handedness, in full conformity with internationally recognized human rights instruments.

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