A “Hybrid” Tribunal for Daesh?

On 21 April 2016, Professor Robert Cryer published a concise analysis of the possible consequences of a resolution adopted by the UK House of Commons a day earlier, including of a possible referral of the situation involving crimes – war crimes, crimes against humanity, and, in particular, genocide – committed by members of Daesh to the International Criminal Court (ICC). Although Professor Cryer noted, quite appropriately, that “political realities in the S[ecurity] C[ouncil] mean that there may be a veto on a resolution sending the matter to the ICC”, there are even more limitations to the likelihood of this proposal. This post briefly discusses these other limitations and suggests an alternative way to proceed.

Legal and Practical Limitations of the ICC Jurisdiction

It is unlikely that the ICC would get to deal with Daesh’s crimes in the foreseeable future. The Court does not presently have territorial jurisdiction with respect to the situation in Syria and Iraq, since neither of these States is a Party to the Rome Statute. Theoretically, the Court might exercise personal jurisdiction with respect to crimes committed by foreign members of Daesh who are nationals of States Parties to the Statute – but this is also unlikely, by virtue of the ICC principle of complementarity: if such individuals are found in the territory of a State Party to the Rome Statute, they are likely to be handed over to the States of which they are nationals, or to be tried in the State where they are apprehended (aut dedere aut judicare).

In turn, the likelihood of the situation in Syria being referred to the ICC by the UN Security Council is close to zero, because such a referral would imply the Court’s jurisdiction not only with respect to crimes under international law committed by members of Daesh (for the concept of crimes under international law, see: G. Werle and F. Jessberger, Principles of International Criminal Law, p. 32) but also with respect to those committed by Syrian armed forces, their internal opponents, and – last but not least – by members of foreign armed forces currently present in the country. Yet, there seem to be further good reasons not to refer the situation involving crimes committed by members of Daesh to the ICC at all, but to follow an alternative route.

Establishing a “Hybrid” Tribunal for Daesh

It is submitted that the ICC is not an appropriate judicial forum for dealing with Daesh’s crimes, because it does not represent a sufficient normative framework – that is, international criminal law and procedure, which are codified in the Rome Statute, may not be sufficiently compatible with Islamic (international criminal) law, due to the former’s secular character. Hence it is no coincidence that such important Islamic States as, for example, Saudi Arabia, Egypt, Indonesia, and Iran – representing both the Sunni and the Shi’a traditions of Islam – are not Parties to the Rome Statute. All the more, in the opinion of Daesh – an extremist Islamic actor – secular international criminal law is most definitely a “product of Western civilization”, of “infidels”, a dimension of the very values Daesh is militarily opposing on its way towards the apocalypse. Hence, holding perpetrators of crimes under international law from amongst Daesh liable exclusively under secular international criminal law would not produce an appropriate ideological effect. Since the war Daesh is waging is not just a war of weapons but also, undoubtedly, one of ideologies, the civilized world should certainly overpower Daesh with weapons, but it would be wise to determine the responsibility of the authors of Daesh’s crimes on the basis of values that they are claiming as their own – that is, on the basis of Islamic international criminal law (see passim: F. Malekian, Principles of Islamic International Criminal Law: A Comparative Search.

That a group of leading Islamic scholars has expressed criticism against Daesh, and that important Islamic States have issued declarations to the effect of condemning Daesh’s action, are already very helpful in this regard: it means that Daesh not only represents an ideological minority in the Islamic world but, moreover, that that minority is profoundly wrong in its action, from the point of view of Islamic religion and law. Among other things, leading Islamic scholars have reaffirmed that Christians and Yazidis (frequent victims of Daesh) are kitabi (“People of the Book”), and no harm must be done to them; that Islam does not tolerate violence towards women and children; that Islam does not allow the re-introduction of slavery; that torture is prohibited; and that punishments for crimes should be imposed in the framework of a fair trial procedure based on justice and mercy. Now that Daesh’s crimes have already been invoked by Islamic scholars on the basis of Islamic international criminal law, a further step could be made towards the establishment of a “hybrid” tribunal for Daesh, with due regard to the following elements:

• the legal basis for such a tribunal should combine elements of secular (i.e. customary) international criminal law and procedure – in particular, as far as the rights of victims and defendants are concerned – and of relevant substantive and procedural rules of Islamic international criminal law;
• no less that 50 per cent of the tribunal’s judges, prosecutors and defence lawyers must be scholars and practitioners of Islamic criminal law, in order for the tribunal to be credible in the eyes of Islamic communities. The other key vacancies could be filled by lawyers from other legal traditions;
• the seat of the tribunal should, ideally, be in the Middle East, both for practical (proximity to victims, witnesses and evidence) and symbolic reasons (the seat of the Nuremberg Tribunal was highly symbolic, because it was in an important centre of the defeated Nazism – and the tribunal adjudicating on the basis of Islamic law should not be too distant from the cradle of Islam);
• it goes without saying that Arabic – Muslims’ sacred language and a predominant language in the Middle East – should be among the tribunal’s official and working languages; and
• the tribunal could be established on the basis of a treaty to be concluded by interested States (both within and outside the Middle Eastern region), or on the basis of a Security Council resolution, and could be co-financed by the United Nations and from contributions by interested States.

No efficient criminal prosecution of Daesh members is possible until Daesh’s military defeat. But once that is done, the administration of criminal justice for grave crimes under international law committed in the Middle East – one of the centres of human civilization – should become an important focus for the international community, and the format suggested in this post appears to be appropriate to the achievement of that essential goal.