The new enemy of mankind: The Jurisdiction of the ICC over members of “Islamic State”

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President Obama has called the recent Paris terror attacks an “attack on all of humanity”. In doing so, he has touched upon the core of so-called crimes against humanity. Due to their quantitative and qualitative dimensions and their utter disregard for fundamental values, such crimes are directed not only against individual persons, but against humanity as a whole. The link to a State was abandoned in the Statutes of the UN Ad Hoc Tribunals in 1993 (ICTY) and 1994 (ICTR) and then, with a universal claim,  in 1998 with the definition adopted in Article 7 of the Rome Statute of the International Criminal Court (ICC). Since then, it has been possible for crimes against humanity to be committed by non-state actors. Their traditional State-based rationale – punishing the representatives of the morally perverted State that uses its power against its own citizens without restraint – can be transferred to non-state actors. When these actors, like the so-called Islamic State (IS), send suicide assassins into a concert hall to execute innocent civilians, this reveals a level of moral perversion that is typical of crimes against humanity. That the perpetrators invoke God when doing so makes the matter even worse. Religiously motivated perpetrators of crimes against humanity not only deny their victims’ right to exist, but in doing so place themselves above us “unbelievers” as part of a supposedly divine mission; in fact, they act in the same manner as the crusaders they claim to be fighting against.

A perpetrator of a crime against humanity is “hostis humani generis”, an enemy of mankind. The concept was used to refer to pirates long before crimes against humanity existed. The IS is far worse than pirates, and its acts carry all of the hallmarks of crimes against humanity. While this may have been doubted before Paris, after the attacks these doubts are gone with the wind. In the dry technical language of the so-called context element of crimes against humanity, the attacks represent a widespread and systematic attack directed against the civilian population. The attack targeted a large number of civilians and had been planned in a premeditated fashion. The intentional killing of more than 100 people constitutes the required single act of ‘murder’. As a consequence, the ICC has jurisdiction ratione materiae, without any need for recourse to war crimes. This makes the matter simpler, as it is highly controversial – despite the unambiguous language of the French President Hollande (“acte de guerre”) – whether an armed conflict can actually exist between a transnational non-state actor and a State under current International Humanitarian Law.

However, does the ICC also have formal jurisdiction over acts committed by members of Islamic State? One basis for such a jurisdiction is to be found in the UN Security Council referral of the “Libya situation”, which also concerns crimes committed by IS, to the ICC (Res. 1970/2011). ICC Chief Prosecutor Fatou Bensouda has reiterated this several times, most recently in October in her Tenth Report to the Security Council. However, on 8 April 2015 she rejected opening a preliminary examination into the crimes committed by IS for lack of jurisdiction. A few days earlier, on 27 March, the UN Security Council was unable to agree upon a referral of the “IS situation”. The jurisdictional issues have been previously discussed here and here. The Paris attacks have now changed both the factual and the legal situation (on the, albeit ambiguous, Security Council Res. 2249/2015 see previous posts on this blog here and here), and both the Chief Prosecutor and the UN Security Council should take renewed action in response.

Previously, the Chief Prosecutor saw the so-called principle of active personality as the only basis for exercising jurisdiction over IS members. This jurisdictional basis exists because some IS members are nationals of ICC State Parties, including France and Germany, thus according the ICC jurisdiction under Article 12 (2)(b) of the Rome Statute. However, the problem with this kind of personal jurisdiction is that the respective investigations cannot target nationals of non-party States. This would spare the leaders of IS, who are mainly from Syria and Iraq.

The second limb of the ICC’s jurisdiction, the territoriality principle (Article 12 (2)(a) Rome Statute), requires a certain territorial link to the State in which the act was committed (in this case, France). However, the question of how strong this link needs to be is a matter of debate. According to a narrow interpretation, this link is affirmed only when the crimes concerned were committed in a State Party by said State or by a non-state actor resident there. The case of a transnationally active and networked actor such as IS is not an exact match, for such actors have no fixed territory or at most control an area within the territory of a State that is not Party to the ICC (Iraq, Libya, Syria, Turkey). According to another view, however, the fact that the acts have taken place in a State Party – that is, that they took effect there (e.g. causing the deaths of civilians) – should be sufficient. This is the correct view, as it is based upon the principle of objective territoriality recognised in international law. As the Permanent Court of International Justice remarked in the Lotus case already in 1927:

“it is certain that the courts of many countries, even of countries which have given their criminal legislation a strictly territorial character interpret criminal law in the sense that offences, the authors of which at the moment of commission are in the territory of another state, are nevertheless to be regarded as having been committed in the national territory, if one the constituent elements of the offence, and more especially its effects, have taken place there.” (p. 23).

While it is controversial whether Lotus had already established the effects doctrine, it came certainly into existence – as a proper doctrine – 20 years later with US courts addressing antitrust violations in transnational trade relations in the context of civil litigations (US v Aluminum Company of America et al., 148 F.2d 416 [No. 144, Circuit Court of Appeals, Second Circuit, 12 March 1945]). Since the 1990ies it was then also used in criminal prosecutions (for a first case see US v Nippon Paper Industries Co.Ltd et al., 109 F.3d 1 [Court of Appeals, First Circuit, 17 March 1997] and today it can safely be considered as part of international law (cf. Ryngaert, Jurisdiction over Antitrust Violations (2008), pp. 15-6; Mills, BYbIL, 84 (2014), 196; Vagias, Territorial Jurisdiction (2014), pp. 28-31).

At any rate,  regarding the Paris attacks, the requirement of a sufficient territorial link to an ICC State Party – given the massive scale of the attack and the combination of acts and effects on French territory – should be satisfied. Thus Chief Prosecutor Bensouda now has a sufficiently solid jurisdictional basis for proprio motu initiating an investigation into IS (Article 13 (c), 15 Rome Statute). Furthermore, France, as the affected State Party, could refer the situation of the “Paris attacks” to the Court (Article 13 (a), 14 Rome Statute).

Moreover, a Security Council referral should be easier in legal terms now, as it would no longer have to relate to IS in general – that is, to a transnational actor – but could refer directly to the Paris terrorist attacks. This would meet all the requirements developed by the case law for a situation –  delimited by territorial, temporal and possibly personal criteria – to be referred (see Prosecutor v Lubanga, para. 65). In fact, the ICC’s practice has so far been ‘rather flexible’ regarding the factual scope of a situation (see Marchesi and Chaitidou, ‘Article 14’, in Triffterer/Ambos, The Rome Statute of the ICC: A Commentary (3rd ed. 2016), mn. 21, 25, 27, 30) and the problem has rather been that situations referred, e.g. Darfur (Sudan) and Libya, have been too broad as opposed to too narrow. In contrast, to refer the Paris attack would address any concerns of excessive vagueness, as the investigation would have a concrete point of reference. At any rate, under both scenarios – investigations ex officio or Security Council referral – the Prosecutor could target the leadership structure of IS.

Such a concrete prosecutorial targeting of IS, by way of the Paris attacks, would also make sense from the perspective of criminal policy. It is obvious that military action against IS needs to be complemented on several non-military levels to be successful. Effective criminal prosecution constitutes one of these levels; yet it must be organised on a supranational level and requires strong interstate cooperation. Only the ICC can act as the lynchpin of a concerted prosecution of this kind. Of course, this requires not only the unreserved support of State Parties, but also and in particular that of crucial non State Parties such as the USA, Russia and China. Essentially, the aim would be a supranationally coordinated enforcement operation that transcends anything we have seen so far in the ICC’s proceedings – where the Court basically cooperates only with the State Parties affected. It requires the international community’s unconditional will to prosecute and to cooperate accordingly. Unfortunately, the matter has not been addressed at the current 14th Assembly of State Parties in The Hague.

The author is grateful to Margaret Hiley, M.A., Ph.D., for her invaluable assistance in the preparation of this English version.

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Jordan says

November 26, 2015

Very good comment. France can be at war with a NSA insurgent during the armed conflict of an int'l character occurring in Syria, Iraq, and elsewhere.
Also, NSAS have been able to commit CAHs, including genocide, a special type of CAH.

Cecilia says

December 2, 2015

Thank you for this very interesting article.
I just have a question about the complementarity principle that requires, according to Article 17 (1) (a), for the ICC to have jurisdiction, the inability or unwillingness of the State which has jurisdiction over a case, to investigate or prosecute. France showed its desire to prosecute the authors of the crime, and it seems doubtful that it can be said to be unable to investigate or prosecute. Wouldn't it constitute an obstacle for the ICC to have jurisdiction over the Paris attacks?

Kaijun says

December 6, 2015

Thank you very much for this inspiring article.

I have a question about non-state organizations and the perpetrators of the attacks. If the procedure of investigation is opened in the future, will the non-Member State bear state responsibilities for the atrocities, or the mastermind of IS will be prosecuted?