The Situation Concerning the Islamic State: Carte Blanche for the ICC if the Security Council Refers?

At a meeting of the UN Security Council held on 27 March 2015, the possibility of a referral to the International Criminal Court (ICC) of the situation relating to the so-called Islamic State (IS aka ISIS, ISIL, or Daesh) was vigorously discussed. At that meeting, which was convened by France and chaired by French Foreign Minister Laurent Fabius (who had travelled to New York specifically to preside over the meeting), more than a dozen of States lined up to call for a Council referral. However, confusion seemed to rein over what should be referred to the ICC. While most States appealed for a referral of the situation in Syria, some urged a referral of the situation in Iraq, others called for a referral of the situation in both States, and, finally, a few remained purposefully vague by calling for a referral of ‘the situation’, ‘the matter’, and even ‘the cases’ to the ICC. One issue was, however, clear: the reason to refer a situation to the ICC would be to make members of IS accountable for the crimes they committed.

This discussion about the possibility of prosecuting IS members at the ICC raises the question whether “situations” referred to the ICC must be defined by reference to a given territory. Is it possible to refer a worldwide situation relating to a group to the Court? Or must the situation referred be one occurring in a particular geographical location or in a particular state?

On 8th April 2015, ICC Prosecutor Fatou Bensouda stated that she will not open a preliminary examination concerning alleged crimes committed by IS, unless Iraq or Syria or the Security Council (SC) provide jurisdiction to the ICC. As Barrie Sander has noted this statement was an attempt by the Prosecutor to pressure States and, especially, the Security Council, to assume their responsibility and confer jurisdiction on the ICC over this situation.

Despite the Prosecutor’s ‘clarification’, neither Iraq nor Syria or the Security Council has yet taken action. Subsequent to her statement, Lithuania, Chile and the UK’ representatives at the UN have continued to push for a Council referral of the situation in Syria to the ICC – but to no avail. The position of Russia and China concerning a referral of Syria is known. They vetoed a similar attempt last year. One may think that the recent attempts to refer IS are trying to push through the window what some members of the Council were unable to push through the door in 2014. However, there is a difference. A Security Council referral of the crimes committed by IS tout court would enable the Prosecutor to charge members of IS not only for crimes committed in Syria or in Iraq but also for crimes committed in Libya, Yemen, Tunisia, France, and why not in the United States.

In her ‘clarification’, Bensouda noted that the ICC may exercise personal jurisdiction over members of IS where territorial jurisdiction is absent. However, since perpetrators that are nationals of States party to the ICC do not appear to be those most responsible, within the leadership of IS, she declared that the current jurisdictional links were too narrow for opening a preliminary examination into this situation. Thus, if the jurisdictional links over the leadership of IS were broadened she could, in her opinion, open a preliminary examination in the situation concerning the crimes committed by IS. In other words, it could be argued that Bensouda leaves open the possibility for the Council to refer a group, in this case IS, to the ICC

Bill Schabas has opined, in an interview with Reuters, that “there’s no rule that says it’s impossible” for the Security Council to refer IS, as a group, to the ICC. Kevin Jon Heller has tweeted that he disagrees with Schabas, and that if the ICC accepts a referral of IS as a group it would need “to radically revise its ‘situation’ jurisprudence.” Mark Kersten tweeted back: “is there more than the Uganda referral?” Good question! Carsten Stahn also argued some time ago against a ‘group-based’ definition of a ‘situation’ and he cited only one case: Uganda’s referral. I will show below that there is actually more than this case.

Prudence or Jurisprudence?

It is true that Uganda’s letter of referral of the “situation concerning the Lord’s Resistance Army [LRA]” to the Prosecutor is instructive. Initially, the Prosecutor responded favorably to the tailored referral by Museveni, emphasizing that the “key issue will be locating and arresting the LRA leadership”, as if the referral did not concern crimes committed by others than the LRA. However, the Prosecutor came back to his position by averring that “the scope of the referral encompasses all crimes committed in Northern Uganda in the context of the ongoing conflict involving the LRA.” (Kony, Status Conference, § 5) Thus, other parties to the conflict with the LRA were also subject to investigation and prosecution before the ICC.

Nonetheless, the ICC stated in various instances that a situation is defined by “territorial, temporal and possibly personal parameters.” It may be asked whether the Court reference to “possibly personal parameters” indicates that a referral entity – especially the SC because of the extraordinary powers conferred to it under the UN Charter – could exempt some individuals from the ICC jurisdiction. For instance, the Security Council tailored the referrals of the situations in Darfur and Libya to the ICC, by deciding that nationals of States not party to the Rome Statute – except Sudanese and Libyans, respectively – were exempted from the ICC jurisdiction.

In its third report to the SC pursuant to resolution 1970 (Libyan referral), the Office of the Prosecutor, correctly affirmed that it “does not have jurisdiction to assess the legality of the use of force and evaluate the proper scope of NATO’s mandate in relation to UNSC resolution 1973.” (at § 53) Indeed, the crime of aggression has not entered into force and, thus, it is not within the jurisdiction of the Court to investigate allegations related to the commission of this crime. The Prosecutor continued and affirmed that “[t]he Office does have a mandate, however, to investigate allegations of crimes by all actors’’. (at § 54)

Last Tuesday 12 May, while the Council was discussing the situation in Libya, Bensouda, referring to the recent mass executions of Egyptian and Ethiopian Christians in Libya by groups claiming to be affiliated to the IS, stated that her office “considers that ICC jurisdiction over Libya prima facie extends to such alleged crimes”. Here, the Prosecutor is linking ICC’s jurisdiction to the Libyan territory, which has already been referred to the Court. What remains to be examined is whether it can be concluded that these crimes were committed in the context of the ‘situation of crisis’ that triggered the jurisdiction of the Court over the situation in Libya (See below Mbarushimana Challenge to Jurisdiction).

 At the time of writing, all the situations referred to the Court or initiated by the prosecutor proprio motu were defined by the territory where the crimes were occurring. The two situations where the prosecutor proprio motu asked the authorization to conduct an investigation concerned ‘the situation in Kenya’ and the ‘situation in Côte d’Ivoire’. The self-referrals of Uganda, DRC, CAR I and II, and Mali, regarded to the situation occurring in their respective territory. The two SC referrals are also territorially focused. Although some of the self-referrals tried to indicate who should be tried (e.g. Uganda and CAR I) the real basis of the situation referred was that crimes within the jurisdiction of the Court were being committed within their territory during a certain period.

When a situation is referred to the Court there is, nonetheless, the possibility that a situation taking place in one country, extends beyond its borders. In such a setting, the crimes committed could still fall within the jurisdictional parameters of the Court, if it was committed by nationals of a State Party or a State accepting jurisdiction of the Court under Article 12(3) Rome Statute. If not, the crimes exceed the territorial and personal parameters of the situation. That appears to be the correct meaning of what the Court meant when stating that a situation is defined by “territorial, temporal and possibly personal parameters.”  

The Court has also signaled to referral entities that it will not accept a targeted referral. In Mbarushimana Challenge to Jurisdiction, Pre-Trial Chamber I held that:

“a referral cannot limit the Prosecutor to investigate only certain crimes, e.g. crimes committed by certain persons or crimes committed before or after a given date; as long as crimes are committed within the context of the situation of crisis that triggered the jurisdiction of the Court, investigations and prosecutions can be initiated.” (at § 27)

In the footnote, it was specified, mentioning the Decision to Issue an Arrest Warrant against Al-Bashir, “that the referring party (the Security Council in [the situation of Darfur]) when referring a situation to the Court submits that situation to the entire legal framework of the Court, not to its own interests”. Thus, it is up to the Court to define the situation, even if the referral is from the Security Council.

If one is not satisfied that the practice highlighted above clarifies the meaning of a situation, one can simply turn to the preparatory work of the Rome Statute to confirm. During the drafting of the Statute, the word ‘situation’ was expressly adopted in order to avoid that ‘cases’ be referred to the Court. Even the word ‘matter’ was rejected. Indeed, it is not a simple matter to refer IS to the ICC. While the politically informed body that is the Council may believe it can refer a group, the Court may decide that if such referral is not linked to a territory it does not fit within the definition of a situation.