It is tempting to say that the International Criminal Court (ICC) should open a preliminary examination into the violence of the self-proclaimed Islamic State of Iraq and Syria (‘Islamic State’, hereinafter IS). IS has branded itself as an enemy of the West. Its atrocities are attacks on the very foundation of human dignity and conceptions of civilization. They shock the conscience of humankind. Some of the rhetoric denies the very norms and rules on which international law has been built for centuries. Evidence of atrocities is displayed publicly to illustrate power and spread fear. Records indicate that high numbers of nationals of ICC State Parties have been mobilized as so-called foreign fighters, including nationals of Western countries, North Africa (e.g., Tunisia) and the Middle East (e.g., Jordan). The ICC is in a position of vulnerability. It is under perceived pressure to ‘get out of Africa’.
At first sight, all of the factors make IS a perfect target for ICC intervention. Prosecutor Bensouda noted in an interview on 20 November that the Office of the Prosecutor (OTP) would consider options of ICC engagement. ICC assessment is at an early stage, i.e. Phase 1 of preliminary examinations where the OTP makes an initial assessment of all information to analyse the seriousness of information received and identify the crime base. But taking IS crimes to the ICC poses particular problems that deserve careful consideration. Starting it on a wrong premise might compromise some of the very foundations on which the legitimacy of the ICC is based.
Between instrumentalization, salvation, and apology
In past years, there has been a tendency to present the ICC as a solution to all kinds of societal conflict, ranging from the protection of civilians to electoral politics, gender biases or specific patterns of victimization. There is a quasi-automatic reflex by some actors, in particular international institutions (e.g., Commissions of Inquiry) and some States to view the ICC as part of the solution to human security problems. ICC accountability is associated with faith in change and progress. This conception contrasts with opposing narratives (e.g., African Union) which present the ICC as part of the problem, i.e. through ‘the politicization and misuse of indictments against African leaders’. The Court increasingly suffers from this polarization.
Exercise of ICC jurisdiction has often become a tool of conflict management and lawfare. Pleas for ICC intervention are formulated in the noble language of justice and humanitarianism, but grounded in specific realist agendas, e.g., to de-legitimize political authority or target opponents. This has created dichotomies and stigmas that are difficult to reconcile with the independence of international justice and hard to remedy through judicial procedures. In the context of Security Council referrals (e.g., Darfur, Libya), ICC intervention was used to delegitimize authority of existing regimes, in or after conflict. Self-referrals have mainly resulted in interventions and prosecutions against non-state armed groups that challenged State power. In the context of peace negotiations (e.g., Palestine), the argument of ICC jurisdiction (e.g., via accession or Article 12 (3) declaration) has been used as a bargaining tool and leverage for the pursuit of rationales that are only remotely connected to individual criminal responsibility. In other contexts, ICC intervention is proposed as a ‘quick fix’ for deeper accountability dilemmas, or as an excuse to cover inadequate responses or failures of human rights action.
Some of these very same dilemmas arise in relation to IS. If the ICC intervenes in the ongoing conflict, it is likely to be seen as a prolonged arm of the West by its opponents. If approached wrongly, the exercise of ICC jurisdiction might partly turn into an excuse to mitigate inaction or lack of agreement on Chapter VII action. Whatever the ICC does, it is likely to become a ‘guinea pig’ of unresolved tensions, facing what Darryl Robinson has labelled as the ‘inescapable dyads’ conundrum.
Situation and jurisdiction-related dilemmas
In light of this, the ICC should be cautious to exercise jurisdiction in the absence of a jurisdictional title that allows independent, effective and objective investigation into crimes. The conflict involving IS has its centre of gravity in two States that are not Parties to the Statute: Syria and Iraq. The fact that these States have not ratified the Statute does not necessarily preclude ICC action.
There are three ways that would enable the ICC to proceed: (i) a Security Council referral (Option 1), (ii) an acceptance of the exercise of ICC jurisdiction by Syria or Iraq (as suggested by UNAMI/OHCHR) (Option 2), or (iii) the exercise of jurisdiction over nationals of States Parties, based on the active nationality principle under Article 12 (2) (b) (Option 3). The advantage of Options 1 and 2 is that they would grant the ICC territorial jurisdiction. But this prospect seems rather remote in light of current geopolitics.
A Security Council referral would pave new ground, since its primary target would be to address crimes by an armed group without ties to any particular State. But it would encounter multiple problems. There is, first of all, a certain degree of referral ‘fatigue’. The track record of existing referrals is less than impressive. In existing situations, arrest warrants have been issued. But they have led to deadlock at pre-trial and controversy. None of the existing referrals have resulted in trial proceedings.
Second, in the context of IS, violence spreads over several States. It would be difficult, and partly artificial to leave out connected crimes in Syria, and most of all, to exclude ICC jurisdiction over airstrikes carried out by external actors. In particular, the exclusion of non-State Parties from ICC jurisdiction under operative paragraph 6 of prior Council referrals has come under severe criticism, since it establishes double standards.
Moreover, there is a growing discontent over the financing of Security Council referrals, and lack of follow-up by the Council in relation to requests for cooperation that will have to be addressed in order to avoid the pitfalls of previous referrals and the mere use of the ICC as a ‘dropbox’ for unresolved accountability problems. This criticism was recently reiterated by Prosecutor Bensouda in her statement to the Security Council on 12 November 2014 in which she noted that ‘the continuing disparity between resources and expectations risks systematic underperformance that will not only harm the Court and its mandate, but also the credibility of this Council’.
A declaration under Article 12 (3) might provide an alternative means of facilitating ICC engagement. The advantage of such a declaration is that it would grant the ICC the power to look into all ICC ‘crimes … of relevance to the situation’ and to apply the ‘provisions of Part 9’, in particular the cooperation regime concerning States Parties (Rule 44). But the willingness of Iraq, let alone Syria, to buy in into such an accountability regime remains doubtful. Moreover, such a declaration would inevitably have to address some of the challenges of previous consent-based activations of ICC jurisdiction, namely that they are perceived as an attempt by governments to silence political opposition.
In the absence of Options 1 and 2, Option 3 has gained renewed attention in discourse. Article 12 (2) (b) makes it perfectly clear that the ICC can exercise jurisdiction based on the nationality of the perpetrator. But this mode of exercise of jurisdiction carries significant risks. Technically, the ICC must adopt a two-step methodology. It must first determine a ‘situation’ that forms the basis of an ICC inquiry. The actual exercise of ICC jurisdiction within this ‘situation’ is then limited to a small fragment of that situation, namely patterns of incidents involving acts by nationals of States Parties.
The nexus between ‘situation’ and ‘jurisdiction’
Difficulties arise in relation to the definition of the ‘situation’. Existing resolutions of the UN Security Council (e.g., Resolutions 2170 and 2178) or the Human Rights Council (e.g., Resolution S-22/1) brand the IS as target. IS exercises ‘effective control’ but lacks elements of ‘statehood’ under international law. Territory conquered by conquest remains formally part of the sovereignty of Iraq and Syria. IS claims over population and representation remain contested, since they are partly grounded in the forcible submission.
IS as an ‘organization’ as such cannot form the object of a ‘situation’ under the ICC Statute. Jurisprudence has consistently highlighted that a ‘situation’ must be ‘generally defined in terms of temporal, territorial and in some cases personal parameters ‘(Pre-Trial Chamber, Lubanga, 17 January 2006, para. 65). This approach was deliberately adopted in order to preserve the objectivity of ICC investigations and prosecutions and to prevent one-sided action. The Court expressly rejected a group-based definition of the ‘situation’ in Uganda where it interpreted the referral of the ‘situation concerning the Lord’s Resistance Army’ as an referral concerning the ‘situation in Uganda’. The ICC could therefore not open a preliminary examination in relation to violence committed by ‘IS’. The ‘situation’ would need to be defined in broader terms and would require a territorial or objective nexus.
If the ICC were to interpret the notion of ‘situation’ in this broader sense, its scope would likely exceed the permissible scope of exercise of jurisdiction under Article 12. An ICC inquiry would remain highly fragmented and selective if solely based on nationality.
Dilemmas of system criminality
The OTP has proceeded on the basis of active nationality jurisdiction in a different context, namely in the situation in Iraq (which was re-opened in 2014). But the two situations differ, in light of the diffuse structure of IS.
In the Iraqi preliminary examination, the OTP examines patterns of conduct of a relatively homogenous group, with clear lines of coordination and authority, namely crimes committed by British forces. Investigation and prosecution of IS violence is far more complex, since the structure of IS is more diverse and decentralized. It is, in essence, a different type of ‘system criminality’. Inquiry into violence would require the OTP to look into actions of a plurality of ‘foreign fighters’ which hold different nationalities. For instance, when examining particular patterns of atrocity, the OTP would need to assess the individual contributions of fighters from different backgrounds to a specific incident of violence, and their interaction, in order to determine whether the underlying information and material suffices to support the exercise of ICC jurisdiction. The OTP would be required to dissect individual contributions and roles of authority, before putting individual bits and pieces of the puzzle back together again, based on filters of active personality jurisdiction and analysis of gravity under Article 53.
This might lead to paradoxical results. There are no doubts that IS violence taken in its totality is grave enough per se to warrant ICC scrutiny (Article 17 (1) (d)). However, particularly grave incidents might fall outside the realm of jurisdiction due to lack of a sufficient nexus to nationality. Other incidents might be selected based on the identity of attackers, and sampling of atrocities, rather than their seriousness in comparison to other acts or the conflict as a whole.
The lack of consent of the territorial State has further implications for analysis and investigative methodology. Without support by Iraq or Syria, the OTP will be unable to carry out independent investigations on the ground. The ICC will thus be highly dependent on intelligence, evidence and cooperation by major powers. It would have to rely on witness testimony of refugees and displaced persons, documentary evidence and intelligence by States supporting investigations and prosecutions. This compromises the effectiveness of investigations, and might ultimately impede its capacity to extend the investigation to all sides of the conflict, as required by Article 54 (1).