Leadership accountability or symbolic responsibility?
Using nationality jurisdiction to focus on the accountability of ‘foreign fighters’ is likely to entail a fundamental shift in prosecutorial policy. The OTP has traditionally defended a focus on leadership accountability, i.e. prosecution of ‘those who bear the greatest responsibility for the most serious crimes’. This concept was a cornerstone of prosecutorial strategy during the Ocampo era, and has been applied in early prosecutorial practice (e.g., Prosecutorial Strategy 2009-2012). The OTP has slightly adjusted its strategy in its Strategic Plan 2012-2015 (para. 22) where it recognized the need to gradually build cases upwards. It defended a bottom-up approach based on ‘limitations in investigative possibilities and/or a lack of cooperation and the required evidentiary standards’. It argued that the Office would first investigate and prosecute ‘a limited number of mid- and high-level perpetrators’ in order to ultimately ‘have a reasonable chance to convict the most responsible’. It also noted that the Office would consider ‘prosecuting lower level perpetrators where their conduct has been particularly grave and has acquired extensive notoriety’ since such a strategy would ‘in the end be more cost-effective than having unsuccessful or no prosecutions against the highest placed perpetrators’.
Action against IS would pose a new test to this strategy. If the OTP focuses on ‘foreign fighters’, it might be able to gradually build cases against some IS military commanders. But due to the limited scope of ICC jurisdiction, OTP strategy might never reach the top of the pyramid. Unlike in other situations, the gateway to the most responsible would remain a fiction, and the ICC’s impact on prevention, deterrence and retribution might be limited.
IS criminality would mostly test the merits and limits of strategic action against mid-level and lower level perpetrators. Such a choice might be defended in light of some of the specific features of IS action, such as the depravity of the acts (e.g., executions, beheadings, torture, forced conversion, subjugation of all forms of social life etc.) and the public display of atrocities. Existing modes of responsibility under the Statute, including Article 25 (3) (d), are broad enough to try lower level perpetrators with a remote nexus to the scene of the crime. But this approach would mark a significant qualitative turn.
Action against IS would essentially rely on the ‘expressive value’ of ICC justice, and the social stigma attached with it, as main justification of ICC engagement. This reasoning resonates well with public outrage and moral demands for IS accountability. But it also has downsides. It would make ICC justice largely symbolic. Cynically, ICC action might be perceived as a sign of impotence, or even worse, as a victory, rather than as a threat by IS fighters. Ultimately, such a strategy might have negative repercussions for the ICC in the long run. Perpetrators might argue that they are predominantly tried as representatives of specific types of evil, rather than based on their individual culpability and degree of criminal responsibility. This is not necessarily in line with the purposes of the Statute, and the principle of individual criminal responsibility.
In terms of crime-base, IS is à priori an easy target for ICC action. IS is the epitome of a ‘state-like’ organization that fits the requirements of the policy element of crimes against humanity, even under the restrictive reading adopted by the minority in the Kenya Authorization Decision.
UN bodies, such as the ‘Independent International Commission of Inquiry on the Syrian Arab Republic’ have qualified specific violations as crimes against humanity and war crimes. In its far-reaching, if from a due process perspective, troubling report, ‘Rule of Terror: Living under ISIS in Syria’ (14 November 2014), the Commission argued that IS functions ‘under responsible command’, has a ‘hierarchical structure including a policy level’(para. 76) and ‘perpetrated crimes against humanity’ (para. 74). It included assessments that come close to formal findings of law. It noted that IS ‘has perpetrated murder and other inhumane acts, enslavement, rape, sexual slavery and violence, forcible displacement, enforced disappearance and torture’ (para. 77). It submitted that, as an ‘armed group bound by Common Article 3 of the Geneva Conventions and customary international law’, IS has committed war crimes, including ‘sentencing and executions without due process, killing, mutilation, rape, sexual violence, forced pregnancy, torture, cruel treatment, the use and recruitment of children, and outrages upon personal dignity’ (para. 77). It failed to list names of perpetrators but concluded that ‘commanders of [IS]… are individually criminally responsible for these crimes’ (para 78). It expressly called for an engagement of international accountability mechanisms, including the [ICC]’ (para. 82).
One may question whether and to what extent the Commission enjoys authority and legitimacy (e.g., in terms of methodology, procedural fairness etc.) to make (pre-) determinations on individual criminal responsibility as part of a fact-finding mandate. Individual elements and qualifications of its legal assessment are open to contestation. But this report, and the corresponding UNAMI/OHCHR assessment of IS violence in Iraq, certainly indicate that IS action involves a wide range of acts that come potentially within the ambit of Article 7 and 8 of the ICC Statute.
However, there is one particularity that is sidelined in the discourse. One of the specificities of the Rome Statute is that it does not contain an express prohibition of terrorism as an international crime. In its jurisprudence, the Court has been reluctant to expand the scope of criminality based on application of customary law or jurisprudence of other courts and tribunals under Article 21 (1) (b). This mitigates the prospects and capacity of the Court to try crimes under the formal label of terrorism or ‘crime of terror’, as articulated by the Special Tribunal for Lebanon or the ad hoc tribunals (e.g., in Galić).
Spreading terror among the civilian population is not specifically mentioned in the list of war crimes under Article 8. The ICC would thus need to address terrorist acts through the lens of specific war crimes and crimes against humanity, and their contextual elements (e.g., a policy to attack civilians and persons hors de combat through terror). Similarly, the ICC would be unable to bring charges for mere membership in a terrorist organization, based on the framing of Article 25 (3). Domestic jurisdictions might thus ultimately be better equipped to investigate and prosecute some of the ‘foreign-fighters’ related offences that the Security Council highlighted in para. 6 of Resolution 2178 (2014), namely financing and travel by fighters to join IS.
The need for a multi-layered approach to accountability
It is tempting, but short-sighted to view the ICC as a quick solution to IS crimes. Wrongly used, ICC jurisdiction might fuel tensions, rather than mitigate atrocities. IS violence will require a more sophisticated and multi-layered accountability strategy. In the majority of cases, the exercise of domestic justice is a more promising path, in light of complementarity and limits of ICC jurisdiction. It might also be feasible to contemplate the additional establishment of special internationalized or regional justice forums. But the ICC should resist the temptation to artificially stretch its jurisdiction and use symbolic or one-sided shaming, in order to address public expectations or detract from critiques relating to its focus on Africa. Its role and contribution may be more modest. If the ICC takes action, some of its added value may might lie in coordination, burden-sharing, or mobilization and strengthening of other justice mechanisms (e.g., through assistance and cooperation), rather than selective prosecution of certain mid- or low-level perpetrators, based on nationality jurisdiction.