The Islamic State of Iraq and the Levant clothes itself in the robe of messianic fervor, while the terrorists under its control rape, pillage, enslave, murder, torture and detonate their way into power.
In its zeal to establish what it calls an Islamic caliphate, ISIL (ISIS, Daesh) has committed countless crimes against humanity. The International Criminal Court’s definition of crimes against humanity is clear:
“’Crimes against humanity’ include any of the following acts committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: murder; extermination; enslavement; deportation or forcible transfer of population; imprisonment; torture; rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; persecution against an identifiable group on political, racial, national, ethnic, cultural, religious or gender grounds; enforced disappearance of persons; the crime of apartheid; other inhumane acts of a similar character intentionally causing great suffering or serious bodily or mental injury.”
Because Iraq and Syria are not signatories to the Rome Statute, which created the ICC, the ICC does not have “jurisdiction over crimes committed on their soil,” according to ICC Prosecutor Fatou Bensouda.
There is a caveat, however.
“Under the Rome Statute, the ICC may nevertheless exercise personal jurisdiction over alleged perpetrators who are nationals of a state party, even where territorial jurisdiction is absent,” Bensouda noted. “On this basis, my office has reviewed communications received alleging crimes committed by ISIS, with a view to assessing the prospect of exercising personal jurisdiction over states parties’ nationals within the ranks of this organization. In doing so, my office took into account the scope of its policy, which is to focus on those most responsible for mass crimes.”
Because most of ISIS’ political and military leaders are from Iraq and Syria, the ICC’s options are limited because of the territorial issue.
However, I could not find any analysis from the ICC that addressed this possibility: a Syrian commander who commanded troops in Iraq and Syria. Because he operated in Iraq, couldn’t he be prosecuted under personal jurisdiction. Wouldn’t the same be true of an Iraqi commander who commanded troops in Iraq and Syria?
Bensouda said there remains the possibility of prosecution if the will to do so is there.
“… I have come to the conclusion that the jurisdictional basis for opening a preliminary examination into this situation is too narrow at this stage,” she said. “A renewed commitment and a sense of urgency on the part of the concerned states may help identify viable avenues. The decision of non-party states and the United Nations Security Council to confer jurisdiction on the ICC is, however, wholly independent of the Court.”
In other words, don’t hold your breath.