Holding the Worst to Account: Potential Prosecution of the Islamic State


By Sara Birkenthal


Following the horrors of World War I, Hugh Bellot, a British lawyer, pushed for the establishment of an international criminal court at The Hague, to prosecute war crimes, and “all offenses committed contrary to the laws of humanity.” For Bellot, allowing the “outrages” committed during the war – including the use of chemical weapons – to go unaddressed was “as dangerous to humanity and civilization” as the atrocities themselves.

It took the Holocaust and the killings in Rwanda and Bosnia for the international community to create the first war-crimes tribunal. The 1998 Rome Statute established the International Criminal Court (ICC) with the lofty vision of holding political leaders accountable for international crimes. The statute grants the ICC jurisdiction over four main crimes – genocide, crimes against humanity, war crimes, and crimes of aggression. The ICC may exercise jurisdiction in a situation where these crimes were committed by a State Party national, or in the territory of a State Party, or in a State that has accepted the jurisdiction of the Court, or if the crimes were referred to the ICC Prosecutor by the United Nations Security Council (Security Council).

Syria War Crimes

Bellot’s vision of a world where dictators are dissuaded from brutality by the threat of ICC prosecution is but a distant vision, especially in Syria. The ongoing civil war in the country has seen 470,000 Syrians dead and over 11 million Syrians internally displaced or fleeing the country entirely, in one of the largest exoduses in modern history. The Assad regime maintains its desperate grip on power, continuing to carry out attacks on its own people, including three reported chemical weapons attacks in violation of international law and Security Council resolutions. The vacuum left by the weakened Syrian regime has attracted non-state actors including the Islamic State (IS), Jabhat al-Nusra, and the Free Syrian Army, among others.

IS, also known as the Islamic State of Iraq and the Levant and the Islamic State of Iraq and Syria, has been accused of committing egregious crimes on a massive scale in Iraq and Syria. In March, U.S. Secretary of State John Kerry said that IS “is responsible for genocide against groups in areas under its control, including Yazidis, Christians, and Shia Muslims.” Also, in March, the U.S. House of Representatives unanimously passed a resolution denouncing the actions of IS as “genocide” and calling for the establishment of international and domestic tribunals by UN member states. In December, Amnesty International said that IS has a “large and lethal arsenal” accumulated from decades of arms trading and the poorly regulated international flow of weapons into Iraq.

Prosecution of IS by the ICC

The ICC has faced mounting pressure to prosecute members of IS for international crimes. In March 2015, a UN Human Rights Council report accused IS of committing crimes against humanity, war crimes, and possible acts of genocide against the Yezidi community, an ethnically Kurdish group and one of Iraq’s oldest religious minorities. The report found that the “manifest pattern of attacks” against the Yezidi community “strongly suggest[ed]” that IS committed genocide by killing, causing serious bodily and mental harm, and forcibly transferring members of the group.”

The report described the crimes against humanity as the “widespread or systematic attacks directed against civilian populations pursuant to or in furtherance of an organizational policy to commit such attacks.” Finally, for war crimes, the report based its allegation on acts such as executions, directed attacks against the civilian population, sexual slavery, and the conscription of children under age 15.

Based on these conclusions, the report urged the Security Council to consider referring the situation to the ICC. Referral would be necessary because Iraq and Syria, where IS operates, are not parties to the Rome Statute. Therefore, the ICC cannot open an investigation without the Security Council referring the matter.

However, to date, Russia has blocked all attempts at referring the situation in Syria/Iraq to the ICC. Russia, which holds a permanent seat on the Security Council, has vetoed the previous five Syria resolutions, and continues to heartily support the Assad regime. China, which joined Russia in vetoing the first four resolutions, abstained from the most recent French-led attempt at ICC referral.

Is the ICC Really the Best Mechanism for Prosecution?

These efforts have sparked debate over whether the ICC is the best mechanism for prosecution of IS. While some, such as French Foreign Minister Laurent Fabius, and Senior Fellow at the Council on Foreign Relations John B. Bellinger, have taken the position that the horrendous crimes committed by IS, as a transnational non-state actor, make international prosecution in the ICC more fitting than in national courts.

Others, like scholar Jon Heller argue that “We need to stop assuming the ICC is always the best venue for prosecuting international crimes . . . It’s a weak Court with more failures than successes on its ledger.”

Just this month, three African state parties – Burundi, the Gambia, and South Africa – have withdrawn from the ICC’s jurisdiction. African countries have long indicated their unease with having yet more African situations before the ICC, accusing the court of bias. To date, all but one of the ICC’s ten investigations have been in Africa, leading to accusations of anti-African bias and neo-colonialism.

Alternate Mode of Accountability

Given these critiques and the challenge of referring the situation in Syria/Iraq to the ICC, prosecution of IS may be better delegated to an alternate mechanism. Some have argued that establishing a separate ad hoc tribunal for Syria is a pragmatic alternative to the ICC. Over the past 20 years, ad hoc tribunals have been set up to prosecute serious crimes. These tribunals tend to fall into three categories: a stand-alone tribunal as in Rwanda and former Yugoslavia, a hybrid entity such as the Special Court for Sierra Leone, and a domestic tribunal, such as the Iraqi High Tribunal.

Nevertheless, setting up a new and temporary entity would be challenging and resource-intensive. Defining a sound legal framework, finding facilities, and recruiting and training personnel are likely to take more time and be costlier than if a permanent institution is tasked with investigation and prosecution, according to the Independent International Commission of Inquiry on the Syrian Arab Republic (UN Commission of Inquiry). The Commission also noted that the delay involved in creating such an entity could remove any potential deterrent effect. Furthermore, according to the Commission, given the current security situation in Syria, “it is unrealistic to assume that Syria would support the establishment of such a tribunal let alone fully respect its independence.”

The Path Forward

While the need to hold IS accountable is clear, the path to achieve it is not straightforward. Currently, the likelihood of either Security Council referral to the ICC or the creation of a credible ad hoc tribunal both look grim. For now, the Syrian people will continue to bear the brunt of brutal crimes committed by both Assad’s regime and non-state actors.