Prosecuting ISIS at the ICC

Abstract

ISIS began as a fledgling group in United States military jails following the second Iraq war. It came onto the world stage in 2014 when it overwhelmed ill-equipped American trained Iraqi forces. Since its ascendency the group has been responsible for killing and uprooting thousands of Yazidis and Shi’a Muslims. The group consists of an unusual coupling of religious extremists recruited from the Arab and European States and ex-Ba’athist military and political officials. It has committed its atrocities with relative impunity, posting videos of gruesome killings online and documenting its reign of terror in print media and on the Internet. Part of the reason the world community has been unable to punish ISIS officials and hinder its efforts is that there does not exist any legal mechanism by which to arrest and prosecute ISIS members.The International Criminal Court currently stands as the one permanent international legal institution endowed with the ability to prosecute for individual criminal liability. Contrary to the Prosecutor’s April 8, 2015 statement that the Court does not have territorial and personal jurisdiction to prosecute ISIS officials, I argue in this paper that there exists the ability within the ICC’s jurisdictional framework to prosecute ISIS if the Court adopts an expansive approach to jurisdiction that aggregates evidence from attacks taking place on the territory of both State and non-State Parties. This approach is permissible when considering attacks that occur within the context of the same ongoing conflict and perpetrated by the same organization, in this case ISIS. I employ both procedural and textual justifications to support my contention that the ICC has jurisdiction to prosecute ISIS. Procedurally, the progressive prosecutorial process that begins with a referral then preliminary examination leading to a formal investigation and then subsequently to an arrest warrant becomes more focused and precise at each step. I term this the “Funnel Approach.” Textually, the Rome Statute drafters included open-ended provisions related to admissibility requirements, such as the ‘gravity’ threshold. I argue the ‘gravity’ threshold allows evidentiary admissibility outside the traditional notions of territorial jurisdiction in Article 11. The subsequent ability to aggregate relevant evidence from ISIS attacks on both State and non-State Party territories would reach the requisite ‘gravity’ threshold whereas considering the disparate and tangential attacks only on State Party territories may not reach the threshold. Expanding the consideration of attacks in non-State Party territories (e.g. Iraq and Syria) and combining that information with attacks on State Party territories (e.g. Belgium or France) when those attacks are committed pursuant to an organizational policy by the same organization in the midst of the same conflict (in this case, ISIS’s continued campaign of solidifying its ‘caliphate’) would subject all ISIS members, including leadership and subordinates — irrespective of nationality or residence — to the ICC’s jurisdiction. After outlining my expansive jurisdiction argument I tackle possible criticisms, namely that expanding ICC jurisdiction impinges on State sovereignty, obviates judicial neutrality and injects uncertainty into the jurisdictional analyses.