JURIST Guest Columnist John B. Quigley, of The Ohio State University Moritz College of Law, discusses the possible implications of prosecuting ISIL under international law…

The Human Rights Council of the UN addressed the question of rights violations by ISIL in Iraq in Resolution S/22-1 of September 1, 2014, titled “The human rights situation in Iraq in the light of abuses committed by the so-called Islamic State in Iraq and the Levant and associated groups.” In this resolution, the Human Rights Council asked the UN High Commissioner for Human Rights to organize an inquiry mission to Iraq to investigate possible commission of war crimes and crimes against humanity. In a preamble clause, Resolution S/22-1 mentioned specifically then-recent acts against the Christian and Yazidi populations in northern Iraq. The High Commissioner has released the inquiry mission’s report, dated March 13, 2015. It is titled “Report of the Office of the United Nations High Commissioner for Human Rights on the human rights situation in Iraq in the light of abuses committed by the so-called Islamic State in Iraq and the Levant and associated groups.”

The report finds credible evidence for violations by ISIL as crimes against humanity and war crimes. It adds genocide to that list, specifically as it relates to acts of ISIL against the Yazidi population. The report asks the Human Rights Council to “call on the Security Council to consider referring the situation in Iraq to the International Criminal Court.” That court has subject-matter jurisdiction to try individuals for crimes against humanity, genocide and war crimes. The Security Council has the power to refer such crimes to the court, under Article 13 of the Rome Statute of the International Criminal Court.

Resolution S/22-1 did not specifically mention possible abuses by those fighting against ISIL. To its credit, the report took the actions of “other parties” into consideration and found credible evidence of violations by the Iraqi Government and government-affiliated militias. Were the Security Council to refer the situation to the International Criminal Court, the reference would likely be for violations committed by individuals involved on any side.

A Security Council referral would be the most feasible route to jurisdiction in the International Criminal Court. In principle, the Office of the Prosecutor (led by Fatou Bensouda) could open a preliminary examination proprio motu under Article 15 of the Rome Statute, but Bensouda would find scant basis for jurisdiction in the court for ISIL-committed offenses in Iraq. Iraq is not a party to the Rome Statute, so she would find no Article 12(2)(a) territorial jurisdiction. She might be able to identify ISIL personnel of nationalities of states that are party to the Rome Statute. Such persons might fall under the court’s jurisdiction under Article 12(2)(b), which gives jurisdiction over nationals of a state that is party to the Rome Statute. But even if Bensouda did identify such ISIL personnel as having committed offenses within the court’s subject-matter jurisdiction, they would likely be lower-level figures rather than ISIL policy-level figures. The practice of the prosecutor to date is to indict higher-level figures. The prosecutor might or might not find senior ISIL figures who have nationality in a state that is party to the Rome Statute.

Any state that is party to the Rome Statute could refer the ISIL situation to the prosecutor under Article 14 of the Rome Statute. A state party referral would lead to the opening of a preliminary examination by the prosecutor, but the prosecutor would need to find the same indicia of territorial or personal jurisdiction as if she proceeded proprio motu. Thus, a Security Council referral remains the most feasible route to jurisdiction in the International Criminal Court.

As a matter of substantive law, the report is on target in finding indications of commission of war crimes, of crimes against humanity and of genocide. The prosecutor, of course, would have to attribute particular offenses to particular individuals, an exercise in which the report does not engage.

The indicia for the three internationally-defined offenses may well be met with respect to acts by ISIL personnel. As for war crimes, the situation would seem to be an armed conflict not of an international character, as the report says, despite the fact that ISIL has aspirations beyond the territory of Iraq and is engaging in armed conflict outside Iraq. For crimes against humanity, the acts of ISIL personnel seem to be directed against various civilian populations and bear a systematic character. For genocide, the analysis might be more difficult. An intent to destroy a particular population group, in whole or in part, would need to be shown. The report focuses on the Yazidis as such a group. The Yazidis would seem to be an identifiable group for purposes of the genocide definition.

With genocide, motive is not relevant. If an accused ISIL figure has an intent to destroy a group in whole or in part, she or he gains no exoneration by arguing that the reason for the action related to religious beliefs or that the action was motivated by a desire to rid the area of values imported from the West. The prosecutor would not need to prove that an accused person bore animosity to the victims based on their group affiliation. The accused might well act out of a motivation she or he considers valid, but all that is required for a genocide conviction is that enumerated acts were committed with intent to destroy the group in whole or in part.

Glosses on the genocide convention found in the Krstic case [PDF] in the International Criminal Tribunal for the Former Yugoslavia and in the 2007 judgment of the International Court of Justice in Bosnia’s case against Serbia [PDF] give some indication of what the prosecutor could and could not use in prosecuting ISIL figures. A group must be identified, and the intent must be to destroy a substantial part of that group. In the absence of express statements, intent can be inferred from actions, but in that case the actions must clearly bespeak an intent to destroy a substantial part of the group.

The Krstic trial court judgment and the ICJ Bosnia judgment limit “destruction” in genocide to physical destruction of persons. Thus, if the prosecutor were to follow the approach of the ICTY and the ICJ, the much-publicized destruction of cultural and historical artifacts and structures by ISIL would not be considered genocide. It might, however, be considered relevant to whether the killing of group members was intended to destroy the group as such.

Were proceedings to be commenced on the basis of genocide, the focus would be on individual suspects and their actions and intent under the definition of genocide. The question would not be whether genocide was committed, in some abstract sense, against the Yazidis, but whether a particular individual committed acts against them as are listed in the Genocide Convention with the intent to destroy the Yazidis in whole or in part.

If ISIL figures were indicted, gaining custody could be a serious obstacle. If they were to fall into the custody of the Iraqi Government, it could surrender them, or the Iraqi Government could choose to try them in an Iraqi court. Such prosecution could preempt the International Criminal Court, since under Article 17 of the Rome Statute the court finds a case inadmissible if it is being dealt with in a genuine domestic proceeding. The report in fact advises that Iraq try ISIL personnel in Iraq’s domestic courts for the three international offenses.

The report also advises Iraq to accede to the Rome Statute and to accept ICC jurisdiction over the current situation under Article 12(3) of the Rome Statute. Accession would provide jurisdiction only prospectively. An acceptance over the current situation under Article 12(3) could apply retrospectively to cover the events of 2014.

The Government of Iraq may not be anxious to confer jurisdiction on the ICC. For ISIL, its personnel may well not be captured alive, and for them, if captured, going to The Hague would likely protect them from a worse fate. So as a practical matter, the potential negative consequences for government officials may be greater than those for ISIL personnel.

The report’s proposal for an investigation by the ICC remains largely theoretical. The Security Council is not likely to refer the situation. Reading the report reminds one of the limited reach of the International Criminal Court. The aspiration of a judicial institution that can reach internationally defined offenses around the globe is not likely soon to be achieved.

John B. Quigley is a Professor of Law at The Ohio State University Moritz College of Law in Columbus, Ohio. He earned his LL.B., M.A. and A.B. from Harvard University.

Suggested citation: John B. Quigley, Rights Violations by ISIL: The Problem is Enforcement, JURIST – Academic Commentary, Mar. 28, 2015, http://jurist.org/academic/2015/03/john-quigley-isil-prosecutions.