The ICC’s Problematic Jurisdiction over Foreign IS Fighters

[cross-posted at Jurist: Academic Commentary]

By Elinor Fry –

In an interview with the Süddeutsche Zeitung published on November 20, the Chief Prosecutor of the ICC, Fatou Bensouda, said her office is considering the possibility of investigating acts that could be qualified as war crimes or crimes against humanity committed by the Islamic State (IS) fighters. Bensouda’s statement pertains to the earliest stage of possible ICC involvement: an initial assessment meant to identify those crimes that appear to fall within the court’s jurisdiction (phase one of the preliminary examination process, not to be confused with the formal initiation of an investigation pursuant to Article 53(1) of the ICC’s Rome Statute). While the crimes committed by IS are likely to fall within the court’s subject-matter jurisdiction, and jurisdiction can be exercised over nationals of States Parties based on the statute’s active nationality principle, this jurisdictional scheme presents some serious challenges. It raises the question whether the issue of foreign IS fighters is really one for the ICC prosecutor to take on without the UN Security Council (SC) or Syria and Iraq taking action.

IS—not just a terrorist group but a military and political organization seeking to impose its radical understanding of Islam on all who cross its path—has focused on building its “state” ever since it joined the Syrian civil war in 2013. Governed from Raqqa in Syria, IS now holds large sections of Syrian and Iraqi territory. Reports of beheadings, mass killings, rape, slavery and other atrocities have been making headlines worldwide for the past year, while more and more foreign fighters are making their way to the self-declared Islamic caliphate.

International attention shifted to the unprecedented number of citizens of states other than Iraq and Syria joining the ranks of IS after the SC adopted Resolution 2170 this summer, calling on all UN members states to take measures to “suppress the flow of foreign terrorist fighters,” bring them to justice and discourage people to travel to Syria and Iraq for the purpose of joining terrorist groups. According to an SC report obtained by The Guardian in October, over 15,000 people from more than 80 countries have joined IS and similar extremist groups. Other sources state that more than 3,000 Europeans have joined IS. The largest groups are not European though; they appear to be from Tunisia, Saudi Arabia and Jordan.

Pursuant to Article 13 of the Rome Statute, the ICC’s jurisdiction can be triggered in three ways: (1) the SC refers the situation to the court, (2) a State Party refers the situation to the court pursuant to Article 14, or (3) the ICC prosecutor initiates an investigation proprio motu pursuant to Article 15. In the case of an SC referral, other preconditions for the exercise of jurisdiction are bypassed, meaning it does not matter whether or not the territorial state or the state of active nationality is a State Party to the Rome Statute. The other two options leave these preconditions intact: pursuant to Article 12(2) the court may exercise jurisdiction over conduct that occurred on the territory of a State Party or over persons who are nationals of a State Party. Article 12(3) provides states not party to the statute with the possibility of signing a declaration accepting ad hoc jurisdiction of the ICC with respect to a particular crime, which for all intents and purposes then equates them with states parties.

There is no doubt that the flow of foreigners to IS is considerable and that many of the fighters’ countries of origin—European states, Tunisia, Jordan and Australia, to name a few—are States Parties to the Rome Statute of the ICC. Since neither Syria nor Iraq—the states on the territory of which the crimes took place—is a State Party to the statute, and assuming they will not accede to the statute anytime soon or make a declaration under Article 12(3), there remain two possible avenues by which the crimes of foreign IS fighters could come within the court’s reach.

First, the SC could refer the situation to the court. Others have already assessed the chances of this option in relation to events in northern Iraq and I will not go into the political dimension of this issue. Suffice it to say that an SC referral is extremely unlikely given current geopolitics. To name one factor in this respect, a US-led operation is active in the conflict and the US, a permanent member of the SC, would probably not want the ICC to get involved and potentially scrutinize this military effort. Moreover, it is hard to imagine how the ‘situation’ would be defined. The crimes committed by IS are closely linked to the Syrian civil war—in relation to which an SC referral failed earlier this year. Moreover, states not party to the statute would probably push for an explicit exclusion of jurisdiction over their nationals in the referral—a widely criticized standard clause that has been added to previous SC referrals (see Darfur and Libya).

Second, in the absence of an SC referral, the ICC prosecutor can use her proprio motu power to investigate. The court would then only have jurisdiction over the nationals of states that are parties to the Rome Statute. This would provide a way the foreign IS fighters could be prosecuted despite Syria and Iraq not being states parties. However, an even greater challenge with situational demarcation arises here. The statute makes a distinction between situations and cases. A preliminary examination or the initiation of an official investigation pursuant to Article 53(1) concerns a given situation, not a case. As the Pre-Trial Chamber reminded in the decision authorizing the Prosecutor’s proprio motu investigation in the Kenya situation, a case starts after the issuance of an arrest warrant or a summons to appear pursuant to article 58 of the statute (para. 44). Cases arise from situations. To prevent prejudiced or one-sided investigations, the SC or States Parties cannot refer cases, only situations. When the court’s jurisdiction is triggered by the proprio motu power of the Prosecutor and is based on the nationalities of alleged perpetrators, demarcation of the situation is not based on territorial jurisdiction but on personal jurisdiction. The situation under investigation is then technically demarcated exclusively by future events: the cases that may arise from it. This effectively puts the cart before the horse and renders the investigation of the situation highly biased and fragmented, because it already focuses on possible perpetrators when it should be looking into events more objectively at the situation stage.

While demarcation of a situation exclusively based on the active nationality principle is unusual, it is not unprecedented. The (recently re-opened) preliminary examination into the situation in Iraq concerns alleged responsibility of British troops for war crimes involving systematic detainee abuse in Iraq from 2003 until 2008. There are a number of factors, though, that make this situation less difficult to demarcate than a possible ICC inquiry into IS foreign fighters. First, the geographical parameters are better definable: the crimes allegedly occurred at 14 military detention facilities and other locations under the control of UK Services personnel in southern Iraq, as opposed to scattered over patches of two countries. Second, the examination focuses on UK nationals alone, not an array of different nationalities, leaving open the possibility of investigating the higher end of the hierarchy structure allegedly responsible.

With IS, this is trickier. While the IS leadership structure appears to be “largely dominated by foreign fighters“, those at the top end of the IS hierarchy are not from countries falling under ICC jurisdiction. In fact, the highest ranks are reportedly filled with Iraqi former Saddam loyalists, most of whom met a decade earlier when being held in the Camp Bucca prison in southern Iraq. This matters, because the ICC prosecutor’s policy is only to pursue those leaders bearing greatest responsibility. This is not to say that foreign fighters, even mid-ranking, could not still bear ‘greatest responsibility’ for a given crime, but when forced to focus on foreign IS fighters alone, it is possible that the most responsible amongst that so-defined group are not the most responsible for the crimes as such. The most responsible at the top of the IS hierarchy could remain untouched, which is—theoretically at least—not the case in relation to the situation in Iraq dealing with UK officials of all ranks. This focus on the most responsible is a prosecutorial policy, not a legal requirement, but it raises the question whether this policy must be applied within the ambit of those falling under the court’s jurisdiction or in the context of crimes committed by IS in general. The latter is most likely to be correct. This makes the court’s role questionable in relation to IS violence when centered on a select group of alleged perpetrators of lower ranks, and arguably, bearing less responsibility.

Given that the matter of foreign IS fighters is not manifestly beyond the court’s jurisdiction, it may very well be that the Prosecutor will proceed to phase two of a preliminary examination, which is its formal commencement (para. 80). Further analysis of the situation during this next phase will entail an assessment in relation to the statute’s (situational) gravity threshold—where the same question arises: what are the parameters of the ‘situation’?—as well as complementarity requirements, namely whether any potential cases arising from the situation would be admissible under Article 17. The latter includes gathering information on relevant national proceedings in the countries foreign fighters are from. In the spirit of the complementarity principle, this could mean that the court is (partially, depending on the country) barred from further action. There are a number of national jurisdictions that appear to be dealing with the issue of their nationals going abroad to fight for IS. For instance, prosecutions have been initiated and/or completed in the Netherlands, the UK, Jordan and Australia.

Expectations are often too high with respect to the ICC—a court of last resort with limited means and a restricted jurisdictional reach. The fact that the statute theoretically allows an ICC probe does not mean it is justified or realistic to proceed. Not only do the jurisdiction requirements create problems, the practical concerns are immense, too, bearing in mind the difficulties and danger involved with investigating in IS-controlled areas. Having said that, a mere possibility of a preliminary examination, or even a remark in a newspaper that the Prosecutor is considering starting one, can serve as catalyst for national prosecutions and definitely puts accountability for IS crimes on the international agenda. For now, perhaps that is all we should read into Bensouda’s words, because the only way IS atrocities can be dealt with comprehensively is if, in addition to national jurisdictions, the SC, Syria or Iraq take action to that end—the SC by referring the situation to the ICC and Syria or Iraq by acceding to the statute or accepting the court’s ad hoc jurisdiction.