International rights groups have condemned the brutality of the Islamic State in Iraq and Syria (ISIS), but how the group will be prosecuted for the alleged crimes it has committed remains unclear.
U.N. human rights chief Navi Pillay has said the crimes committed by ISIS would amount to crimes against humanity and war crimes under international law.
Prosecution of the group faces two main challenges, the inter-jurisdictional nature of their crimes, and the non-state status of the instigators.
Individual Criminal accountability
While ISIS’s international legal personality is unclear, individuals from the group can be tried for the crimes linked to the group.
“Individuals are held accountable for the crimes they have directly committed or for certain crimes committed by those under their command, under the principle of superior responsibility,” Cecile Aptel, Senior Legal Advisor to the U.N. High Commissioner for Human Rights, told Al Arabiya News.
“International criminal justice is about making the leadership accountable," she said in a telephone interview.
Ratko Mladic was indicted in 1995 by the International Tribunal for the Former Yugoslavia (ICTY) under the “individual criminal responsibility” provision Article 7 of the ICTY Statute.
He was charged as the “most senior officer” after the President of the Republika Srpska, the indictment read.
Article 25 of the ICC Statute also upholds individual criminal liability, which could disregard the group’s non-state status.
“As always, the initial analysis of jurisdiction over such crimes should be the domestic courts,” Seth Engel, a lawyer specialized in international criminal law said.
“However, most national courts are not equipped to handle such cases, and national laws in most countries do not include provisions regarding these heinous crimes,” he told Al Arabiya News.
By recognizing and accepting the jurisdiction of the ICC, states allow the “ICC Prosecutor to investigate for all crimes against humanity and war crimes potentially committed on the territory of the state, by any actor, during a specified time period,” Engel explained.
Should the Security Council refer the issue to the ICC, “it is therefore nearly unthinkable that Syria will voluntarily accept jurisdiction given the actions of the current regime, and permanent members of the U.N. Security Council have already vetoed any such resolution four times,” he said.
As for Iraq, should the new government grant the ICC jurisdiction, arrest warrants could be applied for hastily.
If the United States decides to go beyond the recent airstrikes targeting ISIS-held positions by sending troops, which Engel called highly unlikely, “we could actually see U.S. troops executing these warrants,” he said in an email.
An independent tribunal?
As the political circumstances make it unlikely that the ICC will try these crimes “it would make sense to have a separate international tribunal established,” a U.N. official who spoke on condition of anonymity told Al Arabiya News.
“If it is a separate an international tribunal then the jurisdictional issues can be easily disposed of in technical ways,” the official said.
Engel said that the establishment of such a tribunal would require “much political will and the commitment of heavy resources from many actors including the U.N. and potentially the EU, the Arab League, and the U.S.”
However, “such courts can last for more than 20 years and consume millions if not billions of dollars,” Engel said.
“This could be particularly difficult in the context of the notoriously slow and corrupt Iraqi judicial system,” he added.
On whether the establishment of an independent tribunal for the crimes committed by ISIS in Syria in Iraq is feasible, Engel said “a hybrid tribunal …could be envisaged, which seek to combine judicial and legal actors of both the relevant domestic jurisdictions with the know-how and legal knowledge of the international community,” Engel said.