The shocking and brutal massacre which is taking place in this region is only a partial and superficial part of a more rooted and radicalized strategy that this ultra-extremist terrorist group has been carrying out and the United States and the ICC need to prosecute these acts as “most serious crimes of international concern”. (Art.1 of the Rome Statute)
United States national security strategy
The multilateral strategy that President Obama will announce in his national security plan on Wednesday, will be less powerful if it is not supported by the international prosecution of individuals that only the Court can carry out. It could do this much more effectively if the US joined the ICC.
ISIS terrorist conduct as a crime against humanity
The inclusion of terrorism within the jurisdiction of the Court is a highly debated topic addressed by various scholars, commentators and analysts and the literature on this topic is overflowing. However, there is a broader consensus on the inclusion of terrorism as a crime against humanity rather than a war crime or crime of genocide.
In fact, war crimes as defined in art.8 of the Rome Statute require the existence of an armed conflict and therefore, every serious act of terrorism should reach this threshold to be included in the list.However, others have noticed that two of the war crimes defined in Art.8, par.2, e (i), namely Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities and art.8, par.2, c (iii) taking of hostages can be easily accounted as acts of terrorism as they cover materially the same unlawful conduct.
Nevertheless, this category excludes all acts of terrorism committed in peacetime and thus, crimes against humanity seem a more appropriate class for this international crime if the terrorist act has been committed in a widespread or systematic way and pursuant to a State or organizational policy. (art. 7)
For instance, an act of terrorism whose gravity, scale and magnitude resembles the 9/11 massacre could be considered as a crime against humanity only if it was not isolated and the organization which planned it was expert enough to build such a sophisticated strategy. On crimes against humanity, in deciding to authorize an investigation in Kenya, the Pre Trial Chamber addressed the concept of “policy”. It clarified that the perpetrator of a crime against humanity must have “the capability to perform acts which infringe on basic human values” specifying, among other issues, the relevance of other elements such as hierarchy, the control of territory, financial support.
Accordingly, the ISIS atrocities since the beginning of June could be easily considered as a crime against humanity for the purpose of the Statute as it satisfies both the systematic attack requirement and the level of expertise and organization.
The number of casualties the ISIS caused between 2013 and 2014 and its brutal tactics - including mass killings and abductions of members of religious and ethnic minorities, as well as the beheadings of soldiers and journalists in Syria and in Iraq, meets the systematic attack requirement. Also the geographical distribution of territory it controls, (between 15,000 and 35,000 sq miles) shows the depth and extent of its organization. In terms of financial and military resources, the Islamic State is reported to have $2bn (£1.2bn) in cash and assets, and between 30,000 and 50,000 fighters.
Positive impact of the ICC prosecution of ISIS militants on the US’s counterterrorism policy if the United States ratifies the Rome Statute
The nature and complex definition of the crimes the ISIS is responsible for and its international implications and ramifications, show how much more effective a single international prosecution of this crime would be, when criminal domestic jurisdictions fail to do so or are not so effective to provide an acceptable level of national security.
This is true not only for issues such as the rights of the accused, the fairness of the trial and the detention conditions, but also the victims’ and witnesses’ protection which are appropriately guaranteed at the ICC.
When considering the risk of political manipulations and pressures, the ICC is an impartial and neutral arbiter and should avoid any political motivated prosecutions. In addition to that, the intervention of the ICC would benefit the American national interest in the case of suicide attacks as Art. 25 of the Rome Statute suggests. The responsibility of the terrorist act is shared between the perpetrator who cannot stand trial and his accomplices. The cooperative and constructive relationship between the United States government and the ICC should support a first step to fight the Isis threat; it could also be a way to show to Americans the value of the ICC thus building support for eventual America ratification of the Court Rome Statute.
Written for AMICC by Miriam Morfino