Thursday, November 17, 2016

Bringing Terrorists to the International Criminal Court

Terrorism: a global issue

According to the Global Terrorism Database, from 2000 to 2015 there were more than 87,000 terrorist attacks around the globe. The number of attacks has been on the rise since 2013, especially in the Middle East and North Africa. With terror strikes ocurring on a daily basis - even though some of them receive considerably more media coverage than others, - there is an increased global interest in bringing perpetrators to court. But when national justice systems are too weak or simply lack the political will to deal with terrorist acts, one of the few remaining solutions is the International Criminal Court.

Civil society and human rights lawyers are asking: Why then isn’t the ICC prosecuting terrorist groups like ISIS? This post will suggest an answer to this question and analyze the possibility of bringing terrorists to the Court in the future.

Is terrorism under the jurisdiction of the ICC?

Courts such as the International Court of Justice, the European Court of Human Rights and the Inter-American Court of Human Rights all prosecute states. The ICC is different because it only prosecutes individuals. This makes it very appropriate for cases that involve non-state actors like terrorist groups. The people who ICC prosecutes are those who bear the biggest responsibility for a given crime. The ICC operates in this top-down fashion in order to hold accountable not just the foot soldiers, but those who truly authored and directed the atrocities.

However, the Rome Statute, which is the founding document of the ICC, does not refer to ‘terrorism’ explicitly. This is why scholars such as Aviv Cohen have proposed amending the Rome Statute to include the “Crime of Terrorism.”

But the problem with the word ‘terrorism’ is that there is no universal agreement on how to define it in international law and different treaties interpret it differently. According to a study at Leiden University, most definitions of terrorism agree that the main components are violence, political goals, causing fear and terror, and using organized actions or tactics. This definition can be refined to include the injury of civilians, coercion, arbitrariness, and so on.

Yet finding a definition of ‘terrorism’ that satisfies everyone is still a challenge because the word has many ideological implications and a strong symbolic effect of condemnation. It is said that “one person’s terrorist is another person’s freedom fighter,” and a perfect example for this double standard is Nelson Mandela, a Nobel Peace Prize winner and president of South Africa who was until 2008 on the U.S. terrorism watch list.

This disagreement on the definition was the reason terrorism was not included in the Rome Statute in the first place. Cohen’s idea is that the definition from the Convention for the Suppression of the Financing of Terrorism is already widely accepted in states’ legislation and practice and should be used for the inclusion of terrorism under a new article in the Rome Statute.

However, is it necessary for a person to be explicitly identified as a terrorist in order to be brought to the Court? Aren’t all of the crimes that terrorists commit already under the Court’s jurisdiction? The ICC can prosecute crimes against humanity (art.7), such as murder, torture, rape, enslavement, forcible transfer of population, etc. when they are “committed as part of a widespread or systematic attack directed against any civilian population.”

The Court also has applicable jurisdiction over war crimes (art.8), in the cases of international and non-international armed conflict, such as torture, taking of hostages, extrajudicial executions, sexual violence, intentional attacks on civilian population and religious or educational buildings or monuments. The Court can also prosecute genocide (art.6), in the sense of any act that intends to destroy a national, ethnical, racial or religious group. The last category of crimes in the Rome Statute is the crime of aggression, but it would not be applicable to terrorism because it only concerns acts of states.

Proponents of the inclusion of the “crime of terrorism” argue that what characterizes and distinguishes it is its intention to spread fear and achieve a political aim. However, should these subjective criteria be taken into account by the ICC when it decides whether an attack on civilians or torture should be prosecuted? Should the same crime receive different treatment depending on whether it was committed by a terrorist group for a political purpose or by another perpetrator?

An amendment to the Rome Statute would be problematic because as it is designed now, it dismisses the relativity of what terrorism can mean. It is difficult to use the same standard for state terrorism, armed groups terrorist attacks, acts by lone wolfs, and terrorism in the context of foreign occupation. Interpretation of these acts depends almost entirely on subjective opinion and ideology. The ICC as an international court is compelled to look at the objective facts of the crimes and not to express any value judgements.

It is important to recognize that some acts that we determine as terrorist may fall outside of the Court’s jurisdiction. Acts that would be considered war crimes in the context of an armed conflict (be it international or non-international) may be impossible to prosecute if they are committed during peace time. On the other hand, the acts which are committed during peace time may be classified as crimes against humanity only under the condition that they are “part of a widespread or systematic attack directed against any civilian population.” It may be difficult to establish that some acts of. terrorism meet this standard.

There is also the Statute’s high requirement of seriousness for the crimes it can try. This “gravity threshold,” could mean that one-time attacks that have not had many victims may not enter the Court’s jurisdiction, even if they have produced much fear and terror in the population. For example, the attacks at Charlie Hebdo in Paris in 2015 which killed 12 people may be regarded as terrorist but the ICC would not prosecute them even if it received a referral from France. The Court was created to prosecute only the most serious crimes and it would be a waste of resources for it to prosecute shootings around the world, as morally reprehensible as they might be.

Bringing terrorists to the ICC

It is important to note that the ICC has actually already prosecuted or issued arrest warrants for individuals defined as terrorists and has been able to do so by applying the crimes included in the Rome Statute without the need for a special article on terrorism. For example, the most recent sentence of the Court was on the case of Ahmad Al Faqi Al Mahdi, who belongs to the Al-Qaeda affiliate Ansar Dine in Mali. Al Mahdi was accused of intentionally directing attacks against religious and historic monuments in Timbuktu, Mali in 2012. This was classified as a war crime under article 8 of the Rome Statute, given the context of a “non-international armed conflict.”

Another infamous example is the case against Lord’s Resistance Army (LRA) in Uganda, another group that has been listed as terrorist by the African Union but that has been excluded from the U.S. State Department's list since 2001. In 2015, Dominic Ongwen, one of the top members of the LRA, confessed to the Court and now awaits his trial on over 70 charges of crimes against humanity and war crimes. Other top members, such as Joseph Kony and Vincent Otti, remain at large. This example speaks to the fact that the terrorism label could be an obstacle to prosecution if the Court relies only on whether a group can be legally defined as terrorist.

The precedent case against Al Mahdi for the destruction of the religious monuments in Mali which are UNESCO World Heritage sites has given the international community hopes that other similar crimes might be brought to the Court – the destruction of cultural heritage in the ancient Palmyra in Syria by ISIS in 2015 or the annihilation of 1,500-year-old Buddha sculptures in Afghanistan by the Taliban in 2001. However, the case of Palmyra would be more difficult to prosecute since Syria is not a member of the Court and the ICC can only prosecute crimes committed on the territory of a state party or by nationals of a state party. And while Afghanistan is a state party to the Rome Statute, the crime happened before the entry into force of the statute for that country, so it cannot be prosecuted. In general, international law professor Alex Whiting has argued that a second case about cultural heritage is unlikely at the Court because of its limited resources.

So is there nothing that the ICC can do about atrocities committed by ISIS in Syria and Iraq? Especially given that the destruction of cultural heritage is the least ISIS can be tried for: the UN Human Rights Commission has released reports on the atrocities committed by ISIS since 2014 and the list includes crimes against humanity, war crimes and genocide of religious minorities such as the Yazidis. Human Rights advocates such as Amal Clooney have been appealing for a long time to bring ISIS to the ICC for these crimes.

As we have already said, neither Syria nor Iraq are members of the Court. One option they have is ratifying the Rome Statute and accepting its jurisdiction retroactively, as for example Palestine, which was accepted as a member in December 2014 and deposited a declaration to allow jurisdiction back to June 2014 so as to cover the 2014 Gaza war. Another option is moving to accept the jurisdiction of the Court without becoming a state party, as Ukraine did after the Maidan protests and the events in Crimea and Eastern Ukraine. Neither of these options is likely for Syria or Iraq because of the lack of political will.

Another option, albeit an improbable tone, is to bring to Court any foreign fighters in ISIS who are nationals of state parties to the Court, assuming that they hold high enough positions to be held responsible for the crimes. Currently, the ICC is actually carrying out an investigation of this nature on the war crimes committed by UK soldiers in Iraq, since the UK is a member of the Court.

The only other option for entering the Court’s jurisdiction is a referral by the UN Security Council, which has happened in the cases of Libya and Darfur. This can be done only if the gross human rights violations are a threat to peace, and in the case of Syria this is certainly true. However, as journalist Harry Farley has pointed out, the Security Council is unlikely to do that because the ICC would not examine only the acts of ISIS but the whole geographic “situation” in Syria and Iraq. This would involve possible crimes by governmental, non-governmental and international forces, including the US, France and Russia - all of whom have veto powers in the Security Council. For the same reason, it is possible that Syria and Iraq face considerable international pressure against ratifying the Rome Statute.

In conclusion, terrorist acts do fit within the jurisdiction of the International Criminal Court when they involve widespread attacks or are committed within the context of an armed conflict. In those cases there would be no need for an amendment to the Rome Statute in order to prosecute because it already covers all the crimes that terrorist groups may commit, such as murder, torture, rape, taking of hostages, attacking civilian buildings, and so on. The only cases that the ICC may not be able to prosecute are one-time attacks that may not pass the gravity threshold even if they produce significant fear in the population.

The ICC has already tried chiefs and members of terrorist groups but there are other, political barriers to the prosecution of groups like ISIS. These involve the fact that Syria and Iraq are not members of the Court, that they are currently lacking the political will to join the Court and that they may face intense external pressure if they attempt to. Given the international deadlock on the war in Syria, there is little probability for investigations in the near future. Does that mean it is futile to advocate for bringing ISIS or other terrorists to the ICC? Most certainly not, since theoretically there are ways in which this can be done and mass international awareness, evidence-gathering and support for investigations might be able to put enough pressure on politicians to take the necessary measures.

Written by Iva Gumnishka


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