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
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