Wednesday, August 09, 2017

Accountability of Foreign Fighters

The atrocities taking place in Iraq and Syria are a serious concern to the international community. Islamic State (IS) has inevitably caused generations of harm to the region, and the impacts are being felt all over the world. The rise of foreign terror fighters (foreign fighters) has brought an international character to this conflict, highlighting the need to end impunity. This blog will discuss in depth the possible avenues for domestic and international accountability with respect to foreign fighters in IS.

Foreign fighters are a threat through their capacity to radicalize before returning to their country of origin, bringing with them traumatic experiences and the technical experience to engage in terrorist activities.  The National Bureau of Economic Research in England has claimed that the majority of the foreign fighters recruited by IS come from Tunisia, Saudi Arabia, Russia, Turkey and Jordan. Although in lesser numbers, many European and Western sovereign governments have acknowledged nationals fighting for IS; including the United Kingdom (UK), Finland, Italy, Canada and Australia.

While foreign fighters do continue to preset a significant threat to state security, they may also be used as a possible avenue for the International Criminal Court (ICC) Prosecutor to gain jurisdiction over the atrocities committed by IS. The Court’s role in the global fight to end impunity accentuates the significance of the ICC’s prosecution of crimes committed by IS. In 2015 the ICC Prosecutor, Fatou Bensouda, released a statement explaining the ICC’s jurisdiction over the alleged crimes committed by IS. The Prosecutor clearly articulated that while the crimes that are being committed in Iraq and Syria are of unspeakable cruelty; including rape, enslavement and possibly genocide; the Court does not have territorial jurisdiction because Syria and Iraq are not State Parties to the Rome Statute.

Fatou Bensouda, ICC Prosecutor
Image sourced from Diplomat Magazine.

Although the decline of IS has led to an exodus of foreign fighters from its ranks, returning foreign fighters provide the international community with an opportunity to hold members of IS accountable for their crimes. State Parties are obliged under the Rome Statute preamble to exercise criminal jurisdiction over those responsible for international crimes; specifically crimes against humanity, war crimes and genocide. Should a State Party fail to prosecute individuals for those crimes nationally, the ICC’s jurisdiction is activated under Art 17. 

The jurisdiction that is activated is the Court’s personal jurisdiction over State Party’s nationals, who are alleged perpetrators of statute crimes. It is the same avenue used by the Prosecutor to gain jurisdiction over the alleged war crimes committed by UK nationals in their military intervention in Iraq. Personal jurisdiction, as distinct from territorial jurisdiction, gives the Court jurisdiction over individuals from State Parties, as opposed to the territory of a State Party. In 2015 the Prosecutor noted foreign fighters from State Parties were active in the region, including nationals from Tunisia, Jordan, France, the United Kingdom, Germany, Belgium, the Netherlands and Australia.  Further, the Prosecutor highlighted the use of social media to publicize the atrocities committed by these foreign fighters, assisting the Prosecution’s evidentiary burden.

However, personal jurisdiction is not sufficient for the Prosecutor to begin a formal investigation or trial. The status of these foreign fighters is crucial; the Court’s understanding of the Rome Statute places particular emphasis on command responsibility. This is evident through a brief review of the ICC’s precedent; for example the ICC has convicted Thomas Lubanga, former President of the Union des Patriotes Congolais and Jean-Pierre Bemba, former President and Commander-in-chief of the Mouvement de liberation du Congo. In fact, Bemba was the first person convicted on command responsibility at the ICC.

The State Party nationals would also have had to commit crimes that meet the sufficient test of gravity required to initiate an investigation under Art 53(1)(c) and further to be admissible at trial under Art 17(1)(d). In both instances, the Pre-Trial Chamber and the Prosecutor must find that the alleged crimes are sufficiently grave to justify further action by the Court. Gravity was introduced into the Rome Statute to ensure that the ICC would only consider crimes of most serious concern in the international community. Although the term is not defined, the Prosecutor v. Thomas Lubanga trial determined that the test of gravity must consider whether the conduct was either systematic or large-scale, and the social alarm caused in the international community. Gravity is neither a strictly qualitative or quantitative evaluation. However, the alleged perpetrators status is relevant. An individual committing war crimes or crimes against humanity will cumulatively have less impact than those in command, and may not satisfy the systemic or widespread requirement. These characteristics more appropriately fit individuals with command responsibility, than foot soldiers.  

Although the Court is limited by territorial jurisdiction, the ICC’s inherent personal jurisdiction is crucial when discussing the accountability of foreign fighters. The Rome Statute requires that returned foreign fighters be investigated and tried in their nation of origin, and should a State Party fail to satisfy this obligation the Court has jurisdiction. This highlights the importance of sovereign nations ratifying the Rome Statute, by creating an obligation on State Parties to end impunity for international crimes domestically. In this instance, the Court is able to indirectly impose standards of international criminal law through soft measures; contributing to the Court’s objective in ending impunity.


Written by Ally L. Pettitt

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