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.
<http://www.diplomatmagazine.nl/2016/01/09/icc-prosecutor-fatou-bensouda-gives-a-tour-dhorizon-of-her-offices-work/>
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.
Bibliography:
Written by Ally L. Pettitt
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