Justice for ISIL Victims Part 2: A Jurisdictional Perspective

As the national judicial systems in Iraq and Syria are unable to respond to demands for justice from victims of ISIL, the international community has to fulfill its responsibility in promoting accountability for crimes committed by the jihadist group. This is particularly the case for states whose nationals have been implicated in some of the most heinous crimes committed by ISIL members. It is estimated that over 41,000 foreign nationals¹ from 80 countries have traveled to Iraq or Syria to join ISIL. Overwhelmed with the burden of carrying for and guarding thousands of ISIL members in detention, Kurdish authorities in northeastern Syria have proceeded to release² thousands of women and children that were detained during the battle against ISIL and lived in inadequate and overcrowded detention camps. There are a number of avenues that may be pursued to attain justice and advance accountability, including referral to the International Criminal Court (ICC), establishment of a regional or ‘hybrid’ tribunal, and exercise of universal jurisdiction by states.

While referral to the ICC appears to represent a viable option for the prosecution of ISIL members, there are a number of obstacles that would have to be overcome. Most notably, neither Syria nor Iraq are party to the Rome Statute and the court does, therefore, not have territorial jurisdiction over the situation in these states. The ICC may, however, exercise jurisdiction if (a) the UN Security Council acting under UN Charter Chapter VII powers refers the situation, (b) the ICC prosecutor (soon to be former UNITAD head Karim Khan) initiates an investigation proprio motu, or (c) if a state party whose nationality the suspect holds accepted the jurisdiction of the ICC. While ISIL constitutes a ‘threat to international peace and security’ as affirmed by UN Security Council resolution 2253 (2015), the first scenario is unlikely due to the unwillingness³ of some Security Council members, namely Russia and China, to refer the situation to the ICC. This would also open the door for investigations into actors other than ISIL active in the conflict, including anti-ISIL coalition members. With respect to the second scenario, ICC Prosecutor Fatou Bensouda, in 2015, issued a statement⁴ expressing reluctance to initiate investigations as the court’s purpose is to prosecute the most serious crimes, which have been committed by Syrian and Iraqi nationals. She also emphasized that ultimately the decision of non-party states to accept jurisdiction is independent of the court. The third scenario, which would infer personal jurisdiction over crimes committed by citizens of states that are party to the Statute, is also unlikely due to the complementarity principle. Lastly, referral to the ICC also poses serious operational and financial challenges to prosecuting a high number of suspects given the enormous resources that would be required.

In light of the political and operational challenges in pursuing justice through the ICC, the establishment of an ad hoc regional criminal tribunal may offer another avenue to hold ISIL members accountable for their crimes. For instance, the Swedish government hosted a high-level meeting⁵ to explore the possibility of such a regional tribunal and introduced legislation that would allow its government to assist other actors, such as UNITAD, seemingly seeking to avoid repatriation and to achieve prosecution of its nationals outside of the country.

Mindful of ISIL’s ideological dimension, the possibility of the establishment of a ‘hybrid’ tribunal⁶ has been explored. The tribunal would draw on a combination of secular international criminal law and procedural rules and on relevant norms of Islamic international criminal law as its legal basis. Complementing the hybrid legal framework, it is proposed that the tribunal be situated in the Middle East and be composed of an equal share of practitioners of the Islamic legal tradition. Doing so would award the tribunal with greater legitimacy among Islamic communities and counter the narrative and misleading interpretation of Sharia law promoted by ISIL. ISIL claims that secular laws, including treaty law enshrined in the Geneva Conventions and Hague Conventions are the law of infidels (takfir). Islamic legal scholars have an important role in dispelling these claims and in emphasizing that the actions purportedly carried out in the name of Islam are in violations of the very principles of Islamic law they profess to adhere to.

Another proposal, which would focus on terrorism-related crimes, is the establishment of a treaty-based court⁷, whereby states whose nationals are implicated in such crimes “pool their jurisdiction” to form a tribunal. Jurisdiction in this case would be based on the active personality principle, allowing most states to prosecute their nationals for terrorism-related crimes under domestic law.

Pursuant to the principle of ‘universal jurisdiction,’ whereby national prosecutors can lead prosecutions against individuals responsible for serious crimes, including genocide, crimes against humanity, and war crimes, irrespective of territorial or personal linkages to the crime, other states can promote justice for ISIL atrocities. Germany, in particular, is well positioned to try international crimes under its laws incorporating universal jurisdiction⁸ and has taken significant steps in repatriating and prosecuting its nationals that have joined ISIL. Having garnered a lot of publicity due to the fact that the suspect is a female ISIL member, Germany has taken on the case of Omaima A.⁹, who is accused, among other things, of holding a 13-year old Yazidi girl as a slave. Enslavement constitutes a crime against humanity under the German Code of Crimes Against International Law¹⁰, which provides the domestic legal framework for exercising universal jurisdiction. Germany commenced the first Yazidi genocide trial¹¹ in April 2020, and it also sentenced¹² a German woman to five year in prison for her membership of ISIL. Despite these efforts, the Yazidi Women’s Council has filed a lawsuit against the German justice and interior ministers, accusing them of failing to repatriate and prosecute¹³ German ISIL members held in Kurdish custody in Syria.

The case of the four British ISIL members dubbed “The Beatles” is illustrative of some of the jurisdictional challenges emerging when attempting to prosecute ISIL members at the national level. While one of the four men was killed in combat in 2015 and another one convicted in a trial in Turkey in 2017, the two remaining members, El Shafee Elsheikh and Alexanda Kotey, were transferred for prosecution to the U.S. A request by the U.S. to the UK for information- and evidence-sharing has been deemed a violation of the European Convention on Human Rights and its Sixth Protocol¹⁴ concerning the abolition of the death penalty due to the risk of a conviction resulting in the death penalty.

Similar concerns also arise with regards to retaining foreign nationals, particularly of EU member states, to face prosecution in Iraq. Most states have expressed reluctance to repatriate and prosecute their nationals and in some cases returned ISIL members reported that they were able to avoid legal consequences. The UK and France, in particular, have shied away from meeting their obligations in returning their nationals and in ensuring accountability for their crimes. In February 2019, France, for instance, reached an agreement¹⁵ with the Iraqi government that the latter would try French nationals in accordance with Iraqi domestic law. There have been reports¹⁶ that Iraq would commute the death sentence for French nationals were the French government to pay millions, though they were denied by authorities from both countries.

States claim that they have insufficient evidence to charge returnees for terrorism crimes, and much less so, for international crimes. Thus, a key challenge in pursuing justice through extraterritorial jurisdiction is the accessibility of crime scenes—Syria’s conflict is ongoing and Iraq continues to experience significant insecurity—and the availability of evidence that would uphold the scrutiny of judicial proceedings. While the UN Security Council established in 2017 the UN Investigative Team for Accountability of Da’esh/ISIL (UNITAD)¹⁷ to collect and preserve evidence of genocide, crimes against humanity and war crimes, its mandate clearly states that these are to be used for criminal proceedings in Iraq and sharing of evidence for proceedings in other national courts would have to be determined by the Iraqi government “on a case by case basis.” Interestingly, France of all actors has been particularly vocal about its opposition¹⁸ to UNITAD sharing evidence with Iraq due to concerns over the death penalty.