Islamic State at the International Criminal Court: Prosecutorial Challenges

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Islamic State at the International Criminal

Court:

Prosecutorial Challenges

Veronika Rokavec, 12141097

veronika.rokavec@student.uva.nl

Master’s in European and International Law Track: Public International Law

Supervisor: prof. dr. Harmen van der Wilt Submitted: 1 July 2019

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Abstract

Islamic State (IS) emerged from widespread chaos in the region, which enabled the group to expand and even thrive. The objective of this thesis is to identify and analyse the obstacles arising from bringing IS fighters to justice before the ICC, which was established as a permanent world court to hold accountable perpetrators of the most serious crimes which concern the whole international community.

With the help of descriptive research, I analysed the historic background of ISIS and the circumstances surrounding its existence and eventual demise. First, I discussed the Court’s jurisdiction ratione materiae. Focusing on the crimes committed against the Yazidis, I argued that the fighters, possessing required intent, committed all the acts constituting the crime of genocide. Moreover, precondition for commission of war crimes, existence of a (non)international armed conflict, is fulfilled. Hence, IHL rules applicable in NIAC were relevant in this situation. Furthermore, widespread and systematic attacks committed against the civilian population constituted several crimes against humanity under article 7 of the Statute. In the fourth chapter, I addressed several obstacles preventing the Court from asserting its jurisdiction. I commenced with the most obvious, the UN Security Council referral (article 13(b) of the Rome Statute) and continued to discuss importance of the fighters’ nationality (article 12(2)(b)). Moreover, in the light of the recent decision by the Pre-Trial Chamber on deportation of the Rohingya from Myanmar, I determined that it is hard to compare the situation since Syria and Iraq is more complex and there are several possible culprits for the crimes committed in the conflict. Last but not least, I briefly assessed possible alternatives to the ICC, an ad hoc tribunal, principle of universal jurisdiction and national prosecution in the home States of foreign fighters.

I conclude with the observation that whilst the ICC is not necessarily the best possible solution to all the problems in Syria and Iraq, it is still undoubtedly essential to ensure accountability for the crimes, and the ICC is without a doubt a venue where justice for the victims could be ensured. Simultaneously, there exist other international mechanisms to bring satisfaction to the Yazidis, such as an ad hoc tribunal that would definitely work more efficiently and could prosecute a much bigger number of perpetrators in comparison to the ICC, which deals with “those most responsible” for the commission of the crimes.

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Acknowledgements

I would like to first express appreciation to my thesis supervisor Prof. Dr. H. van der Wilt. He allowed this dissertation to be my own work, but always directed me in the right way whenever needed. During my writing, Prof. van der Wilt contributed to my research and work with his extensive expertise on the subject. Most importantly, his kindness and knowledge steered my interest toward International Criminal Law.

At the same time, I must express my profound gratitude to my parents, especially my father, my grandparents, particularly my grandmother, and my best friend Rubén for providing me with support and encouragement throughout my master’s program and through the research and writing process. This accomplishment would not have been possible without them.

Veronika Rokavec

I firmly believe that there can be no lasting peace in a society unless the criminal justice system is allowed to take its course. – Carla del Ponte

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List of Abbreviations

AO – advisory opinion

AQI – al Qaeda in Iraq

CAH – Crimes against humanity

GSIJ – Guernica Centre for International Justice ICC – International Criminal Court

ICJ – International Court of Justice

ICRC – International Committee of the Red Cross ICTR – International Criminal Tribunal for Rwanda

ICTY – International Criminal Tribunal for the Former Yugoslavia IHL – International Humanitarian Law

IAC – International armed conflict IS – Islamic State

ISI – Islamic State of Iraq

ISIS – Islamic State of Iraq and Syria NIAC – Non-international armed conflict OTP – Office of the Prosecutor

PTC – Pre-Trial Chamber UN – United Nations

UNGA – United Nations General Assembly UNC – Charter of the United Nations UNSC – United Nations Security Council US – United States

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List of International Documents

Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277.

Human Rights Council, ‘“They Came to Destroy”: ISIS Crimes Against the Yazidis’ A/HRC/32/CRP.2.

ICC, ‘Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the Alleged Crimes Committed by ISIS’

OHCHR, ‘Report on the Human Rights Situation in Iraq in the Light of Abuses Committed by the So-Called Islamic State in Iraq and the Levant and Associated Groups’ (2015) A/HRC/28/18

OTP, ‘Policy Paper on Case Selection and Prioritization’ (2016) <https://www.icc-cpi.int/itemsDocuments/20160915_OTP-Policy_Case-Selection_Eng.pdf> accessed 4 June 2019

‘Resolution 2255’ (2015) UN Doc. S/RES/2255

Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3.

‘Seventeenth Commission: Universal Criminal Jurisdiction with Regard to the Crime of Genocide, Crimes against Humanity and War Crimes’ (Institute of International Law 2005) UN War Crimes Commission, ‘Developments in the Concepts of Crimes against Humanity, War Crimes and Crimes Against Peace’, History of the United Nations War Crimes Commission and the Development of the Laws of War (His Majesty’s Stationery Office 1948)

UNSC, ‘Referral of Syria to International Criminal Court Fails as Negative Votes Prevent Security Council from Adopting Draft Resolution’ (2014) SC/11407

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List of cases

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) [2007] ICJ Judgment, I.C.J. Reports 2007, p. 43

Arrest Warrant Case (DRC v Belgium) [2002] ICJ Judgements, I.C.J. Reports 2002, p. 3 Case Concerning Armed Activities on the Territory of the Congo (DRC v Rwanda), Jurisdiction of the Court and Admissibility of the Application [2006] Rep 2006 6 (ICJ)

Decision on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute” [2018] Pre-Trial Chamber ICC ICC-RoC46(3)-01/18

Prosecutor v Akayesu, Judgement [1998] ICTR ICTR-96-4-T Prosecutor v Jelisić [1999] ICTY IT-95-10-T

Prosecutor v Karadžić et al Consideration of the indictment [1996] ICTY 5-R61, IT-95-18-R61

Prosecutor v Krstić [2004] ICTY IT-98-33-A

Prosecutor v MilomirStakić [2006] ICTY Appeals Chamber IT-97-24-A Prosecutor v RadislavKrstić [2001] ICTY Trial Chamber IT-98-33-T Prosecutor v Tadič [1999] ICTY IT-94-1-A

Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion) [1951] I.C.J. Reports 15, p 23

Situation in the DRC [2006] ICC Pre-Trial Chamber ICC-01/04 SS Lotus (France v Turkey) [1927] PCIJ Series A. No. 10

The Legality of Threat or Use of Nuclear Weapons, Advisory Opinion [1996] ICJ Rep 1996, p. 226

The Prosecutor v Athanase Seromba [2008] ICTR Appeals Chamber ICTR-2001-66-A The Prosecutor v Bosco Ntaganda (Judgement on the Prosecutor’s Appeal) [2016] ICC ICC/01/04-02/06

The Prosecutor v Brđanin, Judgement [2004] ICTY IT-99-36-T

The Prosecutor v Ignace Bagilishema, Judgement [2001] ICTR Trial Chamber I ICTR-95-1A-T

The Prosecutor v Jean-Pierre Bemba Gombo [2009] Pre-Trial Chamber II ICC ICC-01/05-01/08

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The Prosecutor v Laurent Semanza [2003] ICTR Trial Chamber III ICTR-97-20-T The Prosecutor v Stakić [2003] ICTY IT-97-24-T

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Chapter 1: Introduction

The Islamic State (IS) represents an unprecedented challenge to International Criminal Law. It is a hybrid organization, possessing state as well as non-state characteristics. Other non-state actors have been executing limited periodic attacks. In contrast, IS was an organization exercising control over a vast territory for several years, spreading even over State borders, offering several State services, collecting taxes from civil population and at the same time committing various attacks on basic human dignity.

For many a picture of two men, one dressed in an orange jumpsuit kneeling on the ground and a man dressed all in black, a mask covering his face, with a knife in his hand, became the symbol of the IS itself and a proof of its barbarity. The video of the beheading of the photojournalist James Foley was posted on the internet in August 2014 and was widely spread within minutes over social media. With it, the threat of IS and the fear of the group became real. IS was the first terrorist group that took advantage of the internet with such such success and managed to capture the attention of the world audience by widely broadcasting their brutality. Emerging seemingly out of nowhere, it gave the impression that this group caught the world completely unprepared and unequipped to tackle such a threat to international peace and security. But there is an explanation as to why IS came to exist: it materialized out of chaos and it was the continuing chaos that provided the group with the best chances to persist and expand. In 2010, under a new leader, Islamic State of Iraq (ISI) announced its expansion into the neighbouring Syrian Arab Republic and became known as the Islamic State of Iraq and Syria (ISIS). It is very likely that history of Western involvement in the region provided ISIS with ammunition to present itself as the saviour of Islam. Nevertheless, it seems that ideology has not been the primary, or the only, factor in locals’ decision to side with the group. Years of suppression and discrimination led many Sunni Muslims to decide that living under the Caliphate is still better than the oppression they were facing in the years before the group’s presence in the region. Since its emergence, the group has been accused of causing significant number of deaths, injuries, and property destruction - their actions have been characterized as violations of international human rights and international criminal law. Given the gravity of the atrocities committed by the group, questions as to how those responsible will be held accountable were to be expected. In the light of indicated reservations towards the national judicial system by the Yazidi community, the International Criminal Court (ICC) stands as the

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obvious forum of last resort where the accused could stand trial and be brought to justice. However, such prosecution possesses several challenges.

In January 2019, it became clear that ISIS’ days as a territorial entity were numbered. Later that month, the Vice President of the United States, Mike Pence, announced that “the caliphate has crumbled, and the Islamic State has been defeated.”1_{Now that the war is finally}

over, there has to be progress on justice and perpetrators of international crimes must face the charges. This thesis is written in the months following the so-called victory over the notorious terrorist group and it attempts to analyse challenges and obstacles of bringing its members to justice.

Under the Rome Statute, which established the ICC, Iraq and Syria have the first crack at prosecuting ISIS members. The Court only intervenes when a country cannot or will not hold to account perpetrators of international crimes. Yet, the main challenge the ICC is facing in this situation is how to enforce its jurisdiction. This is because it entirely relies on international community and state party cooperation to execute its judicial functions. While the Statute seeks to reach a compromise between the competing interests, namely sovereignty and the international rule of law, these challenges could represent a barrier to prosecution of ISIS members before the ICC.

In this dissertation, I will briefly describe historic background of ISIS, how and why it grew into such a terrorist giant. In the third chapter, after description and legal categorization of crimes under the jurisdiction of the ICC, I will focus on analysis of the atrocities committed against the Yazidis. Lastly, I will discuss prosecutorial obstacles accompanying the desire to bring the perpetrators to justice before an international criminal forum.

1_{Mike Pence Says ISIS Has Been Defeated as US Troops Are Killed in Syria (2019)}

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1.1. Methodology and Thesis Outline

The research objective of this thesis is to identify and analyse the prosecutorial challenges arising from bringing the perpetrators of international crimes in Syria and Iraq to justice. With the help of descriptive research, I will briefly analyse the historic background of ISIS and circumstances surrounding its existence and eventual demise. In the light of the Rome Statute, I will focus on how the situation could be brought before the ICC. First, I will discuss core crimes under the Statute, its jurisdiction rationemateriae, and in the fourth chapter I will address several obstacles preventing the Court from asserting its jurisdiction. I will commence with the most obvious of three triggering mechanisms, the UN Security Council referral (article 13(b) of the Rome Statute) and continue to identify importance of the nationality of the ISIS members (article 12(2)(b)). In the light of the recent decision by the Pre-Trial Chamber (PTC) on deportation of the Rohingya from Myanmar, I will discuss whether it can influence future developments regarding ISIS. Last but not least, I would like to assess and discuss possible alternatives to the ICC that could bring relief and justice to the victims of the Islamic State.

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Chapter 2: Historical Background of Islamic State

Before an in-depth exploration of the prosecutorial challenges regarding this new phenomenon in the international legal and political arena, it is necessary to lay a foundation for understanding origins and evolution of ISIS. The organization grew out of a sequence of events, namely the 2003 Iraq invasion, the Arab Spring and the Syrian civil war. It is clear that emergence of the Caliphate is a distinct product of its time, yet it is a result of a lengthy process that I would like to briefly explore in this chapter. The paramount idea behind the group’s strategy was an establishment of a global Muslim community presented as a solution to the rejection of state-cantered international system.2

2.1. Origins of the Islamic State

The world suddenly awakened to the threat of ISIS in the summer of 2014, although the story began years earlier with Abu Musab al Zarqawi. He was a Jordanian thug who adopted a particularly brutal approach to the understanding of jihad. To the people in his home town he was known as a heavy drinker covered in tattoos,3_{two practices forbidden by Islam. In his}

early twenties, he decided to “cleanse” himself of his crimes and with that purpose joined Tablighi Jamaat, a South Asian Islamic organization.4_{It seems imprisonment in the 1990s}

played a crucial role for al Zarqawi, since he, upon his release, participated in the plan to bomb two Christian holy sites, the so called Millennium Plot.5_{The bombing was prevented and he}

managed to escape to Afghanistan, where he met Osama bin Laden for the first time.

Various factors contributed to the emergence of ISIS, but the roots lie in the response to the 2003 invasion of Iraq by the United States, which created a suitable environment for Zarqawi’s brutal and violent tactics.6_{The following year, Zarqawi declared alliance to Osama}

2_{Willem Theo Oosterveld and others, The Rise and Fall of ISIS: From Evitability to Inevitability (Hague Centre}

for Strategic Studies 2017), p 11.

3_{Rukmini Callimachi, ‘The Horror Before the Beheadings’ The New York Times (19 January 2018)}

<https://www.nytimes.com/2014/10/26/world/middleeast/horror-before-the-beheadings-what-isis-hostages-endured-in-syria.html> accessed 9 May 2019.

4_{Jessica Stern and JM Berger, ISIS: The State of Terror (William Collins 2015), p 14.}

5_{Thomas Carothers, ‘The End of the Transition Paradigm’ (2002) 13 Journal of Democracy, p 5ff.} 6_{Stern and Berger (n 4), p 13ff.}

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bin Laden and the new jihadist movement became commonly known as al Qaeda in Iraq (AQI).7_{The group took advantage of the internet and started posting videos of beheadings,}

which were soon marked its trademark. The campaign of horror on the internet started with the beheading of Nicholas Berg, an American businessman who was captured by AQI in 2004 and was murdered by al Zarqawi himself.8

In 2006, when Zarqawi was killed, many hoped that his death would change the situation on the ground in Iraq.9_{Not only did these hopes go unfulfilled, but the picture of his}

dead body taken by the US Defence Department was used by al Qaeda’s online supporters in tribute to his martyrdom.10_{The group took advantage of the expressed support and within a}

few months announced the formation of Islamic State of Iraq (ISI) under a new leader Abu Omar al Baghdadi.11_{ISI transformed from an insurgent group into a military-political actor}

responsible for governing a territory. By late 2006, it reached its financial self-sufficiency, raising anything between $70-200 million per year.12_{The idea to establish a jihadi group in}

Iraq was defeated by the next year; however, ISI commenced a series of strategic moves that favoured its continued relevance, such as relocating ISI leaders to the city of Mosul.13

2.2. Rise of Islamic State

Year 2010 marked a new turning point when ISI acquired a new leader, operating under the nom de guerreAbu Bakr al Baghdadi, who declared an expansion into the neighbouring state, the Syrian Arab Republic. This was accompanied by the group becoming known as the Islamic State of Iraq and Syria,14_{abbreviated with the now notorious acronym ISIS. In Syria,}

ISIS found an inviting set of circumstances due to the previously existing divide between the

7_{Ibid, p 21.} 8_{Ibid, p 2.} 9_{Ibid, p 26.} 10_{Ibid, p 26ff.} 11_{Ibid, p 27.}

12_{Matthew Levitt, ‘Declaring an Islamic State, Running a Criminal Enterprise’ The Hill (7 July 2017)}

<https://thehill.com/blogs/pundits-blog/211298-declaring-an-islamic-state-running-a-criminal-enterprise> accessed 10 May 2019.

13_{Brian Fishman, ‘Redefining the Islamic State: The Fall and Rise of Al-Qaeda in Iraq’ (New America Foundation}

2011), p 9.

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Sunni majority and the ruling Shia minority.15_{There was also a chance to exploit ongoing}

political chaos and sectarian violence. Soon, what were previously peaceful demonstrations against the government sprung into a full-blown civil war.16_{Ultimately, all these developments}

enabled al Baghdadi to extend his control over vast territories on both sides of the border,17_{which sat well with ISIS’s strategy to not only last, but to also expand.}18_{As a}

consequence of the idea about a “state”, there was a strategy, on the one hand, to win the hearts of the local civilians with providing social services and public goods. On the other hand, it was a system characterized by violence and repression against the very same population.19_To

clarify, ideology has not been the primary reason for the local people to side with the group, on the contrary, the main factor was years of suppression of Sunnis under Shia and the idea that life under ISIS would be better.20

A remarkable characteristic that made ISIS so threatening was without any doubt its publicity, since it succeeded in spreading its message to the world audience. As seen with AQI, jihadist propaganda had a relatively long history by then, but it was mostly limited to the true believers. With ISIS, though, the gruesome videos were suddenly everywhere. The skilful marketing techniques adopted by the fighters were not only an important factor in terrorizing the world, but they also conquered an arena no other terrorist group had conquered before – social media.21_{It is very likely that without digital technology ISIS would never have come}

into existence, let alone be able to survive and expand as it did.22

On 29 June 2012, al Baghdadi declared rebirth of a “worldwide Caliphate”, an institution that was formally abolished in 1924 by Mustafa Kemal Atatürk.23_{Accordingly, all}

Muslims living across the globe now owed alliance to the new caliph, which fuelled controversy among the community due to the small number of believers naming the caliph. In

15_{Oosterveld and others (n 2), p 7.}

16_{Abdel Bari Atwan, Islamic State: The Digital Caliphate (Saqi 2015), p 79.} 17_{Oosterveld and others (n 2), p 8.}

18_{Ibid, p 11.} 19_{Ibid, p 11ff.} 20_{Ibid, p 11.}

21_{Stern and Berger (n 4), p 125.} 22_{Atwan (n 16), p ix.}

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a faith counting more than a billion and a half members, acclaim of a caliph by ISIS is definitely not seen as appropriate.24

However, the most important in understanding ISIS as a group is that not everyone has the same motivation for participating in its acts.25_{The group is a Salafist organization, which}

means it is by definition a Sunni organization believing that the correct way to practice Islam is as it was practiced by the first generations of Muslims. However, as it was described by Lina Khatib: “Ideology is not the group’s primary purpose; it is a tool to acquire power and money.”26_{Nonetheless, being a Salafist group in itself does not necessarily equal violence.}

Yet, those labelled Salafi-jihadis enforce the religion by violence, which in their view absolves them from sin as well as bringing honour to the fighters.27_{Moreover, ISIS perceives as an}

enemy any variation of the religion, such as the Shia Islam for example, to which most of the Iraqi army belongs. Opposition to aggressive Shia expansion in the region is one of the primary aims of the group.

Given the above, ISIS sees itself as the fighter for the real Islam and is trying to prepare its warriors to proudly face judgement day. In this belief, as the army of righteous, it can take actions that no other group could have taken before, and this is crucial to understand why it behaves in a way that nearly all other Muslims reject.28

2.3. Fall of ISIS

It has been argued that the most likely cause for demise of the Caliphate will be the fact that “the nation-state as an organizing principle will continue to prevail,”29_{and thus there will}

be no space for an organization like ISIS in Syria and Iraq. Moreover, the group was under heavy pressure and attacks by coalition forces and their losses continued to pile up. As a result,

24_{Brian L Steed, ISIS: An Introduction and Guide to the Islamic State (an imprint of ABC-CLIO, LLC 2016), p}

17.

25_{Ibid, p 17.}

26_{Lina Khatib, ‘The Islamic State’s Strategy: Lasting and Expanding’ [2015] Carnegie Middle East Centre, p 14.} 27_{Steed (n 24), p 18.}

28_{Ibid, p 18.}

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new military leadership was needed to replace losses fast and provide several necessary services, such as medical care.

It was clear for a while that the end of the Caliphate and ISIS as a proto-state will come once the group no longer controls any territory. In March 2019, Syrian forces liberated the last territory held by ISIS; before the end of the month complete capture of the area and the end of the territorial Caliphate was announced.30_{Yet, it is misleading to measure the danger posed by}

the group solely in terms of controlled land.31_{ISIS as a movement will only be defeated once}

it will no longer be able to carry out terrorist campaigns or propaganda war.32_{ISIS’s loss of}

territory may seem as a victory to coalition forces, but for the group it is a return to a previous phase in which they became a Sunni insurgency consisting of a combination of guerrilla warfare and terrorism.33_{Moreover, according to the media, al Baghdadi and his closest}

supporters are not yet captured.

30_{Reported by several news outlets, such as the Guardian, CNN, BBC, USA Today.}

31_{‘A Perspective on the Transformation of ISIS Following the Fall of the “Caliphate”’ (National Coordinator for}

Security and Counterterrorism 2018), p 7.

32_{Ibid, p 6.} 33_{Ibid, p 6.}

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Chapter 3: International Crimes

There are few international crimes which were not committed during the conflict in Syria and Iraq. With intervention of the international community, these acts seem only to have worsened. Nevertheless, the international actors have mainly remained unable to stop, investigate or prosecute any of the atrocities.34

The main actor on the ground, ISIS, has been considered to be “a threat to international peace and security”35_{by the UNSC since 2015. Several sources, ranging from media outlets to}

non-governmental organizations, have published reports on human rights abuses and (international) crimes committed by the group.36_{In 2015, the UN as well observed that ISIS}

had perpetrated war crimes, genocide and crimes against humanity against several ethnic and religious groups.37

As mentioned above, it has been debated what role, if any, International (Criminal) Law should play when addressing this unprecedented threat to international peace and security. Which is why I will briefly analyse relevant international crimes as defined in the Rome Statute of the International Criminal Court. Last but not least, I wish to focus on the crimes committed against the Yazidis and determine whether those atrocities meet the criteria for individual criminal responsibility for the crime of genocide under international law.

34_{Ingrid Elliott, ‘“A Meaningful Step towards Accountability”?’ (2017) 15 Journal of International Criminal}

Justice 239, p 239ff.

35_{UNSC ‘Res 2255’ (22 December 2015) UN Doc. S/RES/2255.}

36_{News outlets from all over the world as well as NGOs have been reporting on the abuses committed by the}

group.

37_{OHCHR, ‘Report on the Human Rights Situation in Iraq in the Light of Abuses Committed by the So-Called}

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3.1. Crimes under the Rome Statute

Crimes within the Court’s jurisdiction are described in the Preamble as “unimaginable atrocities that deeply shock the conscience of humanity”38_{and as “such grave crimes”}39_{, which}

suggests a qualitative criterion for inclusion of the acts in the Statute. However, there is a more positivist approach to understanding the crimes that fall under jurisdiction of the ICC. Essentially, the crimes are punishable because those who adopted the Statute decided that they should be included within the Court’s jurisdiction.40

Under article 12(1) Rome Statute, a State party accepts jurisdiction ratione materiae over “the most serious crimes of international concern”,41_{namely the four types of acts referred}

to in article 5 of the Statute, of which three will be explored in detail below. Most importantly, regardless of the atrocities committed by the group, the actions must nevertheless meet the internationally acknowledged definitions of the crimes that give rise to individual responsibility under international law.

3.1.1. Genocide

Genocide is in a way an elevated form of a crime against humanity and it is considered as the crime of crimes.42_{Yet, modern law on genocide is not very old, as it emerged from}

thinking that historically speaking genocide has mainly gone unpunished. There is a quite simple explanation to this, mainly that genocide was normally committed under direction of the State and thus domestic prosecution was not an option. This began to change at the end of the WW I with the development of legal norms protecting individuals against crimes committed by the State.43_{Still, the term “genocide” was adopted relatively late by Raphael}

Lemkin in 1944.44_{He constructed the term from two words, namely genos, meaning “race”,}

“nation” or “tribe” in ancient Greek, and caedere, meaning “to kill” in Latin.45

38_{Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187}

UNTS 3, preamble.

39_{Ibid, preamble.}

40_{William Schabas, The International Criminal Court: A Commentary on the Rome Statute (Second edition,}

Oxford University Press 2016), p 40ff.

41_{Rome Statute (n 38), art 1.}

42_{William Schabas, Genocide in International Law: The Crime of Crimes (2nd ed, Cambridge University Press}

2009), p 15.

43_{Ibid, p 17ff.}

44_{Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for}

Redress (2nd ed, Lawbook Exchange, Ltd 2008).

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The centrepiece of the law about the crime of genocide is undoubtedly the Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention), adopted by the UNGA in 1948. The Convention is relatively widely adopted, yet it is regarded with unease by some States due to several obligations it imposes on them, such as extradition or prosecution of certain individuals, including Heads of Statess.46_{Nevertheless, the}

International Court of Justice in AO on Reservations to Genocide Convention held that the principles underlying the Convention are such as recognized by civilized nations and binding on States, even without conventional obligations.47_{This opinion is often regarded as}

recognizing the prohibition of genocide as a norm of international customary law. Accompanying the Convention there are other legal sources on genocide adopted by the UNGA, such as the Statutes of the International Criminal Tribunals for the Former Yugoslavia and Rwanda.

Most human rights instruments address individual’s right to life, whereas Genocide Convention concerns right to life of human groups.48_{Thus, genocide represents denial of the}

right to existence of an entire human group.49_{It can be simultaneously committed against}

individuals, the group to which they belong, and human diversity. ICJ confirmed that prohibition of genocide is a jus cogens norm50_{and an erga omnes obligation.}51

3.1.1.1. Definition of the Crime and Protected Groups

Turning to the description of the crime itself, the standard definition of the crime is contained in article II of Genocide Convention, which is essentially replicated in article 6 of the ICC Statute, and it includes killings of members of the group, causing serious bodily and mental harm, inflicting conditions of life calculated to bring group’s physical destruction, imposing measures intended to prevent births and forcible transfer of children to another

46_{Ibid , p 3.}

47_{Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion)}

[1951] ICJ Rep Judgements Advis Opin Orders (ICJ), p 12.

48_{Schabas (n 42), p 7ff.}

49_{UNGA Res 96(I) (11 December 1946).}

50_{Case Concerning Armed Activities on the Territory of the Congo (DRC v Rwanda), Jurisdiction of the Court and}

Admissibility of the Application [2006] Rep 2006 6 (ICJ), par 64.

51_{Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion)}

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group.52_{Solely these acts can form actus reus of the crime, and for the crime to be committed}

it is enough that only one of the acts listed is undertaken.53

Undoubtedly, a very important characteristic of the crime, which is widely acknowledged in case law as well as in literature, is targeting of a victim due to its membership in a national, ethnic, racial or religious group and not due to any other personal circumstance.54

Targeting of the individual thus forms just a part of a much larger offence: destruction of a group, in whole or in part.55_{Not just any group can be protected by the Genocide Convention,}

only national, ethnic, racial and religious groups are mentioned.56_{Evidence show that such an}

enumerated list was meant to be exhaustive. Other thanAkayesu57_{case, no other jurisprudence}

supports the view that this list is an open-ended description of protected groups. The Trial Chamber in Akayesuheld that the Convention encompasses all “stable and permanent groups.”58_{However, this view has never been supported by the ICTR Appeals Chamber}59_or

the jurisprudence of the ICTY.60_{It appears that the ICTY adopted a better approach in Krstić:}

while recognizing that the list is exhaustive, it accepted that the four groups fit within the historical concept of international legal protection of minorities and thus the meaning of the listed groups shall be interpreted in such a context.61

Another issue that arises here is identification of the group and its members. In this manner we distinguish between subjective and objective approach: while the former means that the perpetrator considers the victim to be a member of the group he or she is targeting, the latter supports the view that the group must have some form of objective existence. In connection to the purely subjective approach, ICTR Trial Chamber held in Bagilishema case that the most significant factor may be that the perpetrators have the specific intent to destroy

52_{Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered}

into force 12 January 1951) 78 UNTS 277, art II.

53_{Prosecutor v Akayesu, Judgement [1998] ICTR ICTR-96-4-T, par 499.}

54_{Gideon Boas, James L Bischoff and Natalie L Reid, Elements of Crimes under International Law (3. print,}

Cambridge Univ Press 2011), p 140.

55_{Ibid, p 140.}

56_{Genocide Convention (n 52), art II.}

57_{ICTR Trial Chamber in Akayesu held that the drafters intended to protect any stable and permanent group, rather}

than the goups expressely mentioned.

58_{Prosecutor v Akayesu, Judgement (n 53), par 515, 516.}

59_{George William Mugwanya, Crime of Genocide in International Law: Appraising the Contribution of the UN}

Tribunal for Rwanda (Cameron May 2007), p 67.

60_{Schabas (n 42), p 153.}

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a group identified by themselves.62_{While in some cases tribunals have relied exclusively on}

subjective approach,63,64_{the better view is that the group must have some sort of objective}

existence. It appears that international tribunals have settled that existence of a protected group should be “assessed on a case-by-case basis by reference to the objective particulars of a given social or historical context, and by the subjective perceptions of the perpetrators.”65

3.1.1.2. Mental Element

Turning to the intent requirement, article 30 of the Statute holds that the mens rea has two components, intent and knowledge.66_{According to the article, alleged perpetrator}

possesses intent when he/she intends to engage in the conduct or “means to cause the consequence […]”67_{and knowledge is defined as “awareness that a circumstance exist or a}

consequence will occur in the ordinary course of events.”68_{Both of these elements are relevant}

for the crime of genocide. The predominant interpretation considers that genocide is a crime of dolus specialis involving a perpetrator with deliberate desire to bring destruction upon the relevant group.69_{Thus, the special intent is what sets genocide apart from other international}

crimes. It is the nature of dolus specialis that distinguishes genocide the most.70_{ICTY made}

clear in Jelisić that it is in fact mens rea what gives genocide its specialty and differentiates it from other crimes.71_{Ad hoc tribunals focused on dolus specialis and the importance of the}

intent in their jurisprudence,72_{for example, ICTY held in Krstić that conviction for genocide}

can only be entered when “intent has been unequivocally established.”73

A difficulty arises with intent in the acts of so-called foot soldiers. Thus, Greenawalt, building on more traditional understanding of intent, proposes that guilt shall extend also to those who may lack dolus specialis but still commit the acts with understanding of destructive consequences for the group.74_{In article 30 Rome Statute the phrase “unless otherwise}

62_{The Prosecutor v Ignace Bagilishema, Judgement [2001] ICTR Trial Chamber I ICTR-95-1A-T, par 65.} 63_{The Prosecutor v Kayishema and Ruzindana [1999] ICTR Trial Chamber II ICTR-95-1-T, par 98.} 64_{Prosecutor v Jelisić [1999] ICTY IT-95-10-T, par 69ff.}

65_{The Prosecutor v Laurent Semanza [2003] ICTR Trial Chamber III ICTR-97-20-T, par 317.} 66_{Rome Statute (n 38), art 30.}

67_{Ibid, art 30(2).} 68_{Ibid, art 30(3).}

69_{Alexander KA Greenawalt, ‘Rethinking Genocidal Intent: The Case for a Knowledge-Based Interpretation’}

(1999) 99 Colum. L. Rev, p 2264.

70_{Boas, Bischoff and Reid (n 54), p 140.} 71_{Prosecutor v. Jelisić (n 64), par 66.} 72_{Schabas (n 40), p 133.}

73_{Prosecutor v Krstić [2004] ICTY IT-98-33-A, par 134.} 74_{Greenawalt (n 69), p 2264ff.}

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provided” is included; however, nowhere in the Statute a special genocidal intent is explicitly required. One can still argue that it is so provided in the Genocide Convention which can be regarded as an external interpretative authority for the mens rea. Undoubtedly, dolus specialis is a challenge for the guilt of subordinate perpetrators and for those lacking ideology of extermination but nevertheless possess the knowledge of the plan to do so.75_{Hence, the better}

interpretation would be that where a perpetrator is liable for the crime, the intent requirement should be satisfied if he/she acted in furtherance of a genocidal campaign and had knowledge of the target being destruction.76_{Such an approach highlights the destructive objective of}

genocide rather than specific motive of individual perpetrators and prevents impunity for “subordinate perpetrators” and those not sharing the ideology of destruction of protected group(s).

3.1.2. Crimes against Humanity

Raison d’être of crimes against humanity (CAH) may be seen as an implementation of human rights norms within international criminal law, since the law not only protects enemy nationals but also covers crimes committed by a State against its own population.77

Jurisprudence of international criminal tribunals shows us that these crimes form the core of international criminal justice and encompass genocide as well, which is often viewed as an aggravated form of CAH.78_{Previously, such crimes required a nexus to an armed conflict}79_or

discriminatory motive,80_{however, it was acknowledged by Appeals Chamber in Tadić that}

such a motive is not required, unless it is so required in the elements of the crime.81_The

agreement reached in Rome followed the Tadić decision and rejected any such requirement with the exception of CAH of persecution.82

75_{Ibid, p 2279ff.} 76_{Ibid, p 2288.}

77_{UN War Crimes Commission, ‘Developments in the Concepts of Crimes against Humanity, War Crimes and}

Crimes Agasint Peace’, History of the United Nations War Crimes Commission and the Development of the Laws

of War (1948), p 193.

78_{Schabas (n 40), p 152.}

79_{Nuremberg and Tokyo Charters both required such a connection, also ICTY Statute required an armed conflict}

context, yet already ICTR Statute abolished any such reference.

80_{Under ICTR Statute crimes against humanity must be committed “on national, political, ethnic, racial or}

religious grounds.”

81_{Prosecutor v Tadić [1999] ICTY IT-94-1-A, par 282ff.} 82_{Rome Statute (n 38), art 7(1).}

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Crimes referred to in article 7 of the Statute involve commission of inhumane acts, such as murder, torture, rape, sexual slavery, persecution, etc., in a certain context, which means they must be part of “a widespread or systematic attack directed against any civilian population.”83

There are five contextual elements of a crime against humanity.84_{First, the attack needs to be}

directed against any civilian population and must be carried out as a policy of either a State or an organization. Third, as mentioned, the attack must be systematic and widespread, it is this specific context that separates these crimes from the acts that would otherwise be of exclusive concern to national jurisdiction. Further, the acts of the accused must form part of the widespread attack, in other words, it must be “in furtherance of” it.85_{Last but not least, ICTY}

held in Tadić that the accused must be aware of the broader context of which its acts form part in order to be held internationally responsible.86_{Moreover, only the attack must be widespread}

or systematic, a single act may constitute a crime regardless this requirement if it is a part of the attack.87_{Moreover, it must be noted that it is not required that the accused sees its act as}

inhumane, objective categorization of the act as such suffices.

3.1.3. War Crimes

War crime is a violation of the laws and customs applicable in armed conflict, also known as international humanitarian law (IHL) discussed below,88_{and is defined in article 8}

of the Rome Statute. In contrast to crimes against humanity, these acts have no requirement of widespread or systematic commission,89_{but they require a nexus with an armed conflict as a}

precondition for individual criminal responsibility to arise.90_{Contrary to the previous ad hoc}

criminal tribunals, Rome Statute in article 8(1) sets a threshold for the war crimes to be committed as a part of a policy or a large-scale commission of such crimes.91_{However, the}

83_{Ibid, art7(1).}

84_{Schabas (n 40), p 153.} 85_{Ibid, p 166.}

86_{Prosecutor v. Tadič (n 81), par 271.}

87_{Robert Cryer (ed), An Introduction to International Criminal Law and Procedure (Third edition, Cambridge}

University Press 2014), p 242.

88_{Ibid, p 264.} 89_{Ibid, p 264.}

90_{Roger O’Keefe, International Criminal Law (First edition, Oxford University Press 2015), p 132.} 91_{Schabas (n 40), p 225 ff}

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PTC II held that these requirements are not prerequisites for the Court’s jurisdiction, but rather serve as practical guidelines.92

3.1.3.1. International Humanitarian Law

IHL is specifically intended to preserve humanitarian values during armed conflicts by regulating the conduct of hostilities and limiting the means and methods of warfare and providing protection and humane treatment to persons not or no longer participating in hostilities. IHL rules can be divided into the Conventions adopted in The Hague and those adopted in Geneva. The former limit the means and methods of warfare; in contrast, the latter mainly focus on the protection of civilians and others who are not considered active combatants. The rules in these Conventions have been recognized as international custom93,94

and are thus binding regardless of contractual obligations adopted by States.

3.1.3.2. Armed Conflict

As mentioned, a particular conduct must take place in the context of and in connection with an armed conflict in order to qualify as a war crime.95_{As a formal matter, IHL previously}

applied only to conflicts between States, in other words, to international armed conflicts (IAC). Application of treaty law in non-international armed conflict (NIAC) is much more limited than in IAC. A drastic shift in application of IHL to NIAC came with the only universally applicable Common Article 3 of the Geneva Conventions, extending application of in the article specified rules to NIAC.96

Unfortunately, the article itself does not provide any definition of NIAC nor it proclaims the required threshold. Appeals Chamber in Tadić offered a definition: NIAC exists when there is “protracted armed violence between governmental authorities and organized

92_{The Prosecutor v Jean-Pierre Bemba Gombo [2009] Pre-Trial Chamber II ICC-01/05-01/08, par 211.}

93_{Theodor Meron, Human Rights and Humanitarian Norms as Customary Law (Oxford University Press 1991)}

<http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780198257455.001.0001/acprof-9780198257455> accessed 10 June 2019, p 41ff.

94_{ICJ recognized the customary nature of the “grave breach” provisions in AO on Legality of the Threat or Use}

of Nuclear Weapons: The Legality of Threat or Use of Nuclear Weapons, Advisory Opinion [1996] ICJ Rep 1996 226 (ICJ), par 79ff.

95_{Boas, Bischoff and Reid (n 54), p 232.}

96_{ICRC, Geneva Conventions I (75 UNTS 31), II (75 UNTS 85), III (75 UNTS 135) and IV (75 UNTS 287),}

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armed groups or between such groups.”97_{At the time, the decision was seen as}

ground-breaking, but it received a considerable amount of support during drafting of the Rome Statute. Turning to the second issue, in order to reach the threshold for NIAC, two criteria must be met: a certain degree of intensity and at least one party to the conflict being a non-state actor that possesses a certain level of organization.

3.2. Crimes Committed against the Yazidis

In this section, I will analyse whether the crimes committed against the Yazidis reach the criteria for individual criminal responsibility under international law for genocide, CAH and/or war crimes.

3.2.1. Genocide

The first question is whether the crimes committed against the Yazidis satisfy the definition of genocide as defined in article II of the Genocide Convention and Art. 6 of the Rome Statute. What sets genocide apart from other crimes is the fact that a victim is a group, not an individual. Nevertheless, there is no need for the prosecution to establish any certain number of victims.98_{As mentioned above, the accused perpetrators need to have dolus specialis}

to destroy, in whole or in part, a protected group or at least possess knowledge of participation in the crime.99_{Thus, the object of extermination does not need to be the whole group, a part of}

it suffices.100_{The ICTY also examined the term “in whole or in part” in Krstić and concluded}

that intent to destroy a group within a limited geographical area, such as a region or even a municipality could be characterized as genocide. Also, the ICJ held in Bosnian Genocide case that genocide was committed only in Srebrenica and not generally in Bosnia.101_{What is}

necessary is that the targeted “part” should be an identifiable part of the whole group.102

97_{Prosecutor v. Tadič (n 81), par 70.} 98_{O’Keefe (n 90), p 72.}

99_{Ibid, p 72.}

100_{Genocide Convention (n 52), art II and Rome Statute (n 38), art 6.}

101_{Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and}

Herzegovina v Serbia and Montenegro) [2007] ICJ Judgment, I.C.J. Reports 2007, p. 43.

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Undoubtedly, all the Yazidis in the northern Iraq’s Sinjar region were targeted by ISIS and they form an identifiable part of the group. The Yazidis are the second largest religious minority in Iraq, and one of the oldest in the Middle East, with between 550,000 and 600,000 members.103_{At this point, we shall discuss whether the Yazidis are a protected group under the}

Genocide Convention. The list of protected groups sparked more debate than any other aspect of this instrument. Groups listed as protected are the following: national, racial, ethnic and religious. As mentioned above, the list appears to be exhaustive and determination shall be made on case-by-case basis, referring to subjective as well as objective criteria.104,105_The

Yazidis are identified as an ethnic and religious group indigenous to the Middle East106_and

hence are a group protected under the Convention. As far as the subjective perception is concerned, looking at the statements of ISIS, they definitely perceived them as members of a minority group. In an article in the group’s English magazine they described them as a “pagan minority [whose] existence […] Muslims should question.”107

As mentioned, acts must be committed against an individual due to its membership in the group which can be clearly established from ISIS’s justifications of the acts undertaken against the Yazidis. Genocidal acts are defined in the Genocide Convention in article II and replicated in the Rome Statute. As actus reus of the crime the following deeds are listed: killing members of the group, causing seriously bodily or mental harm, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction, imposing measures intended to prevent births within the group, forcibly transferring children of the group to another group. As such, the list is exhaustive.108

Men and boys aged 12 and above were summarily executed upon their refusal to convert to Islam. Three documented cases of large mass killings took place in the course of these actions: those of men and boys of Kocho and Qani villages109_{and that of older women}

from Kocho village.110_{Following from this, it can be conclude that ISIS members committed}

103_{‘Minorities in Iraq: Memory, Identity and Challenges’ (Masarat for Cultural and Media development 2013), p}

66.

104_{For example in The Prosecutor v Brđanin, Judgement [2004] ICTY IT-99-36-T, par 684.} 105_{The Prosecutor v Laurent Semanza (n 65), par 317.}

106_{Dave van Zoonen and Khogir Wirya, ‘The Yazidis: Perception Of Reconciliation and Conflict’ (Middle East}

Research Institute 2017), p 7.

107_{‘The Revival of Slavery Before the Hour’ [2014] Dabiq 14, p 14.} 108_{Genocide Convention (n 52), art II.}

109_{Human Rights Council (n 109), par 36.} 110_{Ibid, par 48.}

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actus reus of genocide by killing members of the protected group. Serious bodily or mental harm was caused through rape, sexual slavery, and torture111_{, to which mainly the Yazidi}

women and girls were subjected. In Akayesu case it was held that serious harm can be caused among others through torture, inhumane and degrading treatment or persecution.112_Sexual

violence of which women were victims can definitely be regarded as inhumane and degrading treatment and thus causes serious harm in the sense of article II(b) Genocide Convention. Sexual violence was also deemed to cause such harm by ICTY in Stakić113_{and beforehand in}

Karadžić et al.114_{Moreover, several measures were adopted to prevent births within the group,}

such as separation of men and women. Article II(d) does not require the measures to be successful since its sole imposition suffices for the crime to take place, but it has been proposed by the US that the prosecution should establish success of the imposed measures.115_{Last but}

not least, forcibly transfer of children has been committed with younger boys being separated by their mothers and forcibly converted to Islam and trained to join ISIS forces.116_{Focusing on}

the immediate days after the attack was launched, the Yazidis were deliberately exposed to “conditions of life calculated to bring about its physical destruction in whole or in part.”117_This

act of genocide refers to methods by which ISIS did not immediately kill the members of the group but, ultimately, seek their physical destruction. These acts took place around Mount Sinjar when Yazidis fled from the attack and ISIS deliberately cut them from food, water and medical care.

Since direct evidence of genocidal dolus specialis may be unavailable, intent is in practice often deduced from circumstantial evidence, such as actions and words of the perpetrators.118,119_{ISIS’s intent can be directly inferred from public statements by the group}

(such as the one above). They have publicly cited the Yazidis’ faith as the basis for the attack in August 2014120_{and through such statements the intent can be established.}

111_{Ibid, par 64, 112ff, 129ff.}

112_{Prosecutor v Akayesu, Judgement (n 53), par 503.}

113_{The Prosecutor v Stakić [2003] ICTY IT-97-24-T, par 516.}

114_{Prosecutor v Karadžić et al, Consideration of the indictment [1996] ICTY IT-95-5-R61, IT-95-18-R61, par 93.} 115_{Schabas (n 42), p 198.}

116_{Human Rights Council (n 109), par 143ff.} 117_{Rome Statute (n 38), art 6(c).}

118_{For example in The Prosecutor v Athanase Seromba [2008] ICTR Appeals Chamber ICTR-2001-66-A, par}

177ff.

119_{Schabas (n 42), p 264.}

120_{Human Rights Council, ‘“They Came to Destroy”: ISIS Crimes Against the Yazidis’ A/HRC/32/CRP.2, par}

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Simultaneously, issue of establishing culpability of “foot soldiers” arises. Therefore, as described in detail above, Greenawalt suggested that in cases where perpetrator is liable for a genocidal act knowledge-based approach should be adopted, which means the requirement for intent should be satisfied if the “perpetrator acted in furtherance of a campaign targeting members of a protected group” and knew that the goal of the campaign “was destruction of the group in whole or in part.”121

3.2.2. War Crimes and Crimes against Humanity

In this paragraph, I will determine whether armed conflict was taking place in Syria. As already stressed, a certain degree of intensity is required and at least one party to the conflict must be a non-state actor that possesses a certain level of organization in order to qualify an internal conflict as NIAC. Intensity needs to rise above internal unrest or terrorist incidents. It has been established that parties to the conflict were using heavy artillery, frequently engaged in armed confrontations that caused hundreds of thousands of casualties and forced millions to flee their homes. Moreover, research into the structure of the ISIS reveals that the group is indeed a complex organization with a defined military structure.122

There are a number of parties to the conflict, namely the Syrian Government and its allies, al Nusra and other mainstream opposition, ISIS, Kurdish militias, anti-ISIS coalition and Turkey,123_{which all possess a clear level of organization.}124_{Undoubtedly, at least since early}

2012, due to the level of organization of the main opposition groups and the intensity of the fighting, threshold for NIAC has been met.125,126_{ISIS has pursued its own objective,}

distinguishable from al Nusra, mainly to establish an Islamist caliphate and oppose the Syrian government, mainstream opposition and Kurdish militias, and was as such deemed a separate party to the conflict.127_{The fact that these parties have different objectives does not change}

that there was one NIAC underway in Syria. Russian and Iranian intervention do not change conflict classification since they act in direct support of the government.128_{Alongside this}

121_{Alexander K.A. Greenawalt, ‘Rethinking Genocidal Intent: The Case for a Knowledge-Based Interpretation’}

(1999) 99 Colum. L. Rev., p 2288.

122_{Geneva Academy, ‘Non-International Armed Conflicts in Syria’ [2018] RULAC.} 123_{Terry D Gill, ‘Classifying the Conflict in Syria’ (2016) 92 Int’l L. Stud, p 354ff.} 124_{Ibid, p 374.}

125_{Ibid, p 374.}

126_{Geneva Academy (n 123).} 127_{Gill (n 123), p 374.} 128_{Ibid, p 375.}

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NIAC, there has been a separate conflict between ISIS and the anti-ISIS coalition since August 2014. Prof. Gill argues that this conflict is also of non-international character since the intervention is directed exclusively against the non-State armed group and does not target neither Syrian armed forces nor any “national assets”.129_{It is true that attacks impacted civilian}

population but to the extent that the civilians were in the territory where the armed group was active and exercised control, they were not under control of the Syrian State.130_{Further, attacks}

directed against ISIS that cause damage to civilians in its territory are offered the same level of protection under the rules applicable to NIAC than those applicable to IAC. Moreover, the coalition does not consider itself to be involved in an IAC and no actions were undertaken to contest this observation. Consequently, this is another separate NIAC. There was further violence taking place between Turkish and Kurdish forces, but it is outside the scope of this thesis.

In a nutshell, ISIS was a party to NIAC and the crimes it committed in violation of applicable IHL rules may amount to war crimes in the sense of article 8 Rome Statute. The Yazidis were a civilian population not putting up any sizeable resistance and therefore the group committed the war crime of attacking a civilian population. When summarily executing those who refused to convert, they committed the war crime of murder. Moreover, war crimes of torture and cruel treatment occurred, and Yazidi women were victims of war crimes of rape, sexual violence and sexual slavery.131

Additionally, atrocities committed against the Yazidis constituted “a widespread or systematic attack directed against any civilian population” pursuant to article 7 Rome Statute.132_{ISIS committed the following CAH: murder and extermination, sexual slavery, rape,}

enslavement, torture against Yazidi women and girls.133_{Since these crimes were committed on}

discriminatory grounds, as such they also amount to CAH of persecution.

129_{Ibid, p 367ff.} 130_{Ibid, p 375.}

131_{Human Rights Council (n 109), par 169ff.} 132_{Rome Statute (n 38), art 7(a).}

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3.2.3. “Unimaginable Horrors”

Evidently, long list of international crimes has been committed against the Yazidis, women and men alike. The “unimaginable horrors” perpetrated by ISIS against the minority show the urgent need to ensure accountability for these atrocities.134_{In March 2015, the Iraqi}

government declared crimes against the Yazidis to be genocide, yet no provisions on the discussed international crimes are incorporated into the Iraqi criminal legislation.135_{Also, the}

criminal provisions on sexual violence are problematic due to the stipulation that any verdict is automatically vacated if the perpetrator subsequently marries the victim of their sexual attack.136_{Since time is required for reforming legal culture where marriage can “cure rape”,}137

the Yazidi victims may hold little trust in the Iraqi criminal justice system.138_Accompanying

these substantive problems, there are several procedural concerns as well, such as due process concerns139_{and the death penalty, which has prevented many abolitionist states from fully}

supporting the striving for justice. Although there might be temptation among victims for justice resulting in the ultimate penalty, the Iraqi system is regarded as deeply flawed and fails to earn respect of the international community.140_{Therefore, these limitations of the Iraqi Penal}

Code may not produce results acceptable to the Yazidi victims that141_{have originally set their}

hopes on involvement of the ICC.142_{Many victims have argued that only an international court}

could ensure fair trial, since in the eyes of the Yazidi community the central government in Baghdad is seen as unwilling to punish perpetrators for the crimes committed against the minority.143_{These concerns may be underlined by the obvious absence of prosecution of crimes}

committed against them and clear focus of Iraqi courts on terrorism charges. However, as already mentioned, prosecution before the ICC comes with significant challenges, which will be discussed below.

134_{Skye Wheeler, ‘UN Panel Reports on ISIS Crimes on Yezidis: “Unimaginable Horrors”’ (Human Rights Watch,}

21 June 2016).

135_Ibid.

136_{Beth Van Schaack, ‘The Iraq Investigative Team and Prospects for Justice for the Yazidi Genocide’ (2018) 16}

Journal of International Criminal Justice, p 126.

137_{Ibid, p 127.}

138_{Dave van Zoonen and Khogir Wirya (n 106), p 104.} 139_{Ibid, p 134.}

140_{Ibid, p 117.} 141_{Ibid, p 113ff.} 142_{Ibid, p 121.}

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Chapter 4: Prosecuting Members of the Islamic State

As stressed in the previous chapter, there is a strong desire among the Yazidi victims for involvement of an international tribunal due to the widespread distrust in the Iraqi legal system. The ICC was set up to end impunity for the most serious crimes which are of concern to the whole international community and thus seems an appropriate forum for holding the members of the group accountable. Given the magnitude of the crimes perpetrated by the ISIS members and the impunity gap, involvement of the Court would be justified.144_Yet,

prosecution of the alleged perpetrators poses a number of obstacles.

In a nutshell, ICC is a treaty-based institution and can thus only act where one of the following is engaged: the territorial State where the crime was committed is a party to the ICC Statute, the State of the nationality of the alleged perpetrator is a party to the Statute, or a situation is referred to the Court by the UN Security Council (UNSC).145_{All of these triggering}

mechanisms will be separately analysed below.

4.1. Prosecution at the International Criminal Court

The ICC is intended to be a court of last resort, supplementing national jurisdiction.146

State parties retain primary responsibility to exercise criminal jurisdiction over perpetrators of the core crimes listed in article 5. In other words, the ICC operates on the principle of complementarity,147_{which means that, when it is established that ICC can exercise jurisdiction,}

it must consider whether the case is admissible. If there are no proceedings under way in the State or national authorities are unable or unwilling to investigate and/or prosecute the alleged perpetrators, the case will be admissible before the Court.

144_{Coman Kenny, ‘Prosecuting Crimes of International Concern: Islamic State at the ICC?’ (2017) 33 Utrecht}

Journal of International and European Law, p 122.

145_{Ibid, p 122.}

146_{Rome Statute (n 38), preamble.} 147_{Ibid, art 1.}

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4.1.1. Jurisdictional Obstacles

As mentioned above, the ICC can only act when the territorial State is a party to the Rome Statute, when the alleged perpetrator is a national of a State party, or when a situation is referred to the Prosecutor by the UNSC. When it comes to ISIS, the main issue is that the group’s activities are mainly conducted in Syria and Iraq, non-parties to the Statute. The Chief Prosecutor of the ICC publicly announced that “the jurisdictional basis for opening a preliminary examination into [Syria and Iraq] is too narrow at this stage.”148_{In light of this}

statement, each of the possible avenues for the Court’s jurisdiction will be dealt with, starting with the most obvious of the three – referral by the UNSC. It should be stressed that in case of such a referral, ICC has jurisdiction regardless of the territorial State’s signature or accession to the Rome Statute.

4.1.1.1. Jurisdiction Based on a Referral by the UN Security Council

UNSC, acting under Chapter VII of the UN Charter (UNC), can grant jurisdiction to the ICC where it would otherwise be unable to act. This power is quite significant149_{and, as}

stated in article 13(b) of the Statute, the UNSC can refer a “situation” to the Court.150_However,

a definition of a “situation” is nowhere to be found and thus poses a series of questions.

China and Russia, two of the permanent members of the UNSC, have already vetoeddraft Resolution on Syria due to the jurisdiction the Court would be granted in respect to Syrian state forces.151_{The obvious solution, also undoubtedly highly contentious, would be}

to base the referral solely on ISIS’s actions.152_{The only limitation of “situation” is contained}

in article 13(b): referral must contain one or more crimes under the Court’s jurisdiction. Nevertheless, the question remains whether a referral can preclude certain individuals from possible criminal responsibility. The Office of the Prosecutor (OTP) adopted a position in Ugandan self-referral that it is not permissible to limit referral to one party as Uganda sought to do and OTP did not consider itself to be bound by it.153_{Looking at the two referrals to date}

by the UNSC, regarding Libya and Darfur respectively, they expressly limited the situations in

148_{ICC, ‘Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the Alleged Crimes}

Committed by ISIS’ (8 April 2015).

149_{Coman Kenny (n 144), p 122.} 150_{Rome Statute (n 38), art 13(b).}

151_{UNSC, ‘Referral of Syria to International Criminal Court Fails as Negative Votes Prevent Security Council}

from Adopting Draft Resolution’ (2014) SC/11407.

152_{Coman Kenny (n 144), p 123.} 153_{Ibid, p 123.}

Islamic State at the International Criminal Court: Prosecutorial Challenges