L.L.M. Thesis
International Criminal Law – Joint Programme University of Amsterdam
Acting Alone?
Lone Wolf Terrorism as a Crime Against Humanity
Alexa Busser alb2298@columbia.edu
12910309
Supervised by Harmen van der Wilt
Abstract
Terrorism is not included in any form in the Rome Statute, despite being a primary cause of international and transnational violence. In particular, terrorist acts by “lone wolf” actors, who are not directly connected to any terrorist organization and plan and perpetrate attacks by themselves, do not obviously fit within the International Criminal Court’s jurisdiction. However, this paper argues that in fact there can be circumstances in which lone wolves can be commissioners of crimes against humanity subject to ICC jurisdiction. As a demonstrative, it shows that the Islamic State in Iraq and Syria (ISIS) has committed a widespread and systematic attack against a civilian population in furtherance of its organizational policy, fulfilling to Rome Statute’s chapeau requirements. Furthermore, ISIS has implemented a strategy of recruiting, inspiring, and providing training materials to potential lone wolves around the world online. The paper comes to the conclusion that lone wolves who do commit acts of terrorism in support of ISIS are committing acts as part of the ISIS attack, in furtherance of its policy, and with knowledge of the context, such that their actions can be considered crimes against humanity.
Table of Contents
I. Introduction ... 1
II. Defining Crimes Against Humanity ... 2
A. Development of Crimes Against Humanity ... 2
B. The ICC’s Chapeau Elements ... 4
1. Widespread or systematic attack ... 4
2. The State or Organizational Policy Requirement ... 5
3. “Attack” Against a “Civilian Population” ... 8
III. Interpretations of Terrorism as a Crime Against Humanity ... 10
A. Role of terrorism in international criminal tribunals ... 10
B. Terrorism as a crime against humanity ... 13
IV. Lone Wolf Terrorism as a Crime Against Humanity ... 16
A. Case Study: The Islamic State ... 17
1. Scope of the Attack ... 18
2. Civilian Population ... 19
3. Widespread or Systematic ... 21
a. Widespread ... 21
b. Systematic ... 22
4. State or Organizational Policy ... 24
a. Organization ... 24
b. Policy ... 25
5. Prosecuting Lone Wolves Themselves ... 27
a. “As part of” ... 27
b. “In furtherance of” ... 29
c. Mens Rea ... 30
I. Introduction
For decades, and especially since the September 11, 2001 attacks on the World Trade Center and Pentagon in the United States, scholars and government leaders alike have been searching for ways to hold international terrorists accountable for their heinous acts. Difficulty in establishing a universal definition of terrorism has been among the primary barriers to achieving this goal. The central characteristics of terrorism itself—its organized but dispersed nature, spanning national boundaries—make preventing and punishing terrorist acts particularly challenging.
Another challenge to combatting terrorism at the juridical level is that terrorist tactics change. With the internet and social media connecting people more closely than ever, some terrorist groups are indirectly inspiring or directly coordinating attacks by perpetrators otherwise unconnected to the group in countries far from the organization itself. These attacks are more and more frequently occurring in the gray area between direct and indirect involvement of organizations. The actors in these scenarios, often labeled (or mislabeled) as “lone wolf terrorists” may be difficult to bring to justice given their unique degree of connection to terrorist groups.
The International Criminal Court (ICC)’s foundational statute does not articulate terrorism as among the crimes within the court’s jurisdiction, instead limiting its scope to war crimes, genocide, crimes against humanity, and now the crime of aggression. Since September 11, however, many scholars have attempted to demonstrate that international terrorism does belong within the jurisdiction of the ICC, either as its own crime or, more frequently and convincingly argued, embedded within the category of crimes against humanity.
This thesis will expand upon those studies to explore whether so-called “lone wolf terrorists” may also fit the criteria required of crimes against humanity when their conduct is part of a broader attack by a terrorist group. As one journalist put it, terrorist organizations’ “unique manipulation of modern communications technologies portends the end of lone-wolf terrorism.”1 Including lone wolf terrorists significantly influenced by international terrorist organizations would reflect the seriousness of these acts as part of international terror campaigns. Their inclusion
1 Jen Easterly and Joshua A. Geltzler, The Islamic State and the End of Lone-Wolf Terrorism, FOREIGN POLICY (May
may also make it easier to establish the conditions necessary to prosecute the leaders of international terrorist organizations.
Part II will discuss the definition and evolution of the crime against humanity in international criminal tribunals and ultimately at the International Criminal Court, including the criteria that must be met in order for acts to be considered within the category. Part III will explore how terrorism in general fits within the crimes against humanity framework, agreeing with the plentiful scholarship that concludes that it can in fact be classified and tried as such. Part IV narrows the discussion to lone wolf terrorism and whether it can, under the right conditions, be considered crimes against humanity under the International Criminal Court’s framework. It will particularly discuss the ways in which lone wolf terrorism could meet the three primary requirements of crimes against humanity, the “widespread or systematic,” “attack against a civilian population,” and “organizational policy” requirements, using the Islamic State (or “ISIS”)’s online mobilization of perpetrators as a case study. Part V concludes with some reflections on the efficacy and merits of this approach.
II. Defining Crimes Against Humanity A. Development of Crimes Against Humanity
Crimes against humanity were first prosecuted as international crimes following World War II. However, the concept of “crimes against humanity” can be traced back to the Second Hague Convention of 1899 when the contracting parties incorporated the Martens clause, which stated “…populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.”2 There was little invocation of
2 Law and Customs of War on Land (Hague II), 32 Stat. 1803, U.N.T.S. 403; Rupert Ticehurst, The Martens Clause and the Laws of Armed Conflict, INTERNATIONAL REVIEW OF THE RED CROSS no. 317 (Apr. 30, 1997).
the concept of violating the “laws of humanity” immediately following this articulation,3 which was less widely accepted than the well-established category of “war crimes.”4
World War II finally demonstrated the importance of supplementing war crimes with crimes against humanity, as atrocities were committed against foreign and domestic civilians alike.5 The founding statutes for the International Military Tribunals for Nuremberg and Tokyo codified crimes against humanity as
murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.6
This definition set the groundwork for the definitions found at the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) created in the 1990s and the ultimately at the International Criminal Court (ICC).
Both the ICTY and ICTR incorporated crimes against humanity as core crimes over which the tribunals could exercise jurisdiction.7 The statutes reiterate the International Military Tribunals’ requirement that the attacks be directed against civilian populations. However, the contextual requirements of the two statutes differ. The ICTY statute requires that the conduct take place within the scope of an armed conflict;8 the ICTR has no such requirement, but instead states that the acts must take place within the scope of an attack that is “widespread or systematic.”9
The ICTY’s requirement of a nexus to armed conflict did not persist in subsequent ad hoc tribunals, and was not included in the Rome Statute.10 In fact, the ICTY Appeals Chamber in Tadić
3 Though France, Great Britain, and Russia issued a declaration in 1915 stating that the Turkish government had
committed crimes against humanity during the Armenian genocide, crimes against humanity were omitted from both the Treaty of Versailles and Treaty of Sèvres and were never prosecuted. UN War Crimes Commission,HISTORY OF THE UNITED NATIONS WAR CRIMES COMMISSION AND DEVELOPMENT OF THE LAWS OF WAR (1948),4; David Matas,
Prosecuting Crimes Against Humanity: The Lessons of World War I, FORDHAM INTERNATIONAL LAW JOURNAL
(1989),87-91.
4 Christopher Roberts, On the Definition of Crimes Against Humanity and Other Widespread or Systematic Human Rights Violations, 20 UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE 1 (2017), 4.
5 Roberts, supra note 4, 5.
6 Charter of the International Military Tribunal, U.N.T.S. 251, vol. 84 (Aug. 8, 1945), Art. 6(c) (Nuremberg); Charter
of the International Military Tribunal of the Far East, TREATIES AND OTHER INTERNATIONAL ACTS SERIES 1589 (Jan. 19, 1946), Art. 5(c) (Tokyo).
7 Statute of the International Criminal Tribunal for the Former Yugoslavia (“ICTY Statute”) (updated Sep. 2009), Art.
5; Statute of the International Criminal Tribunal for Rwanda (“ICTR Statute”) (updated 2007), Art. 3.
8 ICTY Statute, Art. 5. 9 ICTR Statute, Art. 6.
noted that even at the ICTY, “the armed conflict requirement is a jurisdictional element, not a substantive element of the mens rea of crimes against humanity (i.e., not a legal ingredient of the subjective element of the crime).”11 The ICTR’s widespread or systematic attack requirement, by contrast, represents a core element of crimes against humanity; not only was it included it the ICC’s definition of the crime, but ICTY case law suggests that it is imputed into the ICTY definition due to the inherent nature of crimes against humanity, the caliber of the crimes articulated, and the fact that both the ICTR and ICC statutes include the requirement.12
The Rome Statute added a further requirement to its definition of crimes against humanity: that the attack must be committed “pursuant to or in furtherance of a State or organizational policy.”13 The policy requirement, coupled with the widespread or systematic requirement, served to replace the ICTY’s armed conflict requirement while ensuring attacks are sufficiently grave.14 The policy requirement became one of the ICC’s three “chapeau” requirements: “the crime be committed within the context of a widespread or systematic attack directed against a civilian population in furtherance of a State or organizational policy to commit such an attack.”15
B. The ICC’s Chapeau Elements
1. Widespread or systematic attack
Despite early debate,16 the widespread or systematic requirement is disjunctive.17 As the ICTY articulated in Tadić, it was “the desire to exclude isolated or random acts from the notion of crimes against humanity that led to the inclusion”18 of the widespread or systematic requirements, either of which is sufficient to satisfy that goal. “Widespread” and “systematic” have independent definitions, though in practice they are closely intertwined and difficult to separate. An attack is widespread if there are a sufficiently high number of victims within the civilian population. This
11 Prosecutor v. Tadić, ICTY, Trial Chamber, Judgment (May 7, 1997), para. 249. 12 Prosecutor v. Blaskić, ICTY, Trial Chamber, Judgment (Mar. 3, 2000), para. 201-03. 13 Rome Statute, Art. 7(2)(a).
14 Chapter VII Crimes Against Humanity, REPORT OF THE INTERNATIONAL LAW COMMISSION SIXTY-SEVENTH
SESSION, ILC A/70/10 (2015), 56/191.
15 Id. (emphasis added).
16 Vincen-Joel Proulx, Rethinking the Jurisdiction of the International Criminal Court in the Post-September 11th Era:
Should Acts of Terrorism Qualify as Crimes Against Humanity?, 19 AMERICAN UNIVERSITY INTERNATIONAL LAW
REVIEW 5 (2003), 1071, fn. 258.
17 Prosecutor v. Akayesu, ICTR, Trial Chamber I, Judgment (Sep. 2, 1998), para. 579. 18 Tadić Judgment, para. 648.
number can be reached either through a cumulative series of violent acts or with one extremely violent act with many casualties.19 An attack qualifies as systematic if there is a sufficient level of organization and planning behind the attack.20 It is not required that the attack be orchestrated by a state or at the highest levels of an organization in order to meet the systematicity threshold,21 but merely that it be intentional and methodical.
The widespread or systematic requirement has drawn criticism as among the most poorly defined elements of the crimes against humanity. In addition to the fact that there is no reliable threshold that must be met, the interconnectedness of the two elements leads to murky findings.22 However, the purpose of the widespread and systematic requirement at the ICTY and ICTR, and even more so at the ICC, is to prevent singular and individual acts of violence from falling within the purview of international tribunals.
The ICC’s requirement that an attack be widespread or systematic in order to establish crimes against humanity largely follows the ICTY and ICTR case law. The requirement, in Article 7(1) of the Rome Statute, is explicitly disjunctive. The ICC Pre-Trial Chamber in the Kenya Authorization case stated that “widespread” refers to “the large scale nature of the attack, which should be massive, frequent, carried out collectively with considerable seriousness and directed against a multiplicity of victims,” while “systematic” attacks can “often be expressed through patterns of crimes, in the sense of nonaccidental repetition of similar criminal conduct on a regular basis.”23
2. The State or Organizational Policy Requirement
19 Blaskić Judgment, para. 206; Tadić Judgment, para. 648; Akayesu Judgment, para. 580. 20 Blaskić Judgment, para. 203-04; Tadić Judgment, para. 648; Akayesu Judgment, para. 580. 21 Blaskić Judgment, para. 206.
22 Blaskić Judgment, para. 207 (“these two criteria will often be difficult to separate since a widespread attack targeting
a large number of victims generally relies on some form of planning or organisation”).
23 Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ICC, Pre-Trial Chamber II (Mar. 31, 2010) (“Kenya Authorization Decision”), para. 95-96.
The policy requirement was not a element of crimes against humanity at the ICTY or ICTR,24 leading to criticisms that the requirement is contrary to customary international law.25 The International Law Commission (ILC) Commentary to the 1996 Draft Code clarified that the policy requirement “is intended to exclude the situation in which an individual commits an inhumane act while acting on his own initiative pursuant to his own criminal plan in the absence of any encouragement or direction from either a Government or a group or organization.”26 Thus, the policy requirement may be viewed not as inherent in crimes against humanity, but as a criterion for the prosecution of crimes against humanity at the ICC. 27 There was initial debate about whether the policy requirement was indeed its own chapeau element, or merely “an element from which the systematic nature of an attack may be inferred.”28 This interpretation was disfavored in the Kenya authorization case, which confirmed that the policy requirement does indeed constitute an independent element of crimes against humanity.29
The policy requirement’s first inquiry is whether a group is of the kind considered by Article 7(2)(a). There is significant debate on this point, particularly regarding whether a group must be affiliated with a state and the degree of internal organization a group must possess. Despite notable arguments to the contrary,30 the ICC has concluded that groups need not be affiliated with the state, determining that the drafters would not have included the word “organizational” if they wanted to restrict the application to governmental bodies.31
24 See Prosecutor v. Kunarac, Ković, and Vuković, ICTY, Appeals Chamber, Judgment, (June 12, 2002), para. 98:
“There was nothing in the Statute or in customary international law at the time of the alleged acts which required proof of the existence of a plan or policy to commit these crimes.” Alternatively, the ICTY has held that “the concept of crimes against humanity necessarily implies a policy element,” even if it is not an explicit requirement. Prosecutor v.
Kupreskić, ICTY, Trial Chamber, Judgment (Jan. 14, 2000), para. 551.
25 See generally Matt Halling, Push the Envelope—Watch It Bend: Removing the Policy Requirement and Extending Crimes against Humanity, LEIDEN JOURNAL OF INTERNATIONAL LAW 23 (2010). Interestingly, the policy requirement was not included in the definition of crimes against humanity at the Special Court for Sierra Leone or the Extraordinary Chambers in the Courts of Cambodia, ad hoc hybrid courts that were constituted after the Rome Statute.
26 Draft Code of Crimes against the Peace and Security of Mankind, ILC (1996), 47, note 5.
27 Leila Nadya Sadat, Crimes Against Humanity in the Modern Age, 107 AMERICAN JOURNAL OF INTERNATIONAL
LAW 2(2013), 354.
28 Prosecutor v. Bemba Gombo, ICC, Pre-Trial Chamber III, Decision on the Prosecutor’s Application for a Warrant
of Arrest (“Bemba Gombo Arrest Warrant”) (May 23, 2008), para. 33.
29 Kenya Authorization Decision, Majority Opinion, para. 83; Kenya Authorization Decision, Judge Kaul Dissent,
para. 26.
30 M. Cherif Bassiouni, CRIMES AGAINST HUMANITY IN INTERNATIONAL CRIMINAL LAW (2d ed., 1999), 24. Professor
Bassiouni chaired the drafting committee and argues that the provision was intended to apply only to states.
31 Kenya Authorization Decision, para. 92; Prosecutor v. Katanga, ICC, Trial Chamber, Judgment pursuant to article
Even after concluding that non-state groups are included in scope of the Rome Statute, however, there is deviation in how the term “organizational” should be interpreted. The broadest view was articulated in the Kenya decision, in which the majority found that whether a group is sufficiently organized depends on “whether a group has the capability to perform acts which infringe on basic human values.”32 This basic human values test33 implies that any group capable of committing a crime against humanity is intrinsically an organization as envisioned by Article 7(2)(a). The majority emphasized that whether a group meets the organizational requirement of the Rome Statute should be determined on a case-by-case basis, considering factors including whether the group has a responsible command, the means to carry out an attack, control over territory, a criminal component, an intention to attack civilians, and/or a parent organization.34 Judge Kaul is a primary opponent to this view. In his Kenya dissent, Kaul noted that several of non-English versions of the Rome Statute require that acts be perpetrated in furtherance of “the policy of a state or an organization.”35 Kaul thus determined that “even though the constitutive elements of statehood need not be established those ‘organizations’ should partake of some characteristics of a State.”36
The judgment in Katanga has become a basis for understanding the “State or organizational” component of the policy requirement.37 The Trial Chamber concluded that some sort of “structure and mechanisms” which allow a group to carry out an attack is sufficient, and that the group need not be state-like.38 Katanga therefore demands an assessment of a group’s “capacities for action, mutual agreement and coordination.”39
32 Kenya Authorization Decision, para. 90, referencing Marcel Di Filippo, Terrorist crimes and international
co-operation: critical remarks on the definition and inclusion of terrorism in the category of international crimes, 19 EUROPEAN JOURNAL OF INTERNATIONAL LAW 533 (2008), 567.
33 Charles Chernor Jalloh, What Makes a Crime Against Humanity a Crime Against Humanity?, 28 AMERICAN
UNIVERSITY INTERNATIONAL LAW REVIEW 381 (2013), 385.
34 Kenya Authorization Decision, para. 93 (footnotes omitted).
35 Kenya Authorization Decision, Kaul Dissent, para. 38 (emphasis added). 36 Kenya Authorization Decision, Kaul Dissent, para. 51.
37 See, e.g., Bemba Gombo, ICC, Trial Chamber III, Judgment pursuant to article 74 of the Statute (“Bemba Gombo
Judgment”) (Mar. 21, 2016), para. 158; Prosecutor v. Yekatom and Ngaïssona, ICC, Pre-Trial Chamber II, Decision on the confirmation of charges (Dec. 10, 2019), para. 67; Situation in the People’s Republic of Bangladesh/Republic
of the Union of Myanmar, ICC, Pre-Trial Chamber III, Decision Pursuant to Article 15 of the Rome Statute (Nov. 14,
2019), para. 63; Prosecutor v. al Hassan, ICC, Pre-Trial Chamber I, Decision on the Prosecutor’s Application for the Issuance of a Warrant of Arrest (May 22, 2018), para. 47.
38 Katanga Judgment, para. 1117-1119. 39 Katanga Judgment, para. 1120.
Chambers next must determine that the state or organization indeed possesses a policy, and that the attack is perpetrated in furtherance of that policy. The Katanga Pre-Trial Chamber concluded that the policy need not be “explicitly defined by the organizational group.”40 ICC chambers have noted that since states and organizations are unlikely to announce a policy of attacking a civilian population,41 contextual signals will instead be required to prove the policy’s existence. The Trial Chamber in Bemba articulated several criteria that might reveal an organizational policy, including an assessment of the planning, pattern, financing, statements, leadership, and motivations involved.42 The organization must “actively promote or encourage such an attack,”43 which indicates an organizational policy cannot typically be established when the organization takes a passive approach.44
The definitions of both “organization” and “policy,” according to ICC case law, are thus quite broad; the fact that a group is capable of launching attack against a civilian population is generally sufficient to demonstrate organization, and the fact that the group does indeed launch that attack is generally sufficient to demonstrate a policy.45 This expansive reading of Article 7(2)(a) grants substantial latitude to ICC chambers to draw inferences establishing a state or organizational policy, as its persisting circularity means that most attackers will automatically meet the requirement by virtue of perpetrating an attack. That is not to say that the threshold will be met in all cases,46 but the state or organizational policy threshold has become a bit clearer, and simultaneously easier to meet.
3. “Attack” Against a “Civilian Population”
40 Katanga, Pre-Trial Chamber I, Decision on the confirmation of charges (Sept. 30, 2008), para. 396. See also Bemba Gombo, ICC, Pre-Trial Chamber II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges
(“Bemba Gombo Confirmation of Charges”) (June 15, 2009), para. 81; Kenya Authorization Decision, para. 84-86.
41 Katanga Judgment, para. 1109.
42 Bemba Gombo Judgment, para. 160 (footnotes omitted). See also Situation in the Republic of Côte d’Ivoire, ICC,
Pre-Trial Chamber III, Corrigendum to “Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d'Ivoire” (Nov. 15, 2011), para. 43.
43 Elements of Crimes, INTERNATIONAL CRIMINAL COURT (2011), Art. 7, Introduction, para. 3.
44 However, see Elements of Crimes, Art. 7, Introduction, fn. 6, providing that in “exceptional circumstances,” the
policy may “be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack.”
45 See, e.g., Prosecutor v. Muthaura, ICC, Pre-Trial Chamber II, Decision on the Confirmation of Charges Pursuant
to Article 61(7)(a) and (b) of the Rome Statute (Jan. 23, 2012), para. 111-112.
46 See Prosecutor v. Mbarushimana, ICC, Pre-Trial Chamber, Decision on the Confirmation of Charges (Dec. 16,
The foundational requirement of a crime against humanity is that an act enumerated in Article 7(1) is perpetrated as part of a larger attack against a civilian population. The Rome Statute defines such an attack as “a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population.”47 The Elements of Crimes further clarify that it is not necessary that the attack be a military attack.48 The acts themselves demonstrate the existence of an attack, and “beside the commission of the acts, no additional requirement for the existence of an ‘attack’ should be proven.”49
ICC Chambers have found that in order to qualify as an attack against a civilian population in accordance with Article 7, “the civilian population must be the primary object of the attack and not just an incidental victim of the attack.”50 Drawing on jurisprudence from the ICTY and ICTR, the ICC Pre-Trial Chamber has concluded that, while it is not required that an attack target every civilian in a given area, it must be directed at more than a “limited and randomly selected group of individuals.”51 An attack has been characterized as “a campaign or operation carried out against the civilian population,”52 and can be directed at civilians of “any nationality, ethnicity or other distinguishing features.”53
“Civilian population” is yet another term left undefined in the Rome Statutes and the statutes of the ad hoc tribunals. International courts have instead turned to international humanitarian law as a source of clarity on this issue; the ICTY in Kunarac, cited favorably by the ICC in Bemba,54 drew from the Additional Protocols to the Geneva Convention to conclude that the term includes “all persons who are civilians as opposed to members of the armed forces and other legitimate combatants.”55
The conception of an attack sits at the intersection of the “widespread or systematic” and “state or organizational policy” requirements; in fact, the policy requirement was added partly in order to assist in defining the scope of an attack, as it serves to “unite[] otherwise unrelated
47 Rome Statute Art. 7(2)(a).
48 Elements of Crimes, Art. 7, Introduction, para. 3. 49 Bemba Gombo Confirmation of Charges, para. 75.
50 Bemba Gombo Confirmation of Charges, para. 76, referencing Kunarac Appeal Judgment, para. 91-92. 51 Bemba Gombo Confirmation of Charges, para. 77.
52 Kenya Authorization Decision, para. 80.
53 Bemba Gombo Confirmation of Charges, para. 76. 54 Bemba Gombo Confirmation of Charges, para. 78.
55 Prosecutor v. Kunarac, ICTY, Trial Chamber, Judgment (Feb. 22, 2001), para. 425, citing Yves Sandoz, Christophe
Swinarski, and Bruno Zimmermann (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva
inhumane acts, so that it may be said that in the aggregate they collectively form an ‘attack.’”56 The inclusion of the word “population” seems to reinforce the “widespread or systematic” requirement by preventing the application of Article 7 to crimes affecting a narrower set of civilian victims,57 as does the requirement that an attack consist of “multiple” acts.58 The “widespread or systematic” and “state or organizational policy” requirements themselves can thus be demonstrative of an attack directed against a civilian population.
Parts III and IV will focus on the constituent elements of Article 7 in the context of terrorism in general and lone wolf terrorism in particular.59 These sections will show that some cases of international terrorism in general and lone wolf terrorism in particular meet the Rome Statute’s chapeau requirements and conclude that the ICC could exercise jurisdiction over certain cases of lone wolf terrorism as crimes against humanity.
III. Interpretations of Terrorism as a Crime Against Humanity A. Role of terrorism in international criminal tribunals
The word “terrorism” does not appear in the text of the Rome Statute or its Elements of Crimes. Interestingly, however, terrorism was one of the crimes precipitating discussions about creating an international criminal court.60 For example, in 1990, the Eighth UN Congress on Crime Prevention and the Treatment of Offenders encouraged the International Law Commission to “explore the possibility of establishing an international criminal court or some other international mechanism to have jurisdiction over persons who have committed offences (including offences connected with terrorism … ).”61
56 Herman von Hebel and Darryl Robinson, Crimes Within the Jurisdiction of the Court, in Roy S. Lee ed., THE
MAKING OF THE ROME STATUTE (1999), 97.
57 Margaret deGuzman, Crimes Against Humanity, in Bartram S. Brown, ed., RESEARCH HANDBOOK ON
INTERNATIONAL CRIMINAL LAW (2011), 15.
58 Elements of Crimes, Art. 7, Introduction, para. 3.
59 For exploration on which enumerated crimes against humanity are most appropriate for prosecuting terrorism, see
Aviv Cohen, Prosecuting Terrorists at the International Criminal Court: Reevaluating an Unused Legal Tool to
Combat Terrorism, 20 MICHIGAN STATE INTERNATIONAL LAW REVIEW 2 (2012), 242; Proulx, supra note 16, 1080.
60 Cohen, supra note 59, fn. 7: “the initial idea of establishing the ICC … was originally proposed by Trinidad and
Tobago to deal with offences of drug trafficking and terrorism.”
61 Report of the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, U.N.
The ILC produced a Draft Code of Crimes against the Peace and Security of Mankind in 1991 which included “international terrorism” among the twelve enumerated crimes.62 In the ILC’s Draft Statute for an International Criminal Court in 1994, however, terrorism was not among the crimes within the jurisdiction of the proposed court.63 During Rome Statute negotiations, some state representatives expressed interest in reintroducing terrorism as a crime within the ICC’s jurisdiction, either as its own crime or within crimes against humanity.64 However, several concerns led a majority to oppose its inclusion.
The first, and most influential, was concern about the nebulous definition of terrorism.65 Though attempts had been made to define terrorism in various international fora, states were hesitant to elevate a crime of terrorism to an international judicial body while it retained such ambiguity. Several states supported including terrorism pending a review or revision process,66 but that suggestion did not bear out. Other concerns had to do with efficiency; states worried that too many crimes would overburden and undermine the credibility of the fledgling court67 and that terrorism could be adequately dealt with at the domestic level with international cooperation. 68 Crimes were divided into two categories: core crimes—genocide, aggression, war crimes, and crimes against humanity—were acts criminal under general international law and were ultimately included in the ICC’s jurisdiction. Treaty crimes—including international terrorism—were crimes of international concern established through multilateral treaties.69 Treaty crimes were considered less universal, less established, and less egregious international crimes, and were thus left out of the Rome Statute in favor of the core crimes.
Despite the absence of terrorism in the Rome Statute, in the two decades since, scholars, governmental bodies, and international courts alike have sought means to hold terrorists
62 Draft Code of Crimes against the Peace and Security of Mankind, REPORT OF THE INTERNATIONAL LAW
COMMISSION FORTY-THIRD SESSION,ILCA/CN.4/SER.A/1991/Add.l (Part 2) (1991), 97.
63 Draft Statute for an International Criminal Court, REPORT OF THE INTERNATIONAL LAW COMMISSION FORTY-SIXTH
SESSION,A/CN.4/SER.A/1994/Add.l (Part 2) (1994), 38,Art. 20.
64 15 delegations were in favor of including terrorism in the Rome Statute. Report of the Preparatory Committee on the Establishment of an International Criminal Court, OFFICIAL RECORD OF UNITED NATIONS DIPLOMATIC
CONFERENCE OF PLENIPOTENTIARIES ON THE ESTABLISHMENT OF AN INTERNATIONAL CRIMINAL COURT, A/CONF.183/13 (Vol. II) (2002) (“Preparatory Committee Report”), 175-181, 265, 281-288, 328-332, 347.
65 Id. at 172-73, 180-181; Cohen, supra note 59, at 224. 66 Id. at 172, 174, 177, 181.
67 Id. at 176.
68 Preparatory Committee Report at 176, para. 89.
69 Neil Boister, The Exclusion of Treaty Crimes from the Jurisdiction of the Proposed International Criminal Court:
accountable under international criminal law. In 2003, the ICTY in Galić employed the war crime of the “crime of terror against the civilian population,” comprised of three elements: violence directed against civilians, willful targeting of civilians, and a “primary purpose of spreading terror among the civilian population.”70 In Blagojević, the ICTY determined that “terrorising the civilian population” could be prosecuted as the crime against humanity of persecution. While the Trial Chamber acknowledged that such an act “is not found in the Statute,”71 it found that “terrorisation violates a fundamental right laid down in international customary and treaty law.”72
The ICTY thus opened a door for charges—and convictions—of terrorist acts at international criminal tribunals, even if not enumerated as independent crimes or within the listed crimes. The door was pushed open further by the Special Tribunal for Lebanon (STL), established in 2009 to prosecute those involved in the 2005 assassination of Lebanon’s prime minister. In 2011, the Appeals Chamber advised that, while only the Lebanese Criminal Code applied to the court, treaty and customary international law regarding terrorism could be taken into account as a means of interpreting Lebanese law.73
The STL thus became the first international criminal tribunal to venture a definition for terrorism under international law. The Appeals Chamber concluded that at customary international law, international terrorism during times of peace had three components: a criminal act or threat, intent to cause fear in a population or coerce a government, and a transnational element.74 Reactions were mixed, with criticisms that the definition was both over- and under-inclusive75 and that the court was not justified in finding the state practice and opinio juris necessary to establish a customary international law rule.76 Of course, the decision of an ad hoc tribunal has no binding
70 Prosecutor v. Galić, ICTY, Trial Chamber I, Judgment (Dec. 5, 2003), para. 132; affirmed by Galić, ICTY, Appeals
Chamber, Judgment (Nov. 30, 2006), para. 133.
71 Prosecutor v. Blagojević and Jokić, ICTY, Trial Chamber I, Judgment (Jan. 17, 2005), para. 589. 72 Blagojević Judgment, para. 592.
73 Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative
Charging, Special Tribunal for Lebanon, Appeals Chamber (Feb. 16, 2011) (“STL Decision”), para. 45.
74 STL Decision, para. 85. The Court stated that the transnational element was not a core criterion of terrorism, but
was required to grant terrorism an international character, but simultaneously suggested that it is required to make terrorism an international crime. STL Decision, para. 89. See Manuel J. Ventura, Terrorism According to the STL’s
Interlocutory Decision on the Applicable Law, 9 JOURNAL OF INTERNATIONAL CRIMINAL JUSTICE (2011), 1030.
75 Matthew Gillett and Matthias Schuster, Fast-track Justice; The Special Tribunal for Lebanon Defines Terrorism 9
JOURNAL OF INTERNATIONAL CRIMINAL JUSTICE (2011), 1005-1014.
76 Ben Saul, Legislating from a Radical Hague: The United Nations Special Tribunal for Lebanon Invents an
International Crime of Transnational Terrorism, LEIDEN JOURNAL OF INTERNATIONAL LAW (2011). For an opposing view, see Ventura, supra note 74.
effect on the ICC. However, the STL definition of terrorism did prompt scholars77 to revisit the role the ICC could and should play in prosecuting terrorism.
B. Terrorism as a crime against humanity
Various methods for exercising ICC jurisdiction over terrorism have been proposed by international criminal law scholars, including as a new crime in the Rome Statute78 or within one of the core crimes of war crimes79 or crimes against humanity.80 This subpart will examine the ample scholarship on why terrorist activity could be considered a crime against humanity for the purposes of ICC prosecution. The following Part will narrow in on the novel inquiry of whether “lone wolf” terrorism can be prosecuted as a crime against humanity.
The literature contains numerous discussions on the compatibility of international terror activity and crimes against humanity in the Rome Statute, both with respect to the potential to fulfill the chapeau elements (a widespread or systematic attack, in furtherance of a state or organizational policy, targeting a civilian population) and with respect to the enumerated acts constituting crimes against humanity. Many have considered the 9/11 attacks, organized and perpetrated by Al Qaeda, in the crimes against humanity context. Most arrive at the conclusion that all of the chapeau elements can be found and that, at least for similarly massive and egregious acts, terrorism can fall within the scope of crimes against humanity.81 Given that terrorism implies that the attack is committed against civilians, the focus is often on whether terrorism can meet the “widespread or systematic” and “state or organizational policy” elements.
Terrorist activity can, and often does, amount to widespread or systematic attacks as discussed in the preceding sections. Though the tribunals have regarded systematicity as a higher
77 E.g. Harmen Van der Wilt and Inez Braber, The Case for Inclusion of Terrorism in the Jurisdiction of the International Criminal Court, AMSTERDAM LAW SCHOOL LEGAL STUDIES RESEARCH PAPER NO. 2014-26 (2014), 20; Cohen, supra note 59, 230.
78 Cohen, supra note 59.
79 “Acts of terrorism” is an enumerated war crime at the ICTR. Art. 4(d). See also Sebastien Jodoin, Terrorism as a War Crime, 7 INTERNATIONAL CRIMINAL LAW REVIEW 77 (2007).
80 For discussion on terrorism’s incompatibility with the crimes of genocide and aggression, see Lucy Martinez, Prosecuting Terrorists at the International Criminal Court: Possibilities and Problems, 34 RUTGERS LAW JOURNAL
(2002), 19-26, 50.
81 See, e.g., Antonio Cassese, Terrorism is Also Disrupting Some Crucial Legal Categories of International Law, 12
threshold to meet than widespreadness,82 terrorism may be an exception to that assumption; scholars who have examined terrorism as a potential crime against humanity have emphasized the systematic nature of terror attacks more than their widespread character. Proulx, for example, notes that Al Qaeda’s organization fulfills all of the elements for systematicity laid out by the ICTY in Blaskić: a political objective, a large scale criminal act perpetrated against civilians, use of significant resources, and the implication of high level political authorities in orchestrating the plan.83 Terrorist groups such as Al Qaeda and the attacks it orchestrates are thus easy to frame in the context of the systematic attack requirement.
It is likely that some instances of terrorism can easily meet the “widespread” threshold as well, despite its relative uncertainty. Bemba Gombo defines the criterion as simply “massive, frequent, carried out collectively with considerable seriousness and directed against a multiplicity of victims … over a large geographical area or … in a small geographical area directed against a large number of civilians.”84 Because the assessment of widespreadness “is neither exclusively quantitative nor geographical, but must be carried out on the basis of the individual facts,”85 tribunals have not established a clear benchmark.
The boundaries of an attack may also be difficult to decipher, especially in the context of international terrorism, which is of course critical to an evaluation of widespreadness. For instance, Al Qaeda’s declared jihad against Western influence and Israel86 could suffice to bring all terrorist acts perpetrated to further that objective within the scope of a single attack. This would indicate extremely high numbers of victims and an expansive geographic range, as there have been dozens of attacks in the Middle East, Europe, Africa, and the United States resulting in thousands of civilian casualties over the course of about 20 years.87 If the scope is more limited, for instance restricted to Osama bin Laden’s declared fatwa against the United States, fewer acts would fall within the attack. However, “the singular effect of an inhumane act of extraordinary magnitude” can suffice to bring an attack to the level of a crime against humanity.88 As an example of the
82 See, e.g., Kriangsak Kittichaisaree, INTERNATIONAL CRIMINAL LAW (2001), 97. 83 Proulx, supra note 16; Blaskić Judgment, para. 203.
84 Bemba Gombo Confirmation of Charges, para. 83. 85 Kenya Authorization Decision, para. 95.
86 Mapping Militant Organizations, “Al Qaeda,” STANFORD UNIVERSITY. 87 Id.
narrowest form of an attack, the events of September 11th alone, orchestrated by Al Qaeda and resulting in nearly 3,000 deaths, may still constitute a sufficiently widespread attack.
With respect to state or organizational policy, it seems quite plausible that certain terrorist groups can be considered sufficiently structured to be qualifying organizations, and that those groups articulate a coherent policy to attack civilian populations. As Mazadaran notes, the ICTY in Tadić accepted the proposition that “under international law crimes against humanity can be committed on behalf of entities exercising de facto control over a particular territory but without international recognition or formal status of a de jure state, or by a terrorist group or organization.”89 Proulx points out that this expanded conception of an organization can extend international criminal jurisdiction for crimes against humanity to international terrorist groups.90
There has been some pushback to the claim that international terrorist groups can be considered organizations of the caliber the Rome Statute envisions. Van der Wilt and Braber, for example, argue that the organizational requirement mirrors the criteria for armed groups in non-international armed conflict, and thus “a non-state group which lacks the organizational proficiency to trigger an ‘armed conflict’—and is therefore technically unable to commit war crimes—would equally fail to qualify as a perpetrator of crimes against humanity in ‘peace time.’”91 However, as the Kenya and Katanga chambers have elucidated, the more liberal “basic human values” interpretation of the state or organization requirement has come to dominate at the ICC.92 Thus, if prosecutors can demonstrate that a terrorist group possesses “the capacities for action, mutual agreement and coordination,”93 chambers will likely determine they can exercise jurisdiction over crimes against humanity committed in furtherance of that group’s policies.
The evaluation of whether acts are conducted in furtherance of a terrorist group’s policy is much more straightforward and difficult to dispute. Terrorist groups are typically quite explicit in the policies they seek to advance and the connection between their goals and the acts of violence
89 Pouyan Afshar Mazandaran, An International Legal Response to an International Problem: Prosecuting International Terrorists, 6 INTERNATIONAL CRIMINAL LAW REVIEW 503(2006), 532; Tadić Judgment, para. 654
(emphasis added).
90 Proulx, supra note 16, 1079. 91 Van der Wilt, supra note 77, 13.
92 Supra Part II.B.2. A notable exception is expressed by Claus Kress, who favors Judge Kaul’s Kenya dissent and
emphasizes that the law has not developed to the point the majority suggests. Claus Kress, On the Outer Limits of
Crimes Against Humanity: The Concept of Organization within the Policy Requirement: Some Reflections on the March 2010 ICC Kenya Decision, 23 LEIDEN JOURNAL OF INTERNATIONAL LAW 855 (2010), 872.
committed.94 For example, in the mid-1990s, Al Qaeda declared a fatwa against the US government. Its leader, Osama bin Laden, stated in 1998 that “[w]e do not differentiate between those dressed in military uniforms and civilians; they are all targets in this fatwa.”95 This is a very clear organizational policy, and attacks such as the plane hijackings of 9/11 fit squarely within the organization’s policy goals.
The case law and scholarship strongly suggest that terrorist acts committed by terrorist groups can be prosecuted at the ICC as crimes against humanity. With this context in mind, this paper will now explore how a new model of terrorism, so-called “lone wolf terrorism,” fits within the same framework. In particular, it will further expand upon how the chapeau elements can be met when the perpetrator is an individual or small group, perhaps thousands of miles away from any terrorist organizations.
IV. Lone Wolf Terrorism as a Crime Against Humanity
Since much of the literature on terrorism in the ICC in the early 2000s, the players and strategies have changed. Al Qaeda was often the group of focus for international law scholars broaching the subject, and the terrorist acts considered were usually September 11th itself or other large scale attacks organized by Al Qaeda leadership and performed by its membership. In the past decade, however, new actors have emerged as the primary perpetrators of terrorism, and as the political and sociological contexts have evolved, so too have their means of committing attacks.
The Islamic State has established itself as the world’s most notable terrorist organization. The precursor to ISIS was founded in the late 1990s with the aim of destroying infidels and Shia Muslims and establishing a Sunni Islamic state.96 The group pledged allegiance to Al Qaeda in 2004 and operated as its subordinate (at least in principle) through the early 2010s.97 By 2014, Al Qaeda’s capacity was significantly reduced,98 while ISIS occupied large portions of Iraq and declared an Islamist caliphate.99
94 As discussed above, policies need not be explicit to be recognized by the ICC, but announcement of a policy is a
factor that may be considered. Bemba Gombo Judgment, para. 160.
95 John Miller, Greetings America, My Name is Osama Bin Laden, PBSNEWS (1999). 96 Charles Lister, Profiling the Islamic State, BROOKINGS INSTITUTE (2014), 6, 7. 97 Id. at 9.
98 Bruce Riedel, Al-Qaeda Today, 18 Years After 9/11, BROOKINGS INSTITUTE (Sept. 10, 2019). 99 Lister, supra note 96, 14.
The 2010s saw not only a change in the organizations in play, but new mechanisms through which these organizations could achieve their goals. Al Qaeda has emphasized the role of “electronic jihad,” using the internet for incitement, recruitment, training, and financing.100 ISIS has been particularly adept at using social media platforms for its cause, demonstrating a sophisticated understanding of how to most effectively spread its messaging on social media platforms and in multiple languages.101 The expanded use of the internet by terrorist organizations has led to an explosion of orchestrated self-radicalization.102 Some of these radicalized individuals commit acts of terrorism that are the direct and anticipated result of terrorist organization activity online. The “lone wolves” thus created by ISIS can meet the chapeau requirements of the Rome Statute’s definition of crimes against humanity.
A. Case Study: The Islamic State
This paper will now apply the chapeau elements of crimes against humanity to the lone wolf terrorist acts inspired by a single terrorist organization, ISIS. The Islamic State’s initial strategy involved dominating territory in Iraq and Syria and encouraging an influx of foreign terrorist fighters.103 Since 2014, however, ISIS has prioritized facilitating lone wolf terrorism abroad. On September 21, 2014, ISIS spokesperson Abu Mohammed al-Adnani issued a statement encouraging ISIS supporters to stay in their home countries instead of traveling to Iraq and Syria, declaring “[i]f you can kill a disbelieving American or European—especially the spiteful and filthy French—or an Australian, or a Canadian, or any other disbeliever from the disbelievers waging war, including the citizens of the countries that entered into a coalition against the Islamic State, then rely upon Allah, and kill him in any manner or way, however it may be.”104
Since that statement, ISIS has ramped up its online activity with the intention of virtually instigating and supporting potential terrorists around the world who then commit attacks of their own design. Those so-called “lone wolves,” though operating without specific direction or
100 Martin Rudner, Electronic Jihad: The Internet as Al Qaeda’s Catalyst for Global Terror, 40 STUDIES IN CONFLICT
AND TERRORISM 1 (2017), 10-11.
101 Lister, supra note 96, 24-25.
102 See Arije Antinori, From the Islamic State to the “Islamic State of Mind:” The Evolution of the “jihadisphere” and
the Rise of the Lone Jihad, 16 EUROPEAN POLICE SCIENCE AND RESEARCH BULLETIN (2017).
103 Kristin Archick, Paul Belkin, Christopher M. Blanchard, Carla E. Humud, and Derek E. Mix, European Fighters in Syria and Iraq: Assessments, Responses, and Issues for the United States, CONGRESSIONAL RESEARCH SERVICE
(Apr. 15, 2015), 40-41.
supervision from ISIS, can still meet the widespread or systematic and state or organizational policy requirements such that their actions can be considered crimes against humanity.
1. Scope of the Attack
Despite the inherent difficulties in identifying and categorizing the violence perpetrated by and on behalf of ISIS, it is apparent that there is an ongoing attack against a civilian population. From 2015 to 2017, ISIS was the deadliest terrorist organization in the world,105 and was responsible for thousands of attacks resulting in 42,418 terrorism-caused deaths between 2013 and 2018, according to data from the University of Maryland’s Global Terrorism Database.106 However, only about half of those attacks were directed at civilians, and 97 percent of ISIS committed deaths were committed within Iraq and Syria.107 A 2016 New York Times report noted that ISIS was responsible for or inspired 1,200 deaths outside of Iraq and Syria,108 while more conservative estimates indicate 691 killed and 950 wounded civilians outside of the two countries by the group directly.109
Before assessing the chapeau elements relevant for crimes against humanity, then, it is essential to discuss the parameters of the attack itself. The question becomes whether the attack on civilians in Iraq and Syria, where ISIS intended to establish its caliphate and controlled about a third of Syria and 40 percent of Iraq until 2017,110 is part of the same attack on civilians outside of those two countries. In defining the limits of an attack, Roberts has suggested three considerations that might demonstrate a single, unified attack: a common victim group, a common perpetrator, and a common motivation.111 Since the ICC and ad hoc tribunals have not provided clear guidance on how to confine an attack, and indeed no cases have been brought with the geographical scope of global terrorism, this framework is a helpful one to explore. The victim groups in this case may
105 Global Terrorism Index (“GTI”) 2019: Measuring the Impact of Terrorism, INSTITUTE FOR ECONOMICS AND PEACE
(Nov. 2019), 15.
106 Global Terrorism Database (“GTD Data”), National Consortium for the Study of Terrorism and Responses to
Terrorism; see also Annex 1.
107 GTI 2019, supra note 105, 16.
108 Karen Yourish, Derek Watkins, Tom Giratikanon, and Jasmine C. Lee, How Many People Have Been Killed in ISIS Attacks Around the World, NEW YORK TIMES (Jul. 16, 2016).
109 GTD Data.
110 Cameron Glenn, Mattisan Rowan, John Caves, and Garrett Nada, Timeline: The Rise, Spread, and Fall of the Islamic State, WILSON CENTER (Oct. 28, 2019).
in fact be divergent, with majority Muslims effected in Iraq and Syria and majority non-Muslims effected elsewhere, particularly in the US and Europe.
Whether there is a common perpetrator is tied to the central question of this paper, as the relationship of lone wolf actors with respect to the organization of ISIS is paramount. As will be discussed in more depth in the policy section, terrorist acts around the globe are committed with support from,112 and often explicitly on behalf of,113 ISIS leadership, which could be viewed as commission by ISIS as a single entity.
The motivation for ISIS’s violence in Iraq and Syria is largely based upon securing territory and controlling the resident population of that territory,114 which may appear disjointed from its goal of targeting “disbelievers” around the world.115 However, they do in fact form a single cause: establishing an Islamist caliphate. In several of their statements and publications, ISIS leaders refer to the peoples of Western countries as “crusaders” fighting against the Islamic State.116 Thus Western countries and populations are not only disbelievers, but “disbelievers waging war”117 against the caliphate the Islamic State seeks to establish, linking the motivation behind its acts within its territory to its acts without. This may show ISIS violence against civilians in Iraq and Syria and abroad is a single attack. Furthermore, as the ICTY articulated in Perišić, an individual’s acts need not be committed “in the midst of” an attack.118 Rather, an act perpetrated “before or after the main attack against the civilian population or away from it could still, if sufficiently connected, be part of that attack.”119 With this broad framework in mind, it is reasonable to conclude that terrorist acts abroad are interrelated with the attack in Iraq and Syria such that they can be considered part of the attack.
2. Civilian Population
112 Rukmini Callimachi, Not ‘Lone Wolves’ After All: How ISIS Guides World’s Terror Plots from Afar, NEW YORK
TIMES (Feb. 4, 2017); Bridget Moreng, ISIS’ Virtual Puppeteers, FOREIGN AFFAIRS (Sep. 21, 2016).
113 E.g., Alan Blinder, Frances Robles and Richard Pérez-Peña, Omar Mateen Posted to Facebook Amid Orlando Attack, Lawmaker Says, NEW YORK TIMES (June 16, 2016).
114 Alissa J. Rubin and Karam Shoumali, What Survivors of ISIS Carnage Say About al-Baghdadi’s Death, NEW YORK
TIMES (Oct. 28, 2019).
115 Bayoumy, supra note 104.
116 Thomas Hegghammer and Peter Nesser, Assessing the Islamic State’s Commitment to Attacking the West, 9
PERSPECTIVES ON TERRORISM 4(2015), 17.
117 Bayoumy, supra note 104.
118 Prosecutor v. Perišić, ICTY, Trial Chamber, Judgment (Sep. 6, 2011), para. 87. 119 Id.
As the ICC chambers have made clear, the civilian population must be the “primary objective”120 of an attack. In Iraq and Syria, and indeed in its global terrorism activities, ISIS has targeted both civilians and non-civilians in its effort to secure and maintain a caliphate.121 However, the fact that military objectives are also targets of an attack does not preclude jurisdiction so long as the attack is also aimed at a civilian population,122 as opposed to the civilian population being an “incidental victim of the attack.”123
The civilian population “comprises all those who are civilians as opposed to members of armed forces and other legitimate combatants.”124 Within Syria and Iraq, a little less than half of the ISIS casualties recorded were directed at non-civilian targets, many of which were intended to further the Islamic State’s insurgency and state-building goals.125 Despite the coinciding attack on police, military, and opposition forces, ISIS’s actions demonstrate a clear attack on civilians as well; from July 2013 to December 2018, more than 3,100 attacks were aimed at civilian targets, resulting in nearly 20,000 civilian deaths.126 This demonstrates that, though non-civilian objectives were certainly targeted by ISIS, the civilian population in Iraq and Syria was much more than an “incidental victim” and was instead a “primary objective” of the attack.
Outside of Iraq and Syria, the role of civilians as the objective of ISIS attack is even more apparent. Of the 232 attacks committed by ISIS outside of the two countries, 60 percent were aimed at civilian targets, and more than 80 percent of the casualties caused were civilians.127 That the attack was directed at civilians is even clearer when narrowing the view to Western countries, in which civilians were the victims of nearly every attack and casualty.128
In determining whether a civilian population has been targeted, tribunals take into consideration “inter alia, the means and method used in the course of the attack, the status of the victims, their number, the discriminatory nature of the attack, the nature of the crimes committed in its course, the resistance to the assailants at the time and the extent to which the attacking force
120 Bemba Gombo Confirmation of Charges, para. 76. 121 GTD Data.
122 Katanga Confirmation of Charges, para. 403: “there are substantial grounds to believe that although there was a
UPC military camp in the centre of the village and UPC soldiers were based at this military camp, the attack was not only directed against the military target but also against the predominantly Hema civilian population of the village.”
123 Bemba Gombo Confirmation of Charges, para. 76. 124 Bemba Gombo Confirmation of charges, para. 78. 125 GTD Data.
126 Id. 127 Id. 128 Id.
may be said to have complied or attempted to comply with the precautionary requirements of the laws of war.”129 ISIS violence against civilians within and beyond Iraq and Syria reveals an attack directed against a civilian population based on several of these criteria. The great majority of attacks on civilians were committed by bombings, often suicide bombings.130 With respect to discriminatory intent, much of the violence was directed at Shia Muslims in Iraq and Syria and the greater Middle East region and at non-Muslims beyond,131 perpetuating ISIS’s aim of fostering a Sunni Muslim caliphate. Most obviously, ISIS made no attempt to comply with the laws of war, and in fact publicized its goals of targeting civilian communities.132 Terrorism, by its nature, is defined by its strategic use of violence against civilians in order to foment suffering and fear.133 The Islamic State’s attack has thus been directed at a civilian population in accordance with Article 7(1) of the Rome Statute.
3. Widespread or Systematic a. Widespread
Whether an attack is widespread is determined “neither exclusively quantitative nor geographical, but must be carried out on the basis of the individual facts.”134 However, when comparing the ISIS attack on civilians to other attacks that tribunals have determined to be widespread, it is clear that the ISIS attack meets the requirements that it be “massive, frequent, carried out collectively with considerable seriousness and directed against a multiplicity of victims.”135 If the attack is defined as all terrorist acts against civilians perpetrated by ISIS, the massiveness of the attack is obvious; 2013-2018 saw 20,000 civilians killed and 22,000 wounded by ISIS terrorism.136 This number is far higher than in some ICC cases where chambers have found the existence of a widespread attack against civilians; in Katanga, for example, the Pre-Trial Chamber determined that a widespread attack existed where one act resulted in 200 civilian deaths
129 Kunarac Appeal Judgment, para. 91.
130 GTD Data: 66% of ISIS attacks against civilians used bombs/explosives, 12% were suicide attacks (23% for attacks
outside of Iraq and Syria).
131 GTD Data.
132 Bayoumy, supra note 104.
133 Van der Wilt and Braber, supra note 77. 134 Bemba Gombo Judgment, para. 163.
135 Bemba Gombo Confirmation of Charges, para. 83. 136 GTD Data.
in the context of approximately 2,700 civilians killed before and after the act.137 The ISIS attack was comprised of more than 3,400 attacks over a four-and-a-half-year period, averaging 60 attacks per month, demonstrating significant frequency and seriousness.
Even if defined narrowly, limited to acts of terror outside of Iraq and Syria committed by ISIS, the attack is of sufficient magnitude to be widespread. 758 civilians were killed by ISIS outside of Iraq and Syria from 2013 to 2018 and 2,500 were wounded in 149 attacks.138 When expanded to include attacks inspired by ISIS between 2014 and 2016, estimates are in excess of 1,200 deaths outside of Iraq and Syria.139 In comparison, the ICC in Bemba found “hundreds killed and wounded in action” and “many acts of murder and rape, and many acts of pillaging against civilians over a large geographical area” sufficient to establish a widespread attack.140 The broad reach of ISIS’s international attacks also lends itself to a determination of widespreadness.141 No matter how the scope of ISIS’s attack on civilians is delineated, then, the actions are sufficiently widespread to fulfill the gravity requirement.
b. Systematic
Though often considered to be a higher threshold, the unique characteristics of the Islamic State’s terror campaign may also qualify as a systematic attack. As articulated in the Kenya Authorization decision, the ad hoc tribunals established several criteria that demonstrate the existence of a systematic attack;142 the ICTR described such an attack as “(i) being thoroughly organised, (ii) following a regular pattern, (iii) on the basis of a common policy, and (iv) involving substantial public or private resources,”143 while the ICTY defined systematic as including “(i) a political objective or plan, (ii) large-scale or continuous commission of crimes which are linked, (iii) use of significant public or private resources, and (iv) the implication of high-level political and/or military authorities.”144
137 Katanga Confirmation of Charges, para. 409-10. 138 GTD Data.
139 Yourish, supra note 108.
140 Bemba Gombo Judgment, para. 563, 688.
141 Bemba Gombo Confirmation of Charges, para. 117: the fact that victims were from dispersed locations “strengthens
the argument that the attack was widespread since it occurred within a large geographical area.”
142 Kenya Authorization Decision, para. 96. 143 Akayesu Judgment, para. 580.
Some of these criteria fit the facts of the ISIS attack more easily than others. The requirements that the attacks be subject to a common plan or policy are certainly fulfilled in the case of ISIS, which has expressly advocated for and helped coordinate terrorist acts against non-Sunnis around the world in efforts to advance its self-proclaimed jihad.145 The attacks also tend to follow a pattern, in that almost two-thirds of the incidents are bombings.146 It could also be said that they implicate high level authorities, as the leadership of ISIS, including its leader and Caliph Abu Bakr Al-Baghdadi until his death in 2019, both knew of and actively encouraged terrorist acts. In 2015, for example, Al-Baghdadi called for Muslims around the world to either move to Iraq and Syria to fight with ISIS or to take up arms wherever they are, as the jihad “is the war of every Muslim in every place, and the Islamic State is merely spearheading that war.”147
There are some elements of systematicity on which the ISIS attack is weaker. First, the requirement that the attack be “thoroughly organized” may not encompass global ISIS attacks which are significantly decentralized. However, this decentralization is a deliberate strategy of ISIS, which has published guides for those seeking to commit terrorist acts on its behalf abroad148 and in some cases has acted as a virtual coach for aspiring terrorists.149 If in some exceptional circumstances, a “deliberate failure to take action, which is consciously aimed at encouraging such attack” can be considered a policy,150 ISIS’s outsourcing can surely be considered a policy as well. The fact that the acts and actors themselves are dispersed, therefore, does not nullify the careful planning that has taken place within the ISIS hierarchy to make these acts possible.
The least persuasive criterion for finding the ISIS attack to be systematic is the use of substantial resources. Given its decentralized nature and the fact that many of its perpetrators abroad conduct their acts independently, it is not obvious that ISIS deploys significant resources on each act of terror. However, looking at the attack as a whole reveals enormous sums of money generated and spent on advancing the ISIS attack on civilians. During the peak of its control of territory in 2015, analysts estimated that ISIS had amassed nearly US$6 billion.151 Furthermore, the group was reported to have spent US$35 to US$40 million per month paying its fighters and
145 Callimachi, supra note 112. 146 GTD Data.
147 Heather Saul, Isis leader Abu Bakr al-Baghdadi resurfaces in audio urging supporters to join terror group,
INDEPENDENT (May 15, 2015).
148 Moreng, supra note 112. 149 Callimachi, supra note 112. 150 Elements of Crimes, fn. 6.
