• No results found

Universiteit van Amsterdam (UvA)

N/A
N/A
Protected

Academic year: 2023

Share "Universiteit van Amsterdam (UvA)"

Copied!
41
0
0

Bezig met laden.... (Bekijk nu de volledige tekst)

Hele tekst

(1)

Universiteit van Amsterdam (UvA)

A possibility to prosecute ISIS members before the International Criminal Court for crimes against humanity and genocide committed against the Yazidis by

using the territoriality principle under article 12 (2) (a) Rome Statute

Noa Guldemond, noaguldemond@hotmail.nl 11309156

Master in European and International Law Track: Public International Law

Supervisor: Dhr. mr. Vincent de Graaf Submission date: 1st of July 2021 Word count: 12981

(2)

2 Abstract

This paper investigated whether there is a possibility to prosecute ISIS members for crimes against humanity such as deportation, rape, enslavement, sexual slavery and for the crime of genocide committed against the Yazidis by using the territoriality principle under article 12 (2) (a) Rome Statute.

The request of the Prosecutor to the Pre-Trial Chamber I and III (PTC I and PTC III) in 2018 and 2019 regarding the situation of the deportation of the Rohingya from Myanmar into Bangladesh has been an essential guide for this thesis. Here, the Prosecutor asked whether deportation under article 7 (1) (d) Rome Statute falls within article 12 (2) (a) Rome Statute when one legal element of the crime took place in the territory of a State Party and the PTC I and PTC III confirmed that it did. It stated that the ICC can exercise jurisdiction over crimes (in this case deportation) that started on the territory of a non-State Party but which have been partially committed on the territory of State-Party.

A possibility to prosecute ISIS members at the ICC for the crimes of deportation and genocide committed against the Yazidis has been found since part of the conduct (the actus reus of the crime) of deportation and genocide took place in State Party, Jordan. Furthermore, the requirement of the mental element (mens rea) of ‘intent’ of the perpetrators and the

‘knowledge’ that the crimes were part of a widespread or systematic attack directed against a civilian population has been established. Therefore, the ICC could have territorial jurisdiction over those crimes.

This thesis has been written with the assumption that the Prosecutor is willing to investigate the case of the Yazidis and the crimes committed against the Yazidis by ISIS members. The author is aware of the fact that Prosecutor Bensouda in 2015 stated that the Court does not have territorial jurisdiction over the crimes committed on the territory of Iraq and Syria since they are not State Parties to the Rome Statute and they did not accept the Court’s jurisdiction under article 12 (3) Rome Statute. Hence, no request has been made by the Prosecutor for the prosecution of ISIS members for the possible deportation of Yazidis from Iraq and Syria to Jordan. Therefore, the analysis and conclusion are contingent upon that the new Prosecutor, Mr Karim Khan, will request an authorization in the near future and that there will be enough evidence in order to proceed with the case. However, even then, it is not said that the ICC will have territorial jurisdiction.

(3)

3 Table of contents

List of abbreviations……….. 4

Introduction………5

Methodology………..7

Chapter 1: Jurisdiction of the ICC………..8

1.1. The limits of the jurisdiction of the ICC in prosecuting ISIS members………8

1.2. Territorial jurisdiction under article 12 (2) (a) of the Rome Statute……….10

Chapter 2: The possibility of applying the Myanmar precedent to the Iraqi/Syrian case regarding ‘deportation’ or ‘forcible transfer of population’ of the Yazidis……….13

2.1. Territorial jurisdiction of the ICC over Myanmar’s deportation of Rohingya to Bangladesh………13

2.1.1 Definition and requirements for the exercise of jurisdiction by the ICC regarding crimes against humanity………...16

2.2. Possibility of the Prosecutor of the ICC to examine the territorial jurisdiction of the Yazidi situation in Jordan by Jordan being a State Party to the Rome Statute ………..19

2.2.1. The deportation of Yazidis from Syria and Iraq to Jordan as an opening for the ICC to exercise jurisdiction, by using the territoriality principle under article 12 (2) (a) of the Rome Statute………22

Chapter 3: Possibility of prosecuting ISIS members for other crimes against humanity and genocide, committed against the Yazidis, which took partially place in the territory of a State Party to the Rome Statute………..25

3.1. Enslavement under Article 7 (1) ( c ) and rape, sexual slavery, enforced prostitution under article 7 (1) (g) of the ICC Statute regarding the Yazidi………...26

3.2. Definition of genocide and requirements for jurisdiction of the ICC regarding genocide………29

3.2.1. Deportation of the Yazidis “causing serious bodily or mental harm to members of the group” as an element of genocide under article 6 (b) Rome Statute………31

Conclusion………34

Bibliography……….35

(4)

4 List of Abbreviations

CAH- Crimes against humanity ICC- International Criminal Court ICJ- International Court of Justice

ICTY- International Criminal Tribunal for the Former Yugoslavia ICTR- International Criminal Tribunal for Rwanda

IIIM-International, Impartial and Independent Mechanism ISIS-Islamic State in Iraq and Levant

NGO-Non-governmental organization

OHCHR- Office of the High Commissioner for Human Rights OTP- Office of the Prosecutor

PCIJ- Permanent Court of International Justice PTC- Pre Trial Chamber

UN- United Nations

UNAMI- United Nations Assistance Mission in Iraq

UNITAD-Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL

UNHCR- United Nations Office of the High Commissioner for Refugees

(5)

5 Introduction

Since the rise of Islamic State (ISIS) many studies have been analysing ISIS and its members.

Within international (criminal) law, the main issue that arose was how ISIS members can be prosecuted for their atrocities, either on a national or on the international level. Different possibilities have been described, such as bringing ISIS members to the International Criminal Court (ICC), prosecuting them in national courts and bringing them to trial in (Western) countries by using universal jurisdiction.1 However, not one clear answer has been given due to difficulties in national courts and the lack of territorial jurisdiction of the ICC since neither Syria nor Iraq are State Parties to the Rome Statute which means in principle that the ICC cannot exercise territorial jurisdiction.

ISIS emerged as a terrorist group on the international stage in 20142 when it started to gain territory in Syria, Iraq and other countries and it proclaimed an Islamic State.3 Next to this, they started to commit atrocities such as the killing of people and expulsion of groups of people.4 Many atrocities were committed against the religious minority group of the Yazidi in Iraq and Syria.5 Crimes such as crimes against humanity which include deportation into Jordan (a State Party to the Rome Statute), sexual slavery, rape, forced prostitution and the crime of all crimes, namely genocide, have been committed. Institutions such as the United Nations Assistance Mission in Iraq (UNAMI), the Office of the High Commissioner for Human Rights (OHCHR), Investigative Team to Promote Accountability for Crimes committed by Da’esh/ ISIL (UNITAD) and International, Impartial and Independent Mechanism (IIIM) gathered testimony to present evidence of the crimes committed against the Yazidis to the ICC in order to hold ISIS accountable.6 UNITAD stated that it has clear evidence that genocide was committed by ISIS against the Yazidis.7

1Pieter Omtzigt and Ewelina U Ochab, “Bringing Daesh to Justice: What the International Community Can Do,” Journal of genocide research 21, no. 1 (2019):78-79

2 Riaz Hassan, “ISIS and the Caliphate,” Australian journal of political science 51, no. 4 (2016): 760.

3 Hassan, “ISIS,” 768.

4 "Iraq: Forced Marriage, Conversion for Yezidis," Human Rights Watch, accessed March 26, 2021, https://www.hrw.org/news/2014/10/11/iraq-forced-marriage-conversion-yezidis.

5 Omtzigt and U Ochab, “Bringing Daesh to Justice,” 72.

6 United Nations Security Council, Sixth UNITAD report (10 May 2021): 5. ; UNAMI/OHCHR, “A call for Accountability and Protection: Yezidi Survivors of Atrocities Committed by ISIL,” Office of the United Nations High Commissioner for Human Rights United Nations Assistance Mission for Iraq – Human Rights Office, August 2016:4.

7 Ibid 6.

(6)

6 Yazidis see themselves as an ethnic group and are not Muslims.8 The fact that Yazidis are not Muslims could have been a leading factor in the decision by ISIS to destroy the group, since they are considered “followers of the Devil”9 who should be murdered or convert to Islam.10 Given the gravity of the crimes committed by ISIS, the international community wondered which legal path had to be followed in order to not only prosecute ISIS members but also to bring justice to the victims of ISIS.11

The International Criminal Court has been set up in 1998 with the adoption of the Rome Statute which gave rise to the first permanent International Criminal Tribunal with

jurisdiction to prosecute individuals for the most serious crimes, such as genocide, crimes against humanity, war crimes and the crimes of aggression.12 The Rome Statute combines territorial and personal jurisdiction as explained in article 12 Rome Statute. There is a

limitation to the Court’s jurisdiction: states have to become a State Party to the Rome Statute and only then, the Court is allowed to prosecute individuals of the State Parties for the four mentioned crimes and can exercise jurisdiction over crimes that are committed on the

territories of State Parties. 13 Moreover, the ICC can only act if States are unable or unwilling to prosecute the perpetrators themselves. Jordan will not be able to prosecute ISIS members which it has not and cannot capture.

A logic step of the international community would be to prosecute the individuals before the ICC since the atrocities by ISIS members amount to the most serious crimes that exist.

Therefore, the question that arises is: How can ISIS members be prosecuted before the ICC for crimes against humanity and genocide committed against the Yazidis by using the territoriality principle under article 12 (2) (a) Rome Statute?

In order to analyse this possibility, this paper will discuss how the prosecutorial challenges regarding jurisdiction of the ICC can be dealt with. First of all, jurisdiction of the ICC will be briefly discussed. Following, the author will discuss if the acceptation of the PTC I and PTC III on whether the crime against humanity of deportation under article 7 (1) (d) falls within article 12 (2) (a), regarding the deportation of Rohingya into Bangladesh, is a precedent for

8 Samvel M Kochoi, “The Crime of All Crimes” of the Terrorist Organization “Islamic State”: The Yazidis Genocide,” Kutafin University Law Review 4, no. 1 (2017): 203.

9 Ibid 8.

10 Ibid 8.

11 Omtzigt and U Ochab, “Bringing Daesh to Justice,” 77.

12 Rome Statute, article 5. ; “About the Court,” International Criminal Court, accessed March 26, 2021, https://www.icc-cpi.int/about.

13 Kenny Cóman, “Prosecuting Crimes of International Concern: Islamic State at the ICC,?”Utrecht journal of international and European law 33, no. 84 (2017):122.

(7)

7 the situation of the Yazidis and their deportation into Jordan. The analysis of this research will be focused on the issue if the ICC could have jurisdiction over Syrian/Iraqi ISIS members on the basis of (objective) territorial jurisdiction under article 12 (2) (a) of the Rome Statute for crimes which, at least partially, occurred on the territory of one of the State Parties to the Rome Statute. Lastly, this paper will research if the ICC could have jurisdiction over crimes against humanity (such as deportation under article 7 (1) (d) and rape under article 7 (g) Rome Statute) and if it could have jurisdiction over the genocide (article 6 Rome Statute) committed against the Yazidis.

Methodology

In order to address the main question, a descriptive approach will be used to explain what kind of crimes have been committed by ISIS members against the Yazidis and to describe the (territorial) jurisdiction of the ICC. A normative approach will be used to analyse the

Myanmar ‘precedent’ and how this can be applied to the Syrian/Iraqi case in order to possibly prosecute ISIS members at the ICC. A part of the thesis has an anticipating feature since the thesis is based on the presumption that the case of the Yazidis will be investigated by the Prosecutor of the ICC.

For the research, both primary and secondary sources of law will be used.

Primary sources consist of jurisprudence of courts such as the ICC, the ICTY, ICTR and of reports of non-governmental organisations such as Amnesty, Human Rights Watch, Yazda and international conventions. Secondary law consists of books and articles written by academics and lawyers.

(8)

8 Chapter 1: Jurisdiction of the ICC

This chapter analyses the ICC’s (territorial) jurisdiction and its limits in order to find out if the ICC is able to prosecute ISIS members.

1.1. The limits of the jurisdiction of the ICC in prosecuting ISIS members

In order to start a preliminary examination, it has to be established whether the Court has jurisdiction over the particular case. The Statute has given the Court jurisdiction over four main crimes which include genocide, crimes against humanity, war crimes and crimes of aggression.14 The jurisdiction of the ICC has several aspects. First of all, in article 11 (1) of the Rome Statute, it states that the Court has jurisdiction over the crimes that have been committed only after the entry into force of the Statute.15

Besides, the Court can only exercise its jurisdiction in three ways. This means that the Court can exercise its jurisdiction over crimes referred to in article 5 of the Statute only if; “A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14; or when “A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or when

“The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.”16 The Rome Statute does not include universal jurisdiction.17 Moreover, only when states are unwilling or unable, the ICC can start an investigation according to article 17 (1) (a) Rome Statute.

One of the main features of modern public international law is State consent.18 Nothing in international law is binding upon States until they decide to bind themselves to it.19 States see consent as a State’s sovereign right to choose to adhere to a treaty, customary law or another source of international law. If a State has consented to a treaty, it is only bound by it at the moment the treaty enters into force.20 If a State decides to bind itself to the treaty, it is obliged

14 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) United Nations, Treaty Series, vol. 2187, No. 38544, article 5 Rome Statute.

15 Article 11 (1) Rome Statute.

16 Article 13 Rome Statute.

17 KipHale and Melinda Rankin, “Extending the ‘System’ of International Criminal Law? The ICC’s Decision on Jurisdiction over Alleged Deportations of Rohingya People,” Australian journal of international affairs 73, no. 1 (2019):22.

18 Christoph Stumpf, “Consent and the Ethics of International Law Revisiting Grotius’s System of States in a Secular Setting,” Grotiana (1980) 41, no. 1 (2020): 165.

19 Jutta Brunnée, Consent. Oxford University Press, n.d: 2.

20 Ibid 19.

(9)

9 to not violate the obligations arising from the treaty. Territorial jurisdiction in international law has been described in the Lotus case where the Permanent Court of International Justice (PCIJ) declared that jurisdiction was a State’s sovereign right and that jurisdiction to enforce only may be exercised within the territory of a State.21 This means that the ICC only has jurisdiction over crimes committed in States which are Parties to it and over the nationals of these Parties according to article 12 (2) (a) and (b) Rome Statute because those States decided to bind themselves to the Statute.

Having described how far the jurisdiction of the ICC stretches, it can be stated that the

jurisdiction of the ICC is quite limited. This is due to the fact that there are only three ways to exercise its jurisdiction as described above. Besides, it only has jurisdiction over the four main crimes and not all countries have become parties to the Rome Statute.

One of the jurisdictional obstacles of the ICC arises in situations when one of the four crimes is committed, but when they take place in non-State Parties. Therefore, not that many cases have been brought before the Court. Until now, only 30 actual cases have been tried by the Court since the establishment of the ICC.22 However, many more cases are under

investigation or part of a preliminary examination as spelled out in the Report on Preliminary Examination Activities 2020.

This jurisdictional limit can be immediately linked to the focus of this research, since neither Iraq nor Syria are State Parties to the Rome Statute, which in principle does not grant

jurisdiction to the ICC over the genocide on the Yazidis and over other atrocities committed by ISIS during its control over the territory of the ‘caliphate’.23 However, there is a possibility of a non-State Party recognising the Court’s jurisdiction on an ad hoc basis which is spelled out in article 12 (3) Rome Statute.24 Examples of non-State parties who accepted the

jurisdiction of the ICC on an ad hoc basis are Ukraine in 2014 and Palestine in 2009.25

21 M. (Michalēs) Vagias and John Dugard. The Territorial Jurisdiction of the International Criminal Court, Cambridge: Cambridge University Press, 2014: 13. ; SS Lotus (France v Turkey) [1927] PCIJ Series A. No. 10

22“About the Court,”International Criminal Court, accessed March 28, 2021, https://www.icc-cpi.int/about.

23 “The State Parties to the Rome Statute,” International Criminal Court, accessed March 28, 2021,

https://asp.icccpi.int/en_menus/asp/states%20parties/Pages/the%20states%20parties%20to%20the%20rome%20 statute.aspx .

24 Article 12 (3) Rome Statute.

25 “Ukraine accepts ICC jurisdiction over alleged crimes committed between 21 November 2013 and 22

February 2014,” International Criminal Court, accessed April 19, 2021, https://www.icc-

cpi.int/Pages/item.aspx?name=pr997&ln=en. ; “Non-state entity’s ‘Ability to lodge’ a Declaration pursuant to Article 12(3) of the ICC Statute,” Questions of International Law, accessed April 19, 2021, http://www.qil- qdi.org/non-state-entitys-ability-to-lodge-a-declaration-pursuant-to-article-123-of-the-icc-statute/.

(10)

10 Besides, the Security Council tried to refer the case of Syria to the ICC in 2014 by trying to adopt a resolution but this attempt was vetoed by Russia and China.26

1.2. Territorial jurisdiction under article 12 (2) (a) of the Rome Statute

Territorial jurisdiction means that a State has jurisdiction over all acts committed on its territory and over the people who are present on its territory.27 However, under customary international law States can also have territorial jurisdiction, if a part of the crime took place in another State, as long as there is a link with their own territory.28 For the ICC, article 12 of the Rome Statute describes the preconditions for the exercise of jurisdiction ratione materiae.

This article states that the Court has jurisdiction over crimes that have been committed on the territory of a State Party (12) (2) (a) (ratione loci) and when the State of which the person accused of the crime is a national (12) (2) (b) (ratione personae).29

There exists subjective and objective territoriality. The former refers to the fact that a State has jurisdiction over all acts that are completed abroad but that were planned on the territory of the State (the State where the crime commenced).30 The latter refers to the jurisdiction of a State over an act that has been committed on its territory but where some elements were committed in another State,31(where the consequences are felt).32 To illustrate, this would enhance a situation in which a gun is fired from the territory of a State, but kills a person in the territory of another State.33 It is now recognized that in both subjective and objective cases, States can have jurisdiction if they have a connection to the conduct in question.34 Article 12 Rome Statute seems to only include objective territoriality since article 12 (2) (a)

26 “Russia, China block Security Council referral of Syria to International Criminal Court,” UN NEWS, accessed April 20, 2021, https://news.un.org/en/story/2014/05/468962-russia-china-block-security-council-referral-syria- international-criminal-court. ; UNSC, ‘Referral of Syria to International Criminal Court Fails as Negative Votes Prevent Security Council from Adopting Draft Resolution’ (2014) SC/11407.

27 Anders Henriksen, International Law, Oxford University Press: 85.

28 Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the People’s Republic of Bangladesh/Republic of

the Union of Myanmar , International Criminal Court, Pre-Trial Chamber III -01/19-27 14-11-2019: para 58.

(hereafter, ICC-01/19-27 14-11-2019)

29William A. Schabas, “Part 2 Jurisdiction, Admissibility, and Applicable Law: CompéTence, Recevabilité, Et Droit Applicable, Art.12 Preconditions to the Exercise of jurisdiction/Conditions Préalables à L’exercice de La Compétence,” In The International Criminal Court, Oxford University Press, 2016: 344. ; Article 12 Rome Statute.

30 Douglas Guilfoyle, “The ICC Pre-Trial Chamber Decision on Jurisdiction over the Situation in Myanmar,” Australian journal of international affairs 73, no. 1 (2019):4.

31 Henriksen, International Law, 85-86.

32 Ibid 30.

33 ICC-01/19-27 14-11-2019: para 124 fn 258.

34 Markus Wagner, “The ICC and Its Jurisdiction - Myths, Misperceptions and Realities,” Max Planck yearbook of United Nations law 7, no. 1 (2003): 485.

(11)

11 only describes “the State on the territory on which the conduct in question occurred” and does not further elaborate on what is meant by this phrase.35 A problem can arise when for example conduct has partially happened in the territory of a State Party, but the principal element of the crime has been committed in a non-State Party. The way article 12 (2) (a) should be interpreted is not clear and hereby the question if article 12 (2) (a) Rome Statute grants jurisdiction to the ICC for both subjective and objective territory is left open.36 In 2009, a Working Group of negotiators tried to overcome this unclear provision and suggested to include the text: “[i]t is understood that jurisdiction based on the territoriality principle relates both to the territory in which the conduct itself occurred and the territory in which its consequences occurred.”37 However, this part focused on the crime of aggression and was not included in the article since the negotiators did not find consensus. Hence, the Statute gives little guidance on the interpretation of article 12 (2) (a).

According to Markus Wagner, it is not left open when the ICC has jurisdiction. He states:

“Thus, in a situation in which poison is delivered by an airplane flying over its own territory but in which this agent is — e.g. by way of a rocket or a similar device — dispersed over the territory of a State party, the ICC-Statute would grant jurisdiction over this conduct” and therefore, the ICC does have jurisdiction as long as the effects of the conduct take place on the territory of a State Party”.38 An interesting feature of article 12 (2) (a) is the term

‘conduct’ and how this is relevant in the context of territorial jurisdiction. Conduct has been described as “the plain meaning of the word ‘conduct’ indicates that it is best defined as a form of behaviour, encompassing more than the notion of an act. Nonetheless, apart from suggesting that it must be more than a mere act, the plain meaning of conduct does not indicate what it is that must take place on the territory of one or more State Parties.”39 The definition remains rather vague.

The ubiquity theory explains that States can exercise territorial jurisdiction when in their territory “a constituent element of a crime has occurred, whether it was the initial conduct, the eventual effects of the crime, or even some intermediate acts.”40 In the wording of article 12 (2) (a) it seems as if the ICC would only have jurisdiction over a crime of which the conduct

35 Vagias and Dugard, The Territorial Jurisdiction of the International Criminal Court, 79.

36 Vagias and Dugard, The Territorial Jurisdiction of the International Criminal Court, 80.

37 Report of the Special Working Group on the Crime of Aggression, Annex II, ICC-ASP/7/20/Add.1, para 39.

38 Ibid 34.

39 ICC-01/19-27 14-11-2019: para 46.

40 Cedric Ryngaert, “Territorial Jurisdiction Over Cross-Frontier Offences: Revisiting a Classic Problem of International Criminal Law,” International criminal law review 9, no. 1 (2009): 208.

(12)

12 took place on the territory of a State Party. However, in that same article the Rome Statute holds: “or, if the crime was committed on board a vessel or aircraft.”41 This would imply that the ICC does have jurisdiction over the whole crime and not only over the conduct.

The travaux préparatoires do not clarify this difference but there seems no reason to believe that there is a difference in the meaning of the chosen words.42 PTC III stated: “a contextual reading of the provision allows an inference to be drawn that the juxtaposition of ‘conduct in question’ on the territory of a State immediately before ‘crime’ committed on board a vessel or aircraft means that the notions of ‘conduct’ and ‘crime’ in article 12(2)(a) of the Statute have the same functional meaning.”43 Furthermore, PTC III gave an explanation on the act and the consequence since “depending on the nature of the crime alleged, the actus reus element of conduct may encompass within its scope, the consequences of such conduct. For instance, the consequence of an act of killing is that the victim dies. Both facts concerning the act and the consequence (i.e. the killing and the death) are required to be established.”44 Even though the PTC’s reasoning is not totally in line with article 12 (2) (a), the consequence of the conduct and the actus reus element of conduct can grant territorial jurisdiction

according to the PTC.

41Article (12) (2) (a) Rome Statute.

42 ICC-01/19-27 14-11-2019: para 48.

43 Ibid 42.

44 ICC-01/19-27 14-11-2019: para 50.

(13)

13 Chapter 2: The possibility of applying the Myanmar case to the Iraqi/Syrian case

regarding ‘deportation’ or ‘forcible transfer of population’ of the Yazidis 2.1. Territorial jurisdiction of the ICC over Myanmar’s deportation of Rohingya to Bangladesh

This chapter investigates the possibility of applying the Myanmar case to the Iraqi/Syrian case regarding ‘deportation’ or ‘forcible transfer of population’ of the Yazidis and this will be done by analysing the PTC I and PTC III judgments.

The focus will lay on article 12 (2) (a) Rome Statute in the context of the circumstances of the Rohingya in Myanmar and Bangladesh and the application of this case to the situation of the Yazidis. The situation of the Rohingya in Myanmar has been described by the UN as “a textbook example of ethnic cleansing, bearing the hallmarks of a genocide.”45 Due to the atrocities committed against the Rohingya, many of the people were forced to flee into Bangladesh. It is estimated that around 700.000 Rohingya were forcibly deported into the neighbouring country.46 Myanmar is not a State Party to the Rome Statute which implies that the ICC does not have jurisdiction unless the UN Security Council would refer the case to the Court under Chapter VIII of the UN Charter, which did not happen.47

A solution for the Court’s lack of jurisdiction had to be found. In 2018, the Prosecutor requested the PTC I under article 19 (3) of the Rome Statute whether the crime against humanity of deportation under article 7 (1) (d) falls within article 12 (2) (a), when one element of the deportation was committed on the territory of a State Party, and if this would grant jurisdiction to the ICC.48 In 2019, the Prosecutor asked the PTC III the authorisation of an investigation into the situation of Myanmar and Bangladesh.49 This is a procedure under article 15 (3) of the Rome Statute.50 The Chamber’s decisions will be discussed and if this has led to the fact that the ICC has jurisdiction over this matter. If this can be answered positively, it will be discussed if the Myanmar case is a precedent for future cases, such as the

45 Payam Akhavan, “The Radically Routine Rohingya Case,” Journal of international criminal justice 17, no. 2:

326.

46 Ibid 45.

47 Ibid 45.

48Decision on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute,”

Request under Regulation 46 (3) of the Regulations of the Court, [2018] Pre-Trial Chamber I, International Criminal Court-RoC46(3)-01/18 6 September 2018: 27. (hereafter, ICC-RoC46(3)-01/18)

49 ICC-01/19-27 14-11-2019.

50 Article 15 (3) Rome Statute.

(14)

14 Iraqi/Syrian case regarding the deportation of Yazidi into a neighbouring country which happens to be a State Party, Jordan.

Myanmar is not a State Party but Bangladesh is a state party to the Rome Statute and this could mean that because the deportation of the Rohingya has ended on the territory of a State Party, it would give territorial jurisdiction to the ICC.51 The Prosecutor stated in her request that article 12 (2) (a) could be broadly interpreted. This means that it is sufficient if only one legal element of a crime under article 5 took place in the territory of a state party.52 The PTC I stated in its decision: “the Chamber is of the view that acts of deportation initiated in a State not Party to the Statute (through expulsion or other coercive acts) and completed in a State Party to the Statute (by virtue of victims crossing the border to a State) fall within the parameters of article 12(2)(a) of the Statute.”53 The PTC III concluded that “The only clear limitation that follows from the wording of article 12(2)(a) of the Statute is that at least part of the conduct (i.e. the actus reus of the crime) must take place in the territory of a State Party.”54 This implies that one legal element means ‘part of the conduct,’ that it is necessary that the crime partially takes place on the territory of a Party to the Rome Statute and that it has a cross-border character in order to grant jurisdiction to the ICC.

The Myanmar/Bangladesh PTC I decision is important and can have a huge impact on future cases, such as the Syrian/Iraqi case. The decision of the Chamber opens the door to the ICC in the Hague even in cases where there is no jurisdiction at first sight.

However, there were some critiques about the decision since Myanmar is not a State-Party to the Rome Statute and thereby did not grant jurisdiction to the ICC over crimes committed on its territory.55 The critique is focused on the fact that this decision expands the Court’s

jurisdiction without consent of the sovereign State in question.56 The ICC has been accused of

“jurisdictional overreach.”57 This ‘jurisdictional overreach’ is connected to the earlier

mentioned consent principle of international law which entails that States themselves decide if they want to be bound by a treaty. In this case, the ICC would go beyond a State who has decided not to be a Party to the Rome Statute since the Court stated it anyhow had jurisdiction over crimes that partially took place in the territory of a non-State Party. The Court did give

51 Akhavan, “The Radically Routine Rohingya Case,” 325.

52 ICC-RoC46(3)-01/18: para 63.

53 ICC-RoC46(3)-01/18: para 73.

54 ICC-01/19-27 14-11-2019:para 61.

55Hale and Rankin, “Extending the ‘System’ of International Criminal Law?” 23.

56Ibid 55.

57 Akhavan, “The Radically Routine Rohingya Case,” 329.

(15)

15 the Myanmar and Bangladesh authorities the opportunity to ‘submit observations’, but

Myanmar formally objected.58 It is therefore reasonable to believe that Myanmar will

challenge the court’s jurisdiction. An important remark is that the ICC to date did not manage to prosecute cases without the help of the territorial State where crimes were committed or commenced.59 In case of a non-State Party this seems even more difficult.

Moreover, the Prosecutor’s request was filed before making use of article 13 Rome Statute, which is normally the procedure to follow. A critique therefore is that the request was made too soon since no investigation proprio motu had been started under article 15 Rome State.60 Besides, it was the first time the Prosecutor made a request under article 19 (3) Rome Statute which is unusual.61 On the other hand, it can be argued that it is logical that the ICC has jurisdiction over crimes committed in a State Party, even though some parts of the crimes were committed in a non-State Party since the crimes cannot go unpunished.62 Besides, the principle of international law known as compétence de la compétence holds that international tribunals can determine their own jurisdiction63 and the ICC reconfirmed this right.64

The acceptance by the PTC I of September 2018 is an important development. With its decision, the PTC I implied that the ICC can have jurisdiction over crimes (in this case deportation) that started on the territory of a non-State Party but which have been partially committed on the territory of a State-Party. 65 PTC III confirmed the PTC I judgment by stating that ‘part of the conduct’ must take place in the territory of a State Party and allowed the Prosecutor to start an investigation.66It can be stated that on the basis of the Myanmar case, the PTC ruling is a precedent for future situations in which it seems that jurisdiction is not immediately visible for the ICC.

Academics, lawyers and others have come up with the argument that the decision of the Chamber may apply to the case of Syria (civil war and ISIS atrocities against Yazidis). This was suggested at the Guernica Group in 2019 by a group of lawyers.67 In order to find out if

58 Hale and Rankin, “Extending the ‘System’ of International Criminal Law?” 25-26.

59 Douglas Guilfoyle, “The ICC Pre-Trial Chamber Decision on Jurisdiction over the Situation in Myanmar,” 5.

60 MICHAIL VAGIAS, “The Prosecutor’s Request Concerning the Rohingya Deportation to Bangladesh:

Certain Procedural Questions,” Leiden journal of international law 31, no. 4 (2018): 989.

61 Vagias, “The Prosecutor’s Request Concerning the Rohingya Deportation to Bangladesh” 982.

62 Hale and Rankin, “Extending the ‘System’ of International Criminal Law?” 25.

63 ICC-RoC46(3)-01/18 6 September 2018: 30.

64 Hale and Rankin, “Extending the ‘System’ of International Criminal Law?” 24.

65 ICC-RoC46(3)-01/18: para 72.

66 ICC-01/19-27 14-11-2019: para 61.

67 “The Guernica Centre Files Second Submission on the Situation in Syria/Jordan to the ICC Prosecutor,”

Guernica Group, accessed June 5, 2021, https://www.guernicagroup.org/post/the-guernica-centre-files-second-

(16)

16 this is the case, it has to be researched if the Yazidi were deported within the meaning of article 7 (1) (d) and that one legal element of this deportation took place in the territory of a State Party. In the case of the Yazidis, it is helpful to look at Jordan, since it is a State Party to the Rome Statute. In order to establish this possibility, it is necessary to look for evidence which shows that the Yazidi were indeed deported to Jordan which could lead to territorial jurisdiction of the ICC under article 12 (2) (a) Rome Statute. First of all, the definition and requirements for jurisdiction of the ICC regarding crimes against humanity will be described.

2.1.1 Definition and requirements for the exercise of jurisdiction by the ICC regarding crimes against humanity

Regarding the situation of the Yazidis, it is clear that genocide, crimes against humanity and war crimes have been committed against them by ISIS. In the case of the atrocities against the Yazidis, there is no territorial jurisdiction under article 12 (2) (a) Rome Statute since the crimes did not take place on the territory of a State Party.

Trials are however being held in domestic courts of State Parties by using the nationality principle, highlighting a German case where the wife of an ISIS fighter has been accused of murder for a 5 year old Yazidi girl.68 Further, the Higher Regional Court of Düsseldorf has convicted a German woman for war crimes and helping ISIS members to commit crimes against humanity against a Yazidi woman. She was sentenced for four years and three months in jail.69

The complementarity principle is important in this context. This principle implies that States have jurisdictional priority which means that first of all jurisdiction is a State’s domestic affair.70 This principle is linked to the principle of State sovereignty, a State has the right to exercise criminal jurisdiction over crimes committed within its boundaries.71 The

complementarity principle takes into account the wish of State Parties, if both willing and able

submission-on-the-situation-in-syria-jordan-to-the-icc-prosecutor. ; “The ICC and the Deportation of Civilians from Syria to Jordan,” Opinio Juris, accessed April 23, 2021, https://opiniojuris.org/2019/03/25/the-icc-and-the- deportation-of-civilians-from-syria-to-jordan/.

68 “German Woman Goes On Trial in Death of 5-Year-Old Girl Held as ISIS Slave,” The New York Times,

“accessed 23 April, 2021, https://www.nytimes.com/2019/04/09/world/europe/germany-isis- trial.html?action=click&module=RelatedLinks&pgtype=Article.

69 “ISIS member convicted of crimes against humanity for aiding and abetting enslavement Yazidi woman,”

Doughty Street Chambers, accessed May 3, 2021, https://www.doughtystreet.co.uk/news/isis-member- convicted-crimes-against-humanity-aiding-and-abetting-enslavement-yazidi-woman.

70 Jo Stigen, The Relationship Between the International Criminal Court and National Jurisdictions: the Principle of Complementarity Boston: Martinus Nijhoff Publishers, 2008: 470.

71 Stigen, The Relationship Between the International Criminal Court and National Jurisdictions: the Principle of Complementarity: 15.

(17)

17 to prosecute the ISIS fighters who are their nationals in domestic courts. This entails that if the State Parties decide to prosecute their nationals at home, the ICC cannot exercise jurisdiction. However, if a State is ‘unwilling or unable genuinely to carry out the

investigation or prosecution’ according to article 17 (1) (a) Rome Statute, then the ICC can exercise jurisdiction.72 This concept is an important feature of the Rome Statute and shows the relationship between the ICC and the State Parties.73 The complementarity principle maintains a balance between “ensuring the effective prosecution of international crimes and

safeguarding sovereignty.”74 In order to analyse if ISIS members can be brought to trial before the ICC for the crime of deportation as part of crimes against humanity it is necessary to describe what is meant by this crime. The definition of this atrocity will be discussed and it will be applied to the case of the crimes committed by ISIS against Yazidis.

Since the establishment of the ICC, article 5 Rome Statute describes that crimes against humanity is one of the four most serious crimes over which the Court has jurisdiction. Article 7 (1) of the Rome Statute defines what is meant by this. It includes murder, extermination, enslavement, deportation or forcible transfer of population, imprisonment, torture, rape, sexual slavery and several other inhumane acts.75 These various acts are considered to be crimes against humanity only when they are perpetrated “as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack.”76 In the ICTY Erdemovic case, the Court has elaborated on the meaning of crimes against humanity and it held: “Crimes against humanity are serious acts of violence which harm human beings by striking what is most essential to them: their lives, liberty, physical welfare, health, and/or dignity. They are inhumane acts that by their extent and gravity go beyond the limits tolerable to the international community ... But crimes against humanity also transcend the individual because when the individual is assaulted, humanity comes under attack and is negated. It is therefore the concept of humanity as victim which essentially characterizes crimes against humanity.”77

72 Wagner, “The ICC and Its Jurisdiction,” 490. ; Article 17 (1) (a) Rome Statute.

73 Olympia Bekou, “In the Hands of the State: Implementing Legislation and Complementarity,” In The International Criminal Court and Complementarity, 830-852, Cambridge University Press, 2011: 830.

74 Stigen, The Relationship Between the International Criminal Court and National Jurisdictions: the Principle of Complementarity: 17.

75 Article 7 (1) Rome Statute.

76 Ibid 75.

77 Prosecutor v Drazen Ermedovic [1196] ICTY IT-96-22-T, para 28.

(18)

18 Moreover, in the ICTY Tadic case, the Court held that “to convict an accused of crimes against humanity, it must be proved that the crimes were related to the attack on a civilian population (occurring during an armed conflict) and that the accused knew that his crimes were so related.”78 However, nowadays it is not required that there is an armed conflict, according to article 7 (2) (a) Rome Statute since it states: “ “Attack directed against any civilian population” means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack”79 and the attack does not need to constitute a military attack as stated in the Element of Crimes article 7 (3).

For this particular research, deportation or forcible transfer of population under article 7 (1) (d) is the main focus as being a crime against humanity. This is defined in article 7 (2) (d) as

"Deportation or forcible transfer of population" means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law.”80 This entails that a person has a visa or a document to enter or remain in the country or is a citizen of that country.81 The element of expulsion or coercive acts “may be carried out by the perpetrator either by

physically removing the deportees or by coercive acts that cause them to leave the area where they were lawfully present. In such a situation, the victims’ behaviour or response as a

consequence of coercive environment is required to be established for the completion of the crime.”82

The population this research talks about are the Yazidis. In 2015, the Report of the Office of the United Nations High Commissioner for Human Rights (OHCHR) stated that the crimes which were perpetrated by ISIS and its members involved genocide, war crimes and crimes against humanity against Yazidis, Christians and other ethnic groups.83 Specifically regarding

78 Prosecutor v Tadič [1999] ICTY IT-94-1-A, para 271.

79 Article 7 (2) (a) Rome Statute.

80 article 7 (2) (d) Rome Statute: "Deportation or forcible transfer of population" means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law.

81 VINCENT CHETAIL, “Is There Any Blood on My Hands? Deportation as a Crime of International Law,” Leiden journal of international law 29, no. 3 (2016): 925.

82 ICC-01/19-27 14-11-2019: para 52.

83 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’ (27 March 2015) A/HRC/28/18, para 16.

(19)

19 the Yazidis, the crimes amounted to “acts that caused serious bodily or mental harm”84 and the murder of Yazidi civilians.

2.2. Possibility of the Prosecutor of the ICC to examine the territorial jurisdiction of the Yazidi situation in Jordan by Jordan being a State Party to the Rome Statute

Just as with the Bangladesh/Myanmar case, the (Office of the) Prosecutor can start an investigation on her/his own initiative after an authorisation of the judges.85 This entails that the Prosecutor should consider if the legal requirements are met before she/he presents the case to the judges. These are the preliminary examinations, such as to have the certainty that the crimes were committed after the entry into force of the Statute, if the crimes include one of the four crimes within the Court’s jurisdiction, if they were committed on the territory of State Parties and if there are not yet investigations taking place at the domestic level into the same substance matter.86 If these conditions are met, the Prosecutor can file the request before the judges. May the judges accept the request of the Prosecutor, the OTP can start

investigations in order to gather evidence for the claim.

The Yazidi case is very similar to the situation of the Rohingya. If it can be determined that the Yazidi have experienced deportation from the territory of a non-State Party to the territory of a State-Party (Jordan) where at least one element of the crime within the jurisdiction of the Court took place in a State Party, it can be said that the ICC has territorial jurisdiction under article 12 (2) (a).87 The Prosecutor could start with gathering information and evidence from witnesses and victims in order to get a clear overview of the atrocities committed by ISIS which happened in Syria and Iraq in relation to the Yazidis. This is an essential aspect since it can be helpful to determine that Yazidis were forced to flee into Jordan.

There are several documents from the UN, Human Rights Watch and Amnesty International which prove that hundreds of thousands of Syrians have fled to Jordan.88 The United Nations High Commissioner for Refugees (UNHRC) counted over 650.000 Syrian refugees in Jordan,

84 OHCHR, ‘Report on the Human Rights Situation in Iraq,” para 17.

85 Article 15 (1) Rome Statute. ; Prosecutor Fatou Bensouda will be followed by Mr Karim Khan.

86 “Office of the Prosecutor,” International Criminal Court, accessed April 27, 2021, https://www.icc- cpi.int/about/otp.

87 ICC-RoC46(3)-01/18: para 72. ; “ICC Prosecutor, Fatou Bensouda, requests judicial authorisation to commence an investigation into the situation in Bangladesh/Myanmar,” International Criminal Court, accessed April 27, 20221, https://www.icc-cpi.int/Pages/item.aspx?name=pr1465.

88 “Syrian refugees in Jordan: A protection overview- January 2018,” Reliefweb, accessed April 27, 2021, https://reliefweb.int/report/jordan/syrian-refugees-jordan-protection-overview-january-2018. ; “Escape from Hell. Torture and Sexual Slavery in Islamic State Captivity in Iraq,” Report by Amnesty International 2014.

(20)

20 back in 2017.89 However, there is no distinction in most of the reports between Syrian

refugees and Yazidis which makes it complicated. But there are indications that many (thousands)90 Yazidis fled to Jordan.91

Furthermore, a legal difficulty arises in the case of the deportation of Yazidis from Iraq/Syria into Jordan. The crime of deportation as being part of a crime against humanity has two requirements that need to be met. The first is the actus reus of deportation which means in this case that the Yazidis need to be forcibly deported from places where they were ‘lawfully present’ into other areas, such as a neighbouring state.92 The requirement of the actus reus is adhered to since the Yazidis are forcibly deported from territory where they were ‘lawfully present’. The second requirement is the mens rea aspect which entails that the intention of ISIS members was to forcibly displace the Yazidis across an international border.93 The fact that ISIS is not a State deporting (unlike Myanmar) makes no difference in the author’s view for the Court’s jurisdiction over the crime of deportation since as mentioned above, article 7 (2) (a) Rome Statute includes ‘organizational policy’.

Article 7 (d) of the Rome Statute states ‘Deportation or forcible transfer of population’ which are described as being separate crimes by the PTC I in the Myanmar/Bangladesh case.94 To be precise, the Chamber stated in paragraph 55 from its decision: “In more specific terms,

“deported” is linked to the destination of “another State”, while “forcibly transferred” is linked to the destination of “another […] location” (which specifically entails, a contrario, another location within the same State). This means that, provided that all other requirements are met, the displacement of persons lawfully residing in an area to another State amounts to deportation, whereas such displacement to a location within the borders of a State must be characterised as forcible transfer.”95 Both the element mens rea as actus reus need to be adhered to in order to establish that deportation under article 7 (d) Rome Statute has taken place. Otherwise ISIS members could probably not be prosecuted since no part of the crime would have taken place on the territory of a State Party. The PTC I concluded that acts of

89 Ibid 88.

90 “Interview: These Yezidi Girls Escaped ISIS. Now What?,” Human Rights Watch, accessed 8 June, 2021, https://www.hrw.org/news/2015/04/15/interview-these-yezidi-girls-escaped-isis-now-what.

91 “The Yazidi genocide,” American Foundation for relief and reconciliation in the Middle East, accessed 8 June, 2021, https://americanfrrme.org/the-yazidi-genocide/.

92 “The ICC and the Deportation of Civilians from Syria to Jordan,” Opinio Juris, accessed April 27, 2021, https://opiniojuris.org/2019/03/25/the-icc-and-the-deportation-of-civilians-from-syria-to-jordan/.

93 Prosecutor v Milomir Stakić [2006] ICTY Appeals Chamber IT-97-24-A, par 278. ; Article 30 Rome Statute.

94 ICC-RoC46(3)-01/18: para 53.

95 ICC-RoC46(3)-01/18: para 55.

(21)

21 deportation that commenced in a non-State party, by expulsion or coercive acts, and finished in a State Party to the Rome Statute, for instance people crossing the border to another State, fall within article 12 (2) (a) of the Statute.96

Since the PTC I stated that the Court has jurisdiction under article 12 (2) (a) Rome Statue “if at least one element of a crime within the jurisdiction of the Court or part of such a crime is committed on the territory of a State Party to the Statute”97 and the PTC III concluded that

“for the purpose of the Court’s exercise of jurisdiction under article 12(2)(a), “at least part of the conduct (i.e. the actus reus of the crime) must take place in the territory of a State Party,”98 it is reasonable to believe that the Court has jurisdiction over the deportation of the Yazidis since due to coercive acts, Yazidis were forced to flee to Jordan. The assumption of the PTC that ‘part of the conduct’ is the same as ‘the conduct in question’ in article 12 (2) (a) and that the consequence can be seen as an element of the crime99 is a broad interpretation of the article by the PTC but has been supported by Guernica 37 International Justice Chambers.100 However, the decision of the OTP not to start an investigation regarding the case of the Uyghurs needs to be taken into account. The OTP researched if the crimes which partially took place in Cambodia and Tajikistan, amounted to the act of deportation. The OTP

concluded however, that the transfer of Uyghurs from these countries to China did not amount to deportation under article 7 (1) (d) Rome Statute.101 According to the Report on Preliminary Examinations, this stems from the fact that the ICTY Trial Chamber in its Naletilić et al. case, determined that “the forced removal of Bosnian Muslim civilians from their homes and subsequent transfer to a detention centre did not constitute unlawful transfer as a crime under the ICTY Statute. The Trial Chamber found that “even though the persons, technically speaking, were moved from one place to another against their free will […] [t]hey were apprehended and arrested in order to be detained and not in order to be transferred.”102 The Uyghurs have been deported from Tajikistan and Cambodia to China and not the other way around. The OTP stated that the conduct did not fulfil the required elements of the crime of deportation under article 7 (1) (d). After having examined the situation of the Uyghurs, the

96 ICC-RoC46(3)-01/18: para 73.

97 ICC-RoC46(3)-01/18: para 72.

98 ICC-01/19-27 14-11-2019:para 61.

99 ICC-01/19-27 14-11-2019: para 50.

100 Amicus Curiae Observations by Guernica 37 International Justice Chambers (pursuant to Rule 103 of the Rules), on the ‘Prosecutions Request for a Ruling on Jurisdiction under Article 19(3) of the Statute’ ICC- RoC46(3)-01/18, Pre-Trial Chamber I, 18 June 2018, para 4.42.

101 Report on Preliminary Examinations 2020, International Criminal Court, Office of the Prosecutor: para 74.

102 Report on Preliminary Examinations 2020: para 76.

(22)

22 OTP decided not to start an investigation into the situation.103 Besides, the OTP did not want to include other crimes than deportation in the investigation, because the actus reus would not have taken place in a State Party104 while there is evidence that other crimes against humanity and probably genocide as well have been committed against the Uyghurs.105

The decision of the OTP could be a problem for the case of the deportation of the Yazidis in case the OTP applies the same reasoning. However, in the author’s view, the case of the Yazidis seems more similar to the case of the Rohingya since due to the coercive acts by ISIS, Yazidis were forced to flee their countries into Jordan, which could be seen as the crime of deportation,106 and were not taken from State Parties to a non-State Party but were deported the other way around. Perhaps, here lays the difference between the Yazidis and the Uyghurs and the crime of deportation under article 7 (1) (d). However, it remains uncertain if the OTP will compare the situation of the Yazidis equal to the situation of the Rohingya or to the situation of the Uyghurs.

2.2.1. The deportation of Yazidis from Syria and Iraq to Jordan as an opening for the ICC to exercise jurisdiction, by using the territoriality principle under article 12 (2) (a) of the Rome Statute

The atrocities committed by ISIS started in 2014 when it occupied Sinjar and used violence against the Yazidis.107 This included immediate murder of Yazidi men, separation of families and children, kidnapping of women and girls, sexual abuse and slavery, the attempt to wipe out the religious, ethnic minority which amounted to a genocide and forcing the Yazidi to flee their home countries which started with what became known as the famous tragedy of the Mount Sinjar in Iraq in 2014.108 After the occupation of the Mount Sinjar by ISIS, thousands of Yazidi who were not yet captured by ISIS fighters tried to escape to different areas within Iraq or into Syria, Jordan, Turkey or Lebanon.109

It is hard to find out how many Yazidis exactly have fled to Jordan from Syria and Iraq since many reports state Syrian or Iraqi refugees and this makes it difficult to find out if Yazidi are

103 Ibid 102.

104 Report on Preliminary Examinations 2020: para 73.

105 Thomas Fisher, “SEEKING INTERNATIONAL RELIEF FOR UYGHURS IN CHINA,” Washington University global studies law review 20, no. 1 (2021): 255.

106 ICC-01/19-27 14-11-2019: para 110.

107 “The Yazidi Genocide,” https://americanfrrme.org/the-yazidi-genocide/.

108 Ibid 107.

109 “After long trek to Armenia, Iraq’s Yazidi families struggle to fit in,” Reuters, accessed May 2, 2021, https://www.reuters.com/article/us-armenia-yazidis-idUSKBN17V0TN.

(23)

23 among those refugees or not.110 What is documented is the wave of Yazidi refugees into Syria after ISIS took control of territory in the Sinjar area and when it became clear that ISIS

wanted to do harm to the Yazidis.111 The fact that Yazidis had to leave their homes behind and flee to Syria is a terrible thing but unfortunately this does not grant territorial jurisdiction to the ICC since Syria is not a State Party.

However, it can be stated that Yazidis have been forced to flee into Jordan but exact data is still missing about how many Yazidi have fled and to which location in Jordan. The

International, Impartial and Independent Mechanism (IIIM) and the Investigative Team to Promote Accountability for Crimes Committed by Da’Esh/ ISIL (UNITAD) are trying to tackle this hurdle. The former is established by resolution 71/248 of the UN General

Assembly in 2016 and the latter came into being after the Security Council adopted resolution 2379 in 2017.112 Both institutes have the task to collect data and gather evidence about the atrocities committed by ISIS. UNITAD and IIIM collect and store evidence that is linked to war crimes, crimes against humanity and genocide committed by ISIS.113

If IIM and UNITAD find out the exact numbers of Yazidis who were deported to Jordan, it could lead to the conclusion that one element of the deportation took place on the territory of a State Party (Jordan) and that it hereby grants territorial jurisdiction under article 12 (2) (a) to the ICC over the crime of deportation as being a crime against humanity committed by ISIS members. However, it is important to determine if both the elements actus reus and mens rea were committed. Hence, ISIS members should have had the ‘intent’ for the Yazidis to leave Syria/Iraq which implies that the perpetrator means to cause that consequence or is aware that it will occur in the ordinary cause of events and ISIS as defined in article 30 (2) (b) and members must have acted with the knowledge that the crime has been committed as ‘part of a widespread or systematic attack directed against a civilian population’ which is a precondition as stated in article 7 (1) Rome Statute and which has been affirmed by PTC III.114

110 “UNHCR continues to support refugees in Jordan throughout 2019,” UNHCR The Refugee Agency, accessed May 6, 2021, https://www.unhcr.org/jo/12449-unhcr-continues-to-support-refugees-in-jordan-throughout- 2019.html.

111 “UNHCR steps us aid as Yazidis stream into Syria from Iraq’s Mount Sinjar,” UNHCR The UN Refugee Agency, accessed May 2, 2021, https://www.unhcr.org/news/latest/2014/8/53ecb7a29/unhcr-steps-aid-yazidis- stream-syria-iraqs-mount-sinjar.html.

112 “Mandate,” International, Impartial and Independent Mechanism, accessed May 3, 2021,

https://iiim.un.org/mandate/. ; “Mandate,” Investigative Team to Promote Accountability for Crimes Committed by Da’Esh/ISIL, accessed May 3, 2021, https://www.unitad.un.org/content/our-mandate.

113 Ibid 112.

114 ICC-01/19-27 14-11-2019: para 71.

(24)

24 The fact that many Rohingya were forced to flee to Bangladesh due to coercive acts, seems enough for PTC III to confirm that the crime against humanity of deportation has been committed.115 In the case of the Yazidis, if the evidence is correct, it can be stated that the Syrian/Iraqi case regarding deportation/forcible transfer is similar to its precedent, the Prosecutor’s request before the PTC regarding the Rohingya. The ICC can only exert jurisdiction “if at least part of the conduct (i.e. the actus reusof the crime) took place on the territory of a State Party.”116 Therefore, if the Yazidis were indeed forced to flee to Jordan due to coercive acts, part of the conduct of deportation took place in Jordan, a State Party to the Rome Statue, which grans territorial jurisdiction to the ICC under article 12 (2) (a).

An important concept to take into account when considering if the ICC can have jurisdiction over deportation and hence prosecute ISIS members is ‘justice’. If the Court indeed has the power to convict the ISIS members for deportation, the question arises if this would bring justice to the Yazidis. Deportation is a serious crime against humanity, but it does not include physical harm.117 Since other crimes against humanity and genocide have been committed against the Yazidis, it probably would bring more ‘justice’ to the Yazidis if the ISIS members were convicted for one of those crimes. In the next chapter, the possibilities of prosecution for genocide and other crimes against humanity will be discussed.

115 ICC-01/19-27 14-11-2019: para 108.

116 ICC-01/19-27 14-11-2019: para 61.

117 “Three Cautionary Thoughts on the OTP’s Rohingya Request,” Opinio Juris, accessed May 1, 2021, https://opiniojuris.org/2018/04/09/some-thoughts-on-the-otps-rohyingya-request/.

(25)

25 Chapter 3: Possibility of prosecuting ISIS members for other crimes against humanity and genocide, committed against the Yazidis, which took partially place in the territory of a State Party to the Rome Statute

This chapter deals with the issue if the Myanmar precedent does apply to Yazidi deportations into Jordan and if this precedent then can be stretched further to cover other crimes against humanity and genocide. If so, it is necessary to research what is required and if it applies in the case of the Yazidis.

The definition of deportation as a crime against humanity and its application have been explained in the previous chapter. This chapter focuses on other crimes against humanity, such as enslavement under article 7 ( c) Rome Statute and rape, sexual slavery, enforced prostitution under article 7 (g) Rome Statute in relation to the Yazidis, and especially the women. In addition, it is necessary to determine if these crimes against humanity under the Rome Statute would also fall within the jurisdiction of the ICC under article 12 (2) (a) as long as one element of this crime took place on the territory of a state party to the ICC Statute.

Besides, this chapter examines the genocide against the Yazidi and if ISIS members could possibly be prosecuted for this crime at the ICC.

The ICC is not limited to the crime of deportation in case of crimes that partially took place in a State-Party. In fact, the PTC I did confirm in the Myanmar case that it could as well

investigate the crimes against humanity of persecution and “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”118 Besides, the PTC I stated in paragraph 74 that “If it were established that at least an element of another crime within the jurisdiction of the Court or part of such a crime is committed on the territory of a State Party, the Court might assert jurisdiction pursuant to article 12(2)(a) of the Statute.”119 The PTC III held that the Court could have jurisdiction over

“any crime within the jurisdiction of the Court committed in part on the territory of a State Party…, if the alleged crime is sufficiently linked to the situation.”120

This could mean that the Court is in general qualified to investigate other crimes against humanity and genocide.

In 2016, the UN Special Commission published its Report of the Independent International Commission of Inquiry on the Syrian Arabic Republic and UNITAD published its sixth report

118 ICC-RoC46(3)-01/18: para 76.

119 ICC ICC-RoC46(3)-01/18: para 74.

120 ICC-01/19-27 14-11-2019: para 126.

Referenties

GERELATEERDE DOCUMENTEN

I will analyze how Trump supporters come to support these political ideas that ‘other’ Muslims, by looking at individuals’ identification process and the way they

List, supra note 45, at 1244-5, “the status of an occupant of the territory of the enemy having been achieved, international law places the responsibility upon

The Territorial Jurisdiction of the International Criminal Court: Certain Contested Issues..

Hieruit volgt voor dit onderzoek dat argumenten dienen te worden verworpen die pogen de reikwijdte van de interpretatie van artikel 12 door het Hof in te perken, bijvoorbeeld de

The subject of the present dissertation is the analysis of the territorial parameter of the jurisdiction of the International Criminal Court (hereinafter: the ICC) under article 12

168 Colle 2015, p.. 34 een vermindering moet plaats vinden naar evenredigheid van de verzekerde belangen. Hierbij is artikel 73 W.Verz. wel van toepassing. De verzekeraar mag

The final combined individual-farm multilevel model showed that the number of daily performed goat-related tasks (including milking, feeding, supply and removal of goats, general

Because the Converium settlement is aimed at a certain performance that will take place in the Netherlands, namely, payment of damages by the Dutch special compensation