Islamic State leader Abu Bakr al-Baghdadi delivering a sermon at a mosque in Iraq in July. AP file photo.
ERBIL, Kurdistan Region – The United Nations, European Union and other global organizations are urging Iraq to join the International Criminal Court (ICC) so leaders of the Islamic State, or ISIS, can be prosecuted for crimes, rights abuse and murders.
Without joining the ICC, the organizations are concerned that ISIS leaders such as Abu Bakr al Baghdadi will never face international justice at The Hague, Netherlands.
“Without Iraq joining the ICC, Baghdadi cannot be tried there, as he is an Iraqi national,” said Balkees Jarrah, expert in international justice at Human Rights Watch.
The ICC tries perpetrators of war crimes and crimes against humanity, for example the major players in the conflicts in Rwanda and the former Yugoslavia.
Because both Syria and Iraq did not sign the Rome Statute, which is the foundation of the ICC, the court has no jurisdiction to handle the crimes ISIS committed in these countries.
“That is needed for the persecutor to be able to examine potential abuses there,” said Jarrah.
Neither countries seem eager to join the ICC, because as Jarrah put it: “It would be looking at crimes committed by all sides, not only by ISIS, but also the Syrian regime and other actors.”
That means even the Syrian president could be charged by the court. China and Russia last year blocked a resolution in the UN Security Council to refer the situation in Syria to the ICC. By doing so, they blocked the only possibility to involve the court in matters that concern countries that are not a member.
Yet as that veto only covered Syria, the Security Council could still be asked to refer the crimes in Iraq to The Hague.
Such a measure is what the Kurdistan Regional Government (KRG) is actively lobbying for. KRG officials are convinced the ISIS crimes against the Yezidi minority amount to genocide and a special Kurdish commission is already collecting and documenting the evidence needed to prove it.
“Anyone can forward information to the court’s persecutor, regardless of whether she has a mandate or not,” said Jarrah. This means the special Kurdish High Commission for the Identification of Genocide Crimes can forward its findings to the ICC.
The same goes for the UN Human Rights Council in Geneva, which recently mandated a fact finding mission to examine the crimes committed in Iraq. In its report, the rights council called on the UN Security Council to give the ICC jurisdiction for these crimes, Jarrah said.
Even if Iraq joins the ICC, that does not guarantee the ISIS-leaders end up there. Because if national courts can persecute and try the perpetrators, the ICC does not even want to get involved.
“The ICC is a court of last resort and should only step in when national authorities are unable or unwilling to conduct the persecutions,” said Jarrah.
The fact the Iraqi government recently announced it would set up a special court to persecute ISIS crimes, could also block the Kurds who wish to get ISIS leaders tried at the ICC for genocide.
Former Iraqi president Saddam Hussein demanded to be tried by the ICC but was not because the new Iraqi government decided to set up a special court to do so itself. Yet this trial, ending with his execution in December 2006, was seen by many as not impartial or fair. This might convince the ICC that it now needs to play a role in the ISIS case.
An argument the KRG might use is presenting ISIS as a direct result of the sectarian policies of Baghdad towards the Sunni minority, and that this political situation cannot guarantee a fair trial against ISIS leaders.
Although Baghdadi escapes international prosecution for the moment, dozens of ISIS fighters and leaders are being tried by courts in their own countries after they return from Syria.
“Many of the fighters are dual nationals, and their countries can carry out investigations and persecutions for their crimes,” said Jarrah, pointing out they are mainly charged with membership in a terrorist organisation and, in some cases, tried for war crimes.
Some foreign ISIS fighters have even been charged in absentia while still serving with ISIS.
Such cases have been reported in most European countries, but Germany, which has over 700 nationals inside ISIS, is known to be the most active in prosecuting returnees from Syria.
While it is closed for Iraqis and Syrians, for those Europeans who played a major role in ISIS the door to the ICC is open, Jarrah said.
“The ICC would have jurisdiction over nationals of countries that are member of the court. If the fighter is British or German, the court has jurisdiction,” Jarrah said.
“[The ICC] would have to consider if the crimes are grave enough to merit the attention of the court, and also look if these individuals are the most responsible, and not just the foot soldiers.”