Putting an ICC investigation on IS

Like Fatou Bensouda speaking in Kampala
Monday, April 13, 2015 - 12:41

By Niklas Jakobsson

When an email from the International Criminal Court landed in my mailbox containing the names “Bensouda” and “ISIS”, I almost jumped out of my chair. The topic of ISIS and the ICC has been plastered over the news for months, with organisations, countries, experts and lawyers calling for the Court to take action.

But in walked the old ICC regular, anti-climax. ICC chief prosecutor Fatou Bensouda made a statement in which she condemned the heinous crimes of ISIS, discussed jurisdiction and eventually concluded that her office – at this point in time – will not be opening a preliminary examination.

Bensouda’s statement in itself was an odd one – it’s rare that statements are made regarding the non-opening of a preliminary examination. But the subtext of her statement seems to be quite clear.

Making it more explicit in a post for Justice in Conflict, Barrie Sander further discussed what Bensouda’s statement might actually be all about.

“Although unprecedented in form, the statement marks the latest in a series of pronouncements by Bensouda that have demonstrated her willingness to use the symbolic power of her office to distribute responsibility and, at times, stigma to States and the Security Council for political limits that have impeded the work of the ICC.”.

Whether Bensouda’s statement was a use of symbolic power, the issue of why the Office of the Prosecutor will not open a preliminary examination was also widely discussed.

So one might say that Bensouda threw down the gauntlet and made it clear that the UN Security Council needs to take action and refer the situation to the ICC. But what is the likelihood of that happening? In an article for Slate, Joshua Keating took a look at the odds of a referral being pushed through the UNSC.

But such a referral will be tricky. For one thing, it requires the support of the permanent council members, including Russia and China, who, while not fans of ISIS, are also not fans of violating national sovereignty in the name of human rights. (Except when they are.)

Kevin Jon Heller, quoted in the same piece, believes a UNSC referral is something that shouldn’t happen.

 “The Security Council can’t just say that the Court has jurisdiction over crimes by ISIS and nobody else. The Rome Statute is designed to prevent one-sided referrals.” 

While the OTP has made it clear where it stands on the crimes of ISIS, it doesn’t bring anyone closer to an end to the atrocities. Future preliminary examinations, a UNSC referral or national proceedings will only be possible when the crimes themselves are stopped.


  • What effect will Bensouda’s statement have on prosecuting ISIS crimes?
  • Will the UNSC ever refer the situation to the ICC?
  • To what extent should national legal systems take the lead in prosecuting these crimes?

Lead image: Fatou Bensouda speaking in Kampala (Photo: Isaac Kasamni/AFP)

The Weekly Hubble features the most popular or controversial international justice story of the past week and reactions on social media to the news. 

Niklas Jakobsson
Niklas Jakobsson

I'll gladly engage in the discussion and appreciate all points-of-view. These are two very clear statements that I've made in comments one and two relating to you saying I'm making a 'legally unfounded' statement: "I am speculating and providing my own opinion" "This is not something I'm trying to pawn off as "definite legal statement"". Again, I've also made it clear that I'm not attempting to justify this from a legal and academic standpoint. So in that sense your criticism is not criticism, rather an observation of what I'm doing. And nowhere in my comments, nor in the article, have I claimed to make legal statements. So again, I'm not attempting to justify the statement from a legal or academic point of view (because I personally believe that the ICC cannot be viewed only through that lense), rather attempting to discuss the broader issues that the ICC faces (in my opinion).

Wednesday, April 15, 2015 - 12:39

Thank you for trying to engage in the discussion. However, you are complicating it, and not addressing the substance. Once again, this is the core issue of the argument! Your 'legally unfounded' statement "a UNSC referral or national proceedings will only be possible when the crimes themselves are stopped." You have failed legally and academically to defend it, and you have created your 'own' rules of procedure. My point is, that such groundless statements help to creat fallacies amongst unqualified readers.

Wednesday, April 15, 2015 - 11:30
Niklas Jakobsson
Niklas Jakobsson

I would say that I'm not vague - rather you're drawing conclussions from my writing which are not there, neither explicitly nor implicitly. Unlike the "pertinent legal literature produced by prominent international criminal law professors" I aruge that the ICC has not had a deterrent effect on non-state actors based on empirical research (This is, again, adressing your first clear substantial issue). This is not something I'm trying to pawn off as "definite legal statement", instead it's an observation based on, again, empirical research. On your second point, and on the criticism of involving politics and international relations, I argue that there is a need for a cross-disciplinary approach to international justice because that is how the world works. The ICC does not function in a normative bubble free from pressure, politics or international relations. I do believe that the perception that this is the case amongst legal researchers is one of the reasons why people believe that the ICC has much more power, responsibility and pull than it actually does. So to move your side of the discussion away from a strict legal perspective, I ask you the following questions: - Can you give several concrete examples of when the ICC has had a deterrent effect on non-state actors? (adressing your first substantial issue) - Can you give any examples of the ICC having had a deterring effect in any situation relating to ISIS? - Do you believe the UNSC will refer the situation to the ICC, or the ICC will open a P.E anytime soon, and if yes, on what grounds do you base that argument? (addressing your second substantial issue) Lastly, I have never claimed that any of my comments or thoughts are legal statements in any way, shape or form.

Tuesday, April 14, 2015 - 22:23

Still utterly vague and unclear. You have not addressed the substantial issues I placed in a very clear-cut structure. However, my advice to you is to consult and analyze the pertinent legal literature produced by prominent international criminal law professors concerning the deterrent role of the ICC; which is considered an ultimate objective. Journalists ought to seperate politics and international relations when they try to make 'definite legal statements' the Rome Statute is absolutely clear about the ICC procedural law. Thus, no need to jump into assumptions and make 'unfounded legal statements' which might lead unqualified readers to espouse common fallacies.

Tuesday, April 14, 2015 - 21:06
Niklas Jakobsson
Niklas Jakobsson

I think you mistake my take on what is likely to happen with what I think the ICC should be doing/be able to do (the former being what I have been discussing). I have not spoken about the ICC's ability or inability to handle anything in any way. I am sure that they ICC is more than capable of handeling an investigation. What I am talking about is that they will, most likely, not be given a chance/the support by the UNSC and the international community to do so at this stage (and if they get that support I think that will only come after the conflict has been resolved). Furthermore, I don't see the ICC having any deterrent effect on ISIS for any reason. This is all terrible, unfortunate and, like I said, disgraceful. But unfortunately that doesn't give the ICC jurisdiction, pushes forward a UNSC resolution or ends the heinous crimes being committed by ISIS. So: The ICC can handle this type of situation. The ICC is a useful institution. But unfortunately it's not able to do anything, not to its own fault, at this stage.

Tuesday, April 14, 2015 - 20:39

So what you are telling in the end is that the ICC can only handle after a massacre like in Syria and Irak is over, and all people are murdered.This is really an eye opener to the world. The best thing to do now is to end the ICC as quick as possible, because it is completely useless. I think that the ICC is not amused by your point of view. So , in answer to your question , it is completely useless to open an investigation against IS because they are still busy with killing and fighting, if they are finished in the future we than we can try to open a case against them.

Tuesday, April 14, 2015 - 20:25
Niklas Jakobsson
Niklas Jakobsson

I think it's premature to speak of the ICC having a (successful) deterrent role. The single empirical study (not yet published) on the topic only finds evidence to support that governments kill slightly less people from pre to post ratifying the Rome Statute. However, it has had no effect on deterring non-state actors. If you wish to have a more concrete example I refer you to the Central African Republic.

What is meant by the quote you highlighted is that I am speculating and providing my own opinion. I don't see any realistic situation where China or Russia would allow a UNSC referral relating to Syria, or the US on Iraq, during the ongoing attrocities. That by itself is disgraceful and terrible, but I find that to be a legitimate observation. There is no need for legal sources in this sense as that is all related to international relations and politics in my view. The only, slight, possibility I see of a UNSC referral is if the armed conflict comes to an end.

Why do I think that? China and Russia vetoing Syrian ICC referral in 2014. US interest in Iraq would mean that a referral would open them up to possible investigations. US less than positive stance to ICC.

Tuesday, April 14, 2015 - 19:38

What about the deterrent role the ICC plays? The whole ICC rationale is based on a fundamental philosophical and legal deterrence in order to put an end to the impunity related to the universal core crimes.

What is meant by "a UNSC referral or national proceedings will only be possible when the crimes themselves are stopped." What are your legal sources to substantiate such fancy statement? Or is Justice Hub creating its own international criminal law procedures?

Tuesday, April 14, 2015 - 19:18