Putting an ICC investigation on IS
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)
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