International Criminal Court Mulls Methods of Holding Islamic State Accountable for War Crimes

By Lauretta Brown | February 12, 2016 | 10:28am EST

Rep. Jim McGovern (D-Mass.)  (AP)

( – Rep. Jim McGovern (D-Mass.) hosted a briefing on Capitol Hill on Wednesday to address how the International Criminal Court (ICC) could provide accountability for the atrocities being committed by ISIS in Iraq and Syria.

The panel discussion featured James Stewart, deputy prosecutor with the ICC who emphasized the importance of preserving evidence of war crimes, as well as ICC prosecutor Fatou Bensouda’s concern and surveillance of the situation despite her present inability to act in the region due to a lack of jurisdiction.

The International Criminal Court is a treaty-based international criminal court that began in 2002, enacted by the Rome Statute. The ICC is meant to prosecute the international crimes of genocide, crimes against humanity, and war crimes. There are 123 states party to the Rome Statute, who are ICC members.

Rep. McGovern discussed the importance of having the ICC address the ISIS conflict in Syria and Iraq which he said, “has been prosecuted with total disregard for human rights and international humanitarian law.”

Islamic State executes captives. 

(YouTube screenshot.) 

“The UN and many other credible observers have reported on ISIL’s brutal widespread attacks against Iraqi and Syrian civilians including torture, mass executions, sexual enslavement of women and girls and forced recruitment of children, as well as the destruction of cultural heritage.” McGovern said.

“Often these inhumane acts have been carried out systematically against ethnic religious minorities that have lived in the region for hundreds, even thousands of years,” he said.

McGovern added that “real accountability for grave crimes does serve as a deterrent but given the weakness of the rule of law in the region, the pursuit of accountability through local justice institutions seems highly unlikely to happen.”

ICC Deputy Prosecutor James Stewart said that ICC Prosecutor, Fatou Bensouda “has been deeply concerned about the reported atrocities committed by IS in Syria and Iraq.”

Stewart pointed out how narrow the ICC’s jurisdiction is over such matters since the ICC can only act “if a state party refers a situation to the prosecutor, if a non-state party accepts the ICC’s jurisdiction over a situation, or if the UN Security Council refers a situation to the prosecutor,” adding that, “neither Syria nor Iraq are state parties and neither has accepted ICC jurisdiction over the situation.”

 “The prosecutor has, however, because of what’s going on and what’s been reported, looked into whether the ICC has personal jurisdiction because nationals of state parties are allegedly committing war crimes, crimes against humanity, and even genocide,” Stewart continued.

Exterior of the International Criminal

Court (ICC).   (AP) 

He said that ICC policy is “to focus on those most responsible for the worst crimes.”

Stewart said that the ICC knows “that thousands of fighters, thousands of fighters from state’s parties to the Rome Statute have joined ISIS, fighters from Jordan, Libya, France, Belgium, the Netherlands, Australia, and other countries that are state’s parties to the Rome Statute.”

However “At this point it appears to us that the leadership of IS seems to be made up of individuals from Syria and Iraq, not state party nationals,” which Stewart said, has created “a constraint on the prosecutor’s ability to react.”

“Given our policy of focusing on those most responsible for the worst crimes, the basis for opening an investigation, even a preliminary examination of the matter of IS [Islamic State] crimes in Syria and Iraq is too narrow,” he concluded.

“However, the prosecutor remains open to receiving information and to continually receive information about the situation with respect to IS’s hierarchy,” Stewart said, adding that the ICC “are in touch with a number of state authorities and others with respect to what is happening in the region.”

“We are working with NGOs and other agencies to try to develop methods of preserving evidence that could be of use down the line,” Stewart added.

Panelist Jane Stromseth, former deputy to the ambassador-at-large for global criminal justice at the State Department and professor at Georgetown University School of Law, asked , “What realistic options exist today to try to seek accountability for these horrible crimes?”

Captives killed by drowning by

Islamic State executioners.

(YouTube screenshot.) 

“Domestic or national authorities have the primary responsibility to prevent and to seek justice for atrocity crimes,” Stromseth explained. “This principle of complementarity is recognized clearly in the Rome statute of the ICC.”

Stromseth said that in Iraq there are some domestic efforts that are underway to hold ISIS criminals accountable.

“One example in Northern Iraq is a case that is being brought against Umm Sayyaf who’s a widow of a leader of ISIL and is charged with holding a number of Yazidi women and girls in sexual enslavement,and also holding in enslavement the American citizen, Kayla Mueller, who was ultimately killed in ISIL custody,” she pointed out.

“The Justice Department just on Monday announced that they too are bringing a case in federal court against Umm Sayyaf and are also cooperating with the Iraqi authorities,” Stromseth said and added, “this is at least one example of a very severe atrocity that there is some domestic efforts both in Iraq and here to seek justice and accountability.”

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