ISIL and the ICC: Two Women’s Crusade Against the Islamic State

On September 16, 2016, international human rights lawyer and red carpet frequenter Amal Clooney delivered a damning speech in front of the United Nations Security Council. Following a string of high-profile clients such as Julian Assange and the former PM of Ukraine, Clooney chided the world’s largest intergovernmental organization for peace on behalf of her latest client, Nadia Murad, a former sex slave of the Islamic State (ISIL) and the unassuming voice of the Yazidi people. Clooney scolded the council, claiming she was “ashamed as a supporter of the United Nations that states are failing to prevent or even punish genocide because they find that their own interests get in the way.” She then turned to Murad, who had remained quiet throughout her lawyer’s passionate monologue, and apologized, “I am sorry we have failed you.”

This speech proved to be the first of many in Clooney and Murad’s ongoing campaign to hold ISIL accountable for their horrific crimes against humanity. Clooney’s work specifically highlights ISIL’s treatment of the Yazidis, a Kurdish religious minority that has been targeted more than any other local sect. The horrors the terrorist organization has inflicted on the Yazidis have included the kidnapping of over 6,000 of their women and children, some of which have been forced into sexual slavery, a practice which, according to ISIL’s propagandic handbooks, is in accordance with Sharia law. Murad and Clooney have focused much of their efforts on this particular crime due to Murad’s personal connection to it; she escaped this fate when her kidnappers accidentally left her cell doors open in November 2014. Since that first speech at the UN, the pair has traveled the world, championing their desire to bring justice to those affected by this monstrous practice by prosecuting ISIL in an international court of law. Murad has professed that her ultimate desire is to “one day we can look our abusers in the eye in a court in The Hague and tell the world what they have done to us.” However, while the issue is undoubtedly one of the most pressing human rights violations in the world today, it will be a long and bumpy road to Murad and Clooney’s final goal of prosecuting ISIL at the International Criminal Court (ICC) in The Hague. The unprecedented strategy of holding a non-state actor and terrorist group accountable for its crimes in a court of law raises many controversial questions regarding the level of jurisdiction and punitive power the court holds, and the ICC – in its already weakened condition, with limited authority over the international community – may not step up to the task. 

The first hurdle Clooney and Murad will have to jump is getting the case recommended to the ICC in the first place. There are three types of parties that can get a trial to the ICC: any state party to the Rome Statute, the UN Security Council, or the Office of the Prosecutor itself. However, so far none of these groups have made any effort to advocate for a case regarding any of ISIL’s members. In fact, in 2015 the chief prosecutor Fatou Bensouda stated that while she had received many calls for a formal investigation into the “crimes of unspeakable cruelty” committed by the Islamic State, the ICC had little jurisdictional power over the organization itself due to its problematic geographic location.

The unprecedented strategy of holding a terrorist, non-state actor accountable for their crimes in a court of law raises many controversial questions regarding the level of jurisdiction and punitive power the court holds, and the ICC – in its already weakened condition regarding its level of authority and effectiveness over the international community – may not step effectively up to the task.

The main measure blocking legal action comes from the fact that neither Iraq nor Syria (the two states in which ISIL holds the most authority and land) are party to the Rome Statute. This problem precludes a member state referring itself or a body within it to the ICC. It also seriously reduces the chance of a Security Council referral to the ICC because Russia, an ally of Iraq, would likely exercise its veto power as a permanent member to block its advancement. In response to these conditions, Murad and Clooney announced that they hope to sway the UN’s overall opinion in favor of a recommendation through the creation of an “ISIS Commission,” which would put forth “a proposal for the UN Security Council to send a team of investigators to Iraq to gather evidence that can later be used in international criminal court and by national prosecutors.” It has yet to be seen whether this commission will come to fruition.

However, even if the women found some way to get a case against ISIL for the Yazidi people to the ICC, the pitfalls of such a method would be far from over. Firstly, ICC trials take a tremendous amount of time; the convictions of those involved in the Second Congo War in the DRC took a record six years to be completed, and those involving Sudan and the Central African Republic each took five years. With ISIL committing crimes against humanity at record rates (both in terms of scale and expediency), this lengthy, arduous process would prove too slow to stop the many possible horrors from occurring in the next few years. Additionally, the international nature of ISIL with regards to its members and support network complicates the question of jurisdiction. According to Meher Vaswarmi, a journalist for OnMogul, “Since the group has also attracted recruitments from across the globe, their respective nations may diverge when it comes to deciding treatment of the perpetrators. Moreover, ISIL has an administrative hierarchy, making it difficult to pinpoint which members should be held culpable for acts planned by their superiors.”

Finally, the regime of international law is one that mainly acts retroactively, rather than proactively. Almost all of the cases heard by the ICC in the past dealt with crimes that had already been committed, and were concerned with bringing justice to those who were affected. This form of retribution is unique in this aspect and is unlike that employed by the United Nations, who possess an actual military peacekeeping force which can stop horrors through hard power on the ground. The ICC possess no such militia and instead relies heavily on either the aid from actual states or the normative power that rests in the universal acceptance of their rulings. Unfortunately, this acceptance is unlikely to be realized if violence is still occurring, as it is difficult to enforce punitive measures if they are only unilaterally accepted. And while this legal path is no doubt a necessary measure for the thousands of women like Nadia Murad who wish to see their abusers held accountable for their terrible crimes, it will do little to provide aid in the current battle that is waging on the ground and for the lives of those 3,000 or so still kidnapped.

Even if Clooney and Murad succeed at bringing the case to the ICC, the ICC itself has limited legal and material power to enforce its decisions in the areas that are claimed by ISIL forces.The ICC has admitted to having very little power over happenings within Syria and Iraq, as neither state was a signatory of the Rome Statute. Without any viable enforcement mechanism, this would mean any ICC rulings and sentencing against ISIL fighters would lack teeth. On a broader scale, the court has been criticized on multiple occasions for not doing enough to enforce its decisions. International lawyer Maryam Jamshidi corroborates this point: “Enforcement is critical to the ICC’s work; without it, the ICC’s decisions are worth little more than the paper on which they are written. Lacking an associated police force or other enforcement arm, the ICC primarily depends on […] its image as a trusted and reputable international institution […] [and its ability to] leverage the resources of member states to ensure its decisions are respected.” Unless the United Nations and Iraq send the case to the ICC and commit to following through on their rulings, the ICC’s ability to enforce any sort of disciplinary action – should it reach an agreement in the first place – is severely limited.

While all these factors provide roadblocks in Nadia Murad and Amal Clooney’s crusade for justice, there is still hope for their cause. The best chance they have of seeing their day in court rests on their willingness to prosecute ISIL in a special tribunal, in a similar function to the the genocides committed in Rwanda and Yugoslavia. Both Clooney and Murad have expressed their interest in this option, and while not as incendiary or provoking as taking the Islamic State to the “court of last resort,” this method would ensure a trial specifically tailored to the unique nature of the case. Through the use of a tribunal, the pair of women could circumvent the problem of Iraq’s immunity from the ICC and the limiting international aspect of the organization. And while they would still have to overcome Russia’s current unwillingness to go against the sovereignty of their ally Iraq (or undermine the power of Bashar Al-Assad in Syria), as the scope and horror of the crimes committed by ISIL continue to grow, the cries of Murad’s Yazidi people are becoming too loud to ignore.

 

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