Much ink has been spilt on the prospect of bringing the leadership of the Islamic State to trial before the chambers of the International Criminal Court [hereinafter “ICC”]. However, the issue of jurisdiction over Islamic State militants poses considerable challenges to those who advocate such an outcome, since neither Iraq nor Syria are parties to the Rome Statute. So far, two prosecutorial strategies have been proposed to establish the ICC’s jurisdiction over members of the Islamic State:
(1) The first seeks to employ Art. 12(2)(b) of the Rome Statute, which allows the Court to try persons if their State of nationality is party to the Rome Statute. This form of personal jurisdiction initially seems promising, since a large portion of the Islamic State’s troops come from States-parties such as Tunisia and Jordan. However, it could not be used against the highest rungs of the Islamic State’s leadership, who are predominantly Iraqi or Syrian. This would undermine the international criminal justice system’s goal to prosecute “those most responsible” for the commission of atrocities.
(2) The second strategy—which is supported by ICC’s Prosecutor Fatou Bensouda—is for the U.N. Security Council to refer the situation in Iraq and Syria to the ICC, in accordance with Art. 13(b) of the Rome Statute. However, political obstacles make this solution unlikely. Art. 13(b) only allows the Security Council to refer situations to the ICC, instead of cases or individuals. Consequently, such a referral would grant the ICC jurisdiction not only over the Islamic State’s crimes, but also the atrocities committed by the Assad regime, such as the intentional bombing of civilians in Aleppo. This is not a prospect that Russia or China will welcome, and both are likely to continue using their veto powers to protect their ally from prosecution.
Thus, both approaches to establish ICC jurisdiction over the Islamic State prove to be unsatisfactory. There is however a third approach, which may avoid the obstacles impeding the other approaches—the objective territorial principle. According to this principle, a crime is deemed to have occurred within the State where its consequences take place, thereby granting it jurisdiction to try the crime. Art. 12(2)(a) of the Rome Statute permits the ICC to try crimes that occur within the territory of a State-party. If the objective territorial principle is read into this provision, it would imply that the ICC is competent to try crimes whose consequences occur within the territory of a State-party, even when the criminal conduct occurred abroad. This could play a crucial role in prosecuting the Islamic State’s leadership.
On July 23, 2016, the Islamic State claimed responsibility for a bombing that killed 80 individuals and injured another 230, in Kabul, Afghanistan. A few months earlier, on November 13, 2015, it also acknowledged responsibility for the attack in Paris, France which killed at least 130 people and wounded more than 350. The two attacks in Sousse and Tunis, Tunisia, which killed scores of people, were also attributed to the Islamic State. Afghanistan, France and Tunisia are all parties to the Rome Statute. These attacks, which took place within their territory, are part of the Islamic State’s ongoing widespread and systematic attack against the non-Sunni civilian population of the world, as per their proclaimed Jihadi-Salafism ideology. In these circumstances, if the objective territorial principle is applied, the leadership of the Islamic State could be tried for ordering, facilitating or contributing to murder, a crime against humanity, under Art. 7(1)(a) read with Arts. 25(3)(b), (c) & (d) of the Rome Statute. Although Islamic State leaders may have directed these attacks from Iraq or Syria, the consequences were borne by States-parties.
This approach to prosecuting the Islamic State has not received much consideration so far because of Art.12’s problematic phrasing. This provision states that the ICC has jurisdiction to try a crime if “[t]he State on the territory of which the conduct in question occurred [emphasis added]” is party to the Rome Statute. Under the Rome Statute’s framework, a crime is composed of three separate elements—conduct, consequences, and circumstances. Since Art. 12 explicitly uses the word conduct instead of crime, it could be interpreted as excluding the ICC from exercising jurisdiction when only the consequences of a crime occur within the territory of a State party. However, there are several reasons why this interpretation is incorrect.
As Dr. Michael Vagias has pointed out, the Rome Statute uses the term “conduct” in two distinct senses. The first is as a mere component of a crime, in the manner specified above. Such usage is found in Art. 30. The second is to denote the entire set of facts concerning a crime, including its consequences, and can be found in Arts. 20(1) & 20(3). Art.12 uses “conduct” in the latter sense. This is because Art. 12 and Arts. 20(1) & 20(3), were drafted together in Part II of the Statute, whereas Part III, which contains Art. 30, was drafted separately. The Appeals Chamber, in the Congo case, ruled that any provision of the Statute must be interpreted in light of the section within which it was drafted. Moreover, in the Katanga Confirmation decision, the Court affirmed that such statutory interpretation should exclude unrelated provisions, whose “application would engender an asystematic corpus juris.” Hence, the term ‘conduct’ in Art. 12(2)(a) must be interpreted consistently with Arts. 20(1) & 20(3), as synonymous with ‘crime’, and thereby including the consequences of such crime.
This interpretation is supported by the deliberations of the Assembly of States Parties’ Working Group on the Crime of Aggression, where:
“[b]road support was expressed for the view that concurrent jurisdiction arises where the perpetrator acts in one State and the consequences are felt in another…[w]hile some delegations expressed the possible need for clarifying language, possibly in the elements of crime, several stated that the Rome Statute was sufficiently clear and that ‘over-legislating’ should be avoided. The reference to ‘conduct’ in article 12 encompassed also the consequences of the conduct. The decision of the Permanent Court of International Justice in the Lotus case supported this reasoning [emphasis added].”
This interpretation is also supported by ICC’s decisions, since the Court has used the term “conduct” in Art. 12 interchangeably with the word “crime” in Mathieu Ngudjolo Chui and the investigation authorizations in Kenya and Cote d’Ivoire. Moreover, any other construction of Art. 12 would lead to absurd results. This is because the provision states that the Court has jurisdiction if “[t]he State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft [emphasis added]” is party to the Rome Statute. Thus, while Art. 12 uses the word “conduct” in relation to the territory of a State-party, it uses the word “crime” for the purposes of jurisdiction over vessels or aircrafts of such a party. If these two terms are not read synonymously, it implies that when criminal conduct occurs outside the territory of a State-party, the Court has jurisdiction if the consequences were felt onboard the vessel of a State-party, but not if they occur within its territory. As observed by the Office of the Prosecutor in the Report on the Situation in the Republic of Korea, such a reading would, for no clear reason, “create an artificial distinction when the acts are one and the same.”
Finally, the use of the objective territorial principle is not entirely unprecedented in ICC jurisprudence. In 2010, the Court issued an arrest warrant in the Mbarushimana case for the accused’s role in planning and implementing an international campaign to conceal the role of the Democratic Forces for the Liberation of Rwanda (FDLR) in war crimes committed in the Democratic Republic of Congo (DRC). The court considered these grounds sufficient to establish jurisdiction over him, because the campaign provided “motivation … and encouragement to the FDLR troops on the ground.” Crucially, the relevant criminal conduct—campaign orchestration—was carried out by Mbarushimana while he lived in Paris, France. At the time, France had made a declaration under Art. 124 of the Rome Statute, excluding the Court’s jurisdiction over war crimes committed on its territory, or by its nationals, for a period of seven years. Thus, the only basis on which the Court could issue this warrant was the objective territorial principle, because the consequences of Mbarushimana’s conduct were felt within the territory of a State-party, the DRC.
The Mbarushimana case, and its implicit adoption of the objective territorial principle, serves as a foundation which the ICC can use to establish jurisdiction over the Islamic State. Much like Mbarushimana, the leaders of the Islamic State orchestrate attacks from the territory of non-States-parties. However, the consequences of their criminal conduct fall within the Court’s territorial jurisdiction. The objective territorial principle allows the Office of the Prosecutor to directly target the Islamic State’s leadership, overcoming the drawbacks of founding jurisdiction based on the accused’s nationality. Moreover, this approach avoids the political hurdles of an Art. 13 referral from the U.N. Security Council, as the decisions to investigate and prosecute will be made solely by the Office of the Prosecutor, using its proprio motu powers. Adopting the objective territorial principle, therefore, may be the only sensible approach to holding the leadership of the Islamic State accountable for their actions before the International Criminal Court.
Vanshaj Jain is a fifth year law student at the National Law School of India University, Bangalore. He has been a member of the National Law School’s Jessup International Law Moot Court Team and is particularly interested in international criminal law.