Anthony Moreland – At the height of the Syrian civil war in 2013, the small forsaken group, ISI, now known as ISIS, was able to cross the border from Iraq to Syria without attracting attention. There, they spread their message to other disaffected Sunnis. Their movement is believed to have been so effective because, after “the Ottoman collapse, Sunni Islam has lacked an internationally recognized clerical hierarchy.”
Sunni’s have expressed displeasure with their treatment by Shiite Muslims dating back to the Sunni – Shiite split. With the acceptance of their message in Syria, ISI gained the traction needed to begin recruiting new fighters, and stockpiling considerable amounts of money. After taking control of vast swaths of Iraq and Syria in 2014, ISIS declared themselves the new caliphate.
The United Nations Security Council reported that under the newly avowed “caliphate”, ISIS has been “waging a campaign to instill fear, including amputations, public execution-style killings and whippings.” Often children are present at these mass executions, with the bodies placed on crucifixes to serve as a warning to anyone who seeks to challenge their authority. Furthermore, they have taken hostages, beheaded foreign prisoners of war, and married off underage girls to fighters, and most recently set afire to a live Muslim prisoner. The United Nations considers the stratagems used by ISIS to be tantamount to crimes against humanity, and war crimes.
In armed conflicts, International Humanitarian Law (IHL) applies. The law employs a set of rules that “seek to limit the effects of armed conflict.” Additionally, the laws protect individuals “who are not or are no longer participating in hostilities while restricting the means and method of warfare.”
IHL is staunch in its position that its laws apply equally to those who commit acts of terrorism. While ISIS is not the sovereign government of Iraq or Syria, IHL appears to apply nevertheless.
Because ISIS is not a sovereign state, answering the question of how to hold them liable becomes essential. Typically the conventions have been interpreted as providing for mandatory universal jurisdiction. Therefore, Article 146 of the Geneva Conventions would be the ruling force of such misconduct. When a country or organization commits international war crimes, or crimes against humanity, the International Criminal Court (ICC), has jurisdiction. Enforcement is problematic however, when a country is not a member state of the ICC – as ICC jurisdiction is not universal. Currently, neither Syria nor Iraq are members of the ICC. Presupposing that the ICC has no other way to effectuate jurisdiction over ISIS, it may become necessary to convince both nations to cede to ICC governance.
Consequently, it may not be necessary for Iraq and Syria to become part of the ICC for ISIS to be held liable. In 1994, the United Nations Security Council established the International Criminal Tribunal for Rwanda absent Rwanda’s membership with the ICC. The ICTR was established to “prosecute persons responsible for genocide and other serious violations of international humanitarian law. . .” Since its inception, the ICTR has indicted 93 individuals on crimes of genocide and crimes against humanity.
Seeing as how the United Nations has stepped up to enforce Humanitarian Law and ICC jurisdiction with non-member states in the past, there’s no acceptable reason that it cannot be done with ISIS.