2 years ago, in August 2014, ISIS massacred thousands of Yazidis in Sinjar, Iraq. Just recently Amal Clooney drew the UN General Assembly’s attention to this tragic anniversary. In just one day thousands were killed or abducted; tens of thousands were forced to flee. Reportedly, more than 3,200 Yazidi women and children have been held in captivity since. This statistic is yet another reminder that two years after ISIS unleashed its genocidal campaign against Christians, Yazidis, and other religious minorities, the terrorist group has not been stopped and continues to commit atrocities in the Middle East and beyond.
While military and humanitarian actions have been deployed and are ongoing, the question of impunity remains. As time goes by, it becomes worryingly clear that neither the UN Security Council nor the International Criminal Court seem to be willing to take necessary steps and bring the perpetrators of genocide to justice. This is not a minor issue. The victims of genocide deserve for their plight to be taken seriously and their torturers prosecuted. No one should be allowed to return to their ‘normal’ lives after attempting to extinguish an entire culture.
Neither the UN Security Council nor the International Criminal Court seem to be willing to bring the perpetrators of genocide to justice
Since 2014 the situation has worsened dramatically. Despite recent set-backs, ISIS has established its so-called caliphate in many regions of Syria and Iraq. The death toll and the humanitarian crisis have reached unprecedented levels. In response, the UK, the US, the Russian Federation, and others have deployed military intervention.
Given the current realities of the situation in Syria and Iraq, the international community should renew its efforts to have the UN Security Council refer the situation in Syria and Iraq to the International Criminal Court or establish an ad-hoc criminal tribunal with ISIS and its affiliates being the exclusive target. When France tried to table a resolution concerning Syria in 2014, it failed to pass. An intervention solely aimed at ISIS as a non-state actor could be more successful.
But why must the UN Security Council play such a leading role? The Rome Statute suggests that the Prosecutor of the International Criminal Court could actually initiate investigations into the genocidal acts in the Middle East without a referral from the Security Council. On 8 April 2015, however, the Prosecutor concluded that the jurisdictional basis for opening an examination were too ‘narrow’. The Prosecutor should re-evaluate this stance and take into consideration further information about crimes committed by foreign fighters in the Middle East. The UN Special Rapporteur on Minority Issues has recently urged the Prosecutor to reinitiate preliminary examinations of crimes committed by foreign fighters in Iraq.
Despite these options, the surest method we currently have for bringing justice to the victims of Genocide in the Middle East is a resolution from the UN Security Council, targeting ISIS exclusively. Unfortunately, the Security Council Report’s July 2016 update on the situation in Iraq indicated that some Council members feel that ‘such a selective approach’ could set a ‘highly problematic’ precedent. The update did not, however, specify what exactly was so ‘highly problematic’ about condemning ISIS atrocities as genocide.
The concerns expressed by some Council members probably refer to the ever-present intention to address the situation in the Middle East in general, but without distinguishing between State and non-State actors. Exclusively targeting ISIS could shift the focus from other wrongdoers, and thus ignore, for example, the atrocities committed by the Syrian government during the Syrian Civil War.
While such a comprehensive approach appears sensible, it also means stagnation. Between 2011 and 2014 the UN Security Council considered the situation in Syria in at least four draft resolutions. All four resolutions were focused on the atrocities committed during the Syrian Civil War, including those committed by the Assad regime. All four draft resolutions were vetoed. While the failure to adopt these draft resolutions may appear to be simple political maneuvering, some background may shed light on the gravity of this failure.
In the four months between the first draft resolution and the second, the approximate death toll of the Syrian Civil War rose from 3,000 to 7,500. Five months later when the third draft resolution was rejected, the death toll of the Syrian Civil War stood at 13,000. When Russia and China vetoed the fourth resolution it was estimated that at least 150,000 people had been killed during the Syrian Civil War. Despite the fact that between 2012 and 2014 the death toll increased tenfold, the political stalemate continues. Today, the death toll has reached 470,000 in Syria alone. This number comprises the atrocities of all parties involved in the ongoing Syrian Civil War, Assad’s regime, ISIS, and others.
While the above examples do not refer to the ISIS atrocities exclusively, Syria provides a stark example of how turning a blind eye to atrocities allows genocide to occur. In fact, ISIS thrived on the back of the ongoing Syrian Civil War. This demonstrates that any attempt to include Syria in the next resolution is likely to fail.
Perhaps what is needed is the creation of a new mechanism to investigate and prosecute non-State actors like ISIS. ISIS is an influential international terrorist group: from Belgium to France, from Iraq to Syria, from Libya to Egypt. It is one of the most severe threats to international peace and security in the 21st century—a threat that requires action by the UN Security Council.
ISIS is not the only non-State actor that could be prosecuted by such a mechanism. The new mechanism could be used to investigate and prosecute all non-State actors perpetrating genocide, crimes against humanity, and war crimes. Such a mechanism may be the much-needed response to increasing international terrorism.
Recent years have witnessed the emergence of powerful terrorist groups, notably ISIS in the Middle East, and Boko Haram in West Africa. Despite various steps taken to combat them, these terrorist groups continue unabated by any effective deterrence or punishment.
In the absence of a referral of ISIS to the International Criminal Court, the creation of an international criminal tribunal for international terrorism may be this solution. The tribunal could be established as a subsidiary body to the UN Security Council and have a mandate to respond to atrocities committed by terrorist networks. The statute establishing the tribunal could define international terrorism and the crimes falling within its jurisdiction.
Such a tribunal could address jurisdictional deficiencies that currently allow terrorist organisations like ISIS to be shielded by outdated legal definitions and to elude accountability for genocide, crimes against humanity, and war crimes.
*Ewelina Ochab is an international expert on the issue of genocide and legal counsel for ADF International based in Vienna. Her book on this issue is called “Never Again” and available online.