Difficulties in Prosecuting Islamic State Members Under International Law

Since its emergence in 2013, The Islamic State has used increasingly violent tactics in an attempt to establish a worldwide caliphate.[i] The Islamic State is accused of committing crimes of unspeakable cruelty including mass executions, sexual slavery, rape and other forms of sexual and gender-based violence, torture, mutilation, enlistment and forced recruitment of children, and the persecution of ethnic and religious minorities.[ii] On March 13th, 2015, the Office of the United Nations High Commissioner for Human Rights published a damning report depicting purported abuses committed by members of the Islamic State including crimes against humanity, war crimes against the civilian population, and genocide.[iii] Amnesty International reports that the Islamic State has carried out ethnic and religious cleansing “on a historic scale”, systematically targeting non-Arab and non-Sunni Muslim communities, killing or abducting thousands, and displacing hundreds of thousands.[iv] On March 14th, 2016, Secretary of State John Kerry announced that the United States government determined the crimes committed by the Islamic State against Yazidis, Christians, and Shiite Muslims in Iraq and Syria amounted to genocide.[v]

Although the decision to classify the Islamic State’s actions as genocide is significant, it will be difficult for the international community to prosecute the leaders, especially while the conflict is on-going. While it may be possible to indict members of the Islamic State, because the conflict is on-going and because so many members of the organization reside in territories controlled by the Islamic State, prosecution is severely frustrated due to an inability to locate or capture leaders. If a leader is captured, the international community has three options in prosecuting Islamic State members for international crimes including: prosecuting criminals in the domestic State courts, before and ad hoc tribunal, or before the International Criminal Court.[vi]

States whose citizens who are members of the Islamic State have the option to investigate their own citizens to determine if they are responsible for committing crimes that amount to genocide. Under this option States may prosecute their own citizens for assisting terrorist efforts or committing terrorist acts. Currently it is unlikely that a majority of members of the Islamic State who are citizens of Iraq or Syria will be prosecuted because of the on-going conflict. Many members reside in areas under complete control of the Islamic State, making even basic judicial functions, such as execution of warrants, impossible. Because high-ranking officials of the Islamic State are often in hiding, their capture and prosecution is highly unlikely. In addition, some States have long-arm statutes which allow them to prosecute alien terrorists who have engaged in or provided support for a foreign terrorist organization.[vii] The United States, France, and Germany are all able to prosecute members of the Islamic State under their own domestic laws if they are captured.[viii]

The United Nations Security Council can establish an ad hoc tribunal to prosecute Islamic State members. The Security Council has created two tribunals in the past, the first to prosecute criminal violations during the genocide in Rwanda and the second to prosecute criminal violations in Yugoslavia.[ix] Because both Iraq and Syria are members of the United Nations, both States would be required to cooperate and abide by the decision of the tribunal.[x]

There have been increasing calls for the International Criminal Court (ICC) to prosecute Islamic State leaders.[xi] The ICC prosecutor, Fatou Bensouda, addressed the issue and stated while the Islamic State has committed atrocious crimes, her jurisdiction is too narrow launch a prosecution.[xii] Article Thirteen of the Rome Statute, permits the International Criminal Court (ICC) to exercise jurisdiction where:

(1) A State Party refers the situation to the Court pursuant to Article 14;

(2) The UN Security Council refers the situation to the Court under Chapter VII of the UN Charter; or

(3) The Prosecutor opens an invest1igation proprio motu under Article 15 on the basis of information on crimes within the jurisdiction of the Court.[xiii]

Because Iraq and Syria are not parties to the Rome Statute, the ICC can only exercise jurisdiction over its nationals if the Security Council refers the situation to it. [xiv] Because there are members of the Islamic States who are citizens of States which are party to the Rome Statute, it would be possible for the ICC to prosecute those members.[xv] The ICC has reviewed the nationalities of the highest ranking officials and as determined that they are primarily citizens of Iraq and Syria, therefore the ICC has not chosen to prosecute those mid-level members as it conflicts with the Prosecutor’s policy to indict those high-ranking leaders who are most culpable.[xvi] The Security Council does have the ability to refer the situation to the ICC, although this option is hindered by the requirement that the referral be unanimous among permanent members of the Security Council. The United States may be wary of permitting and ICC investigation which would scrutinize its own military operation in the area. [xvii]

While options exist for the international community in prosecuting Islamic State leaders, the possibilities are severely limited by an inability to locate and capture Islamic State members. Until the situations in Iraq and Syria have stabilized and the militant branch of the Islamic State is defeated, it is highly unlikely that the international community will be able to prosecute the majority of Islamic State leaders. If the Islamic State folds into the legitimate governments of Iraq or Syria, it is unlikely that the international community will be able to force either State to prosecute it’s own citizens, or to comply with international prosecution.

 

 

 

[i] Tim Lister, What does ISIS rally want?, CNN (Dec. 11th 2015), http://www.cnn.com/2015/12/11/middleeast/isis-syria-iraq-caliphate.

[ii] Fatou Bensouda, Statement, on the Alleged Crimes Committed by ISIS, International Criminal Court, (Apr. 8, 2015), http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/otp-stat-08-04-2015-1.aspx.

[iii] Anna Brennan, Prosecuting ISIL before the International Criminal Court: Challenged and Obstacles, 19 Amer. Soc. Int. L. 21, (Sept. 17 2015), https://www.asil.org/insights/volume/19/issue/21/prosecuting-isil-international-criminal-court-challenges-and-obstacles#_edn7. (citing UN Human Rights Council, Report of the Office of the United Nations High Commissioner for Human Rights on the Human Rights Situation in Iraq in the Light of Abuses Committed by the So-Called Islamic State in Iraq and the Levant and Associated Groups, U.N. Doc. A/HRC/28/18, at 5–14 (Mar. 13, 2015)).

[iv] Ethnic Cleansing on a Historic Scale: Islamic State’s Systematic Targeting of Minorities in Northing Iraq, Amnesty International, (2014), file:///C:/Users/Sarah/Downloads/mde140112014en.pdf.

[v] Eric Banco, US Says ISIS Crimes Amount to Genocide, But Prosecution Is Difficult, Internal Business Times. (Mar. 17 2016)  http://www.ibtimes.com/us-says-isis-crimes-amount-genocide-prosecution-difficult-2338504

[vi] Id.

[vii] 18 U.S.C. § 2339A, !8 U.S.C. § 2339B.

[viii] Joshua Keating, Why It’s So Hard to Prosecute ISIS for War Crimes, Slate, (Apr. 8 2015), http://www.slate.com/blogs/the_slatest/2015/04/08/isis_and_the_icc_why_it_s_will_be_tough_to_prosecute_the_islamic_state_for.html

[ix] Eric Banco, US Says ISIS Crimes Amount to Genocide, But Prosecution Is Difficult, Internal Business Times. (Mar. 17 2016)  http://www.ibtimes.com/us-says-isis-crimes-amount-genocide-prosecution-difficult-2338504

[x] Id.

[xi] Joshua Keating, Why It’s So Hard to Prosecute ISIS for War Crimes, Slate, (Apr. 8 2015), http://www.slate.com/blogs/the_slatest/2015/04/08/isis_and_the_icc_why_it_s_will_be_tough_to_prosecute_the_islamic_state_for.html

[xii] Fatou Bensouda, Statement, on the Alleged Crimes Committed by ISIS, International Criminal Court, (Apr. 8, 2015), http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/otp-stat-08-04-2015-1.aspx.

[xiii] Rome Statute of the International Criminal Court, art. 13, 2187 U.N.T.S. (Jul. 17 1998).

[xiv] Anna Brennan, Prosecuting ISIL before the International Criminal Court: Challenged and Obstacles, 19 Amer. Soc. Int. L. 21, (Sept. 17 2015), https://www.asil.org/insights/volume/19/issue/21/prosecuting-isil-international-criminal-court-challenges-and-obstacles#_edn7.

[xv] Id.

[xvi] Id., see, Fatou Bensouda, Statement, on the Alleged Crimes Committed by ISIS, International Criminal Court, (Apr. 8, 2015), http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/otp-stat-08-04-2015-1.aspx.

[xvii] Id. at xiv.

Exporting Torture – The Legal Loophole of Extraordinary Rendition

On September 26, 2002, Maher Arar, a dual citizen of Canada and Syria, was en route from Tunisia to Montreal in order to attend a business function.[1]While switching planes at Kennedy Airport in New York, Arar was stopped and detained by Federal Bureau of Investigation (“FBI”) officials under the belief that he might have ties to Al Qaeda.[2] After 12 days, FBI officials ultimately decided that he was inadmissible to the United States and concluded that the best course of action would be to transport Arar to Syria to allow their government to question and interrogate him.[3] Upon his arrival, Arar was jailed, interrogated, beaten, and tortured with electrical cables by Syrian officials. He was held in their custody for nearly a year before he was ultimately released to the Canadian embassy in Damascus and returned home to Ottawa.[4]

One of the most harrowing dilemmas this nation has faced in the wake of 9/11 has been the question of how we should treat suspected terrorists upon their capture. This question often forces us to decide between two seemingly undesirable options: Do we as a nation endorse our government’s use of torture, at the cost of our own inherent individual rights, in order to gain intelligence and protect American lives? Or do we reaffirm our country’s fundamental beliefs about human rights at the risk of limiting ourselves from gaining valuable intelligence?

While the Eighth Amendment and the Torture Victim Protection Act may ban the use of torture within the United States, this has not stopped the Central Intelligence Agency (“CIA”) and other intelligence gathering agencies from seeking loopholes that would allow them to subject detainees to interrogation methods that would otherwise not be allowed. One of these tactics is known extraordinary rendition. Extraordinary rendition is the practice of government sponsored detainment and extrajudicial transfer of an individual from one country to another. In many instances this practice has been used to circumvent U.S. and International law to allow suspected terrorists to be transferred to nations that allow for the use of torture in order to conduct otherwise illegal interrogation techniques.[7] The practice is widespread and an Open Society Justice Initiative report in 2013 alleged that over 50 nation states had participated in the CIA’s secret detention and extraordinary rendition program.[8]

Proponents of the practice are likely to argue that the United States government has a right to export detainees to other countries. In these instances even if we wanted to avoid the use of torture, the most we could do is demand diplomatic assurances from other nations that torture would not be used and then take these assurances at their word. Other proponents, who endorse the use of enhanced interrogation tactics, would likely go even further and argue that the practice of exporting suspected terrorists to nations that might engage in torture is necessary to save American lives. They would argue that the executive branch has a duty to protect the lives of its citizens and that the President has the authority to use whatever means available to stop suspected terrorists.

Opponents of the practice would argue that the use of extraordinary rendition is a clear violation of both the U.S. and International law. Title 22 of The U.S. Code of Federal Regulations explicitly states that the United States shall not, “expel, return, or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”[9] It is also clearly prohibited by the United Nations Convention Against Torture and Other Forms of Cruel and Unusual Punishment and numerous other international treaties.[10]

In Arar’s case, the U.S. Court of Appeals for the Second Circuit ultimately decided to dismiss the case, concluding that if the court made a ruling on the practice of extraordinary rendition, it would breach the separation of powers outlined by the Constitution and would expose highly sensitive national security material to the public.[11] Six years removed from the decision in Arar, the practice of extraordinary rendition continues today in nations across the world. With the regional instability continuing to plague the Middle East and terrorist organizations such as ISIS continuing to threaten attacks on the United States, there is little doubt that we will continue to face the moral and legal challenges that come with the practice of enhanced interrogation tactics and the exportation of detainees to countries that engage in those practices.

 

 

 

 

 

 

[1] Arar v. Ashcroft, 585 F. 3d 565-67 (2d. Cir. 2009).

[2] Id. at 565.

[3] Id.

[4] Id. at 567.

[5] 28 U.S.C. § 1350

[6] Max Fisher, A staggering map of the 54 countries that reportedly participated in the CIA’s rendition program, Washington Post (Feb. 5, 2013) https://www.washingtonpost.com/news/worldviews/wp/2013/02/05/a-staggering-map-of-the-54-countries-that-reportedly-participated-in-the-cias-rendition-program/.

[7] Id.

[8] Id.

[9] 22 C.F.R § 95.2.

[10] See CRS Report RL32890, Renditions: Constraints Imposed By Laws On Torture, https://www.fas.org/sgp/crs/natsec/RL32890.pdf

[11] Arar, 585 F.3d at 581

The Westgate Mall Attack Trial: Confusion, Accusations, and Delays.

9918179795_1067012983_zOn September 21, 2013, four gunmen stormed the Westgate Mall in Nairobi, Kenya. After a harrowing four-day siege, 67 people were left dead and at least 23 were missing. A year later, however, the details of the deadly attack are still unclear. Initial press reports presented conflicting evidence. The government first said there were up to 15 gunmen in the mall, and that the attack was planned over a long period of time in the Dadaab refugee camp. The Kenyan Cabinet Secretary for Foreign affairs claimed that a British woman and “two or three Americans” were among the attackers, but this information was later contradicted. According to Daily Nation, Kenya’s “leading newspaper,” “two of the attackers [were] believed to have flown from Somalia to Entebbe and traveled by road to Nairobi,” an assertion that directly contradicts the government claim that the attacks came from Dadaab. The Daily Nation later reported that the gunmen trained in Somalia before crossing into Kenya four months before the September massacre. It is still unclear whether the terrorists were killed[1] or escaped.[2]

In January, the trial began for four men charged with helping the Westgate Mall attackers. The men are accused of giving support and shelter to the al Shabaab gunmen and are being prosecuted under Kenya’s anti-terrorism laws. Although the proceedings have begun and some witnesses have testified, there are increasing complaints about the slow-moving trial. And in September, defense lawyers alleged that the suspects have been assaulted in detention. The complaints came during another period of adjournment, with the magistrate out of the country attending a seminar.[3] Defense lawyer Mwanki Gachmo told a reporter that, “the prison authorities say the suspects were wounded as prison officials tried to quell the riot, but the suspects claim they were attacked by the prison guards.”[4]

The problems in the Westgate trial raise serious legal concerns: are the accused being deprived of their constitutional right “to have the trial begin and conclude without unreasonable delay,”[5] and their right to freedom from “any form of violence from either public or private sources” and from being “treated . . . in a cruel, inhuman or degrading manner?”[6] These rights are also guaranteed in The Persons Deprived of Liberty Bill, passed in 2014.[7]

A 2012 Court of Appeal case may shed some light on the legal problems that could arise. There the appellant claimed that, after waiting nearly four years for judgment to be rendered, his right to a fair and speedy trial had been violated.[8] The Judge found that although the State sought and obtained adjournments on several occasions, the appellant himself significantly contributed to the delay in his trial.[9] Accordingly, his appeal failed.[10] Although it has only been nine months since the Westgate Mall attack trial commenced, there is no sign that either the Court or the prosecution has any intention of speeding up the proceedings. Further, the continual delays in the trial have been the direct result of adjournments sought and obtained by the prosecution, not the defense. If this pattern of delay continues, there may be serious legal ramifications. When the court finally issues its judgment, the defense attorneys could appeal and attempt to have the decision nullified because of the violation of the defendants’ constitutional rights and because of its distinguishing characteristics from the 2012 case. In a case that has captured both national and international attention, that result would be devastating.

The allegations of abuse at the hands of prison guards present serious constitutional consequences, as well. Admittedly, not much information is available about the nature of the abuse just yet but according to the High Court at Nairobi, “Cruel and inhuman treatment for purposes of the prohibition stated in . . . the Constitution does not refer to ordinary inconvenience or discomfort arising from . . . detention.”[11] While one lawyer contends that there was an incident in which an authority in the maximum prison “unleashed severe torture and assault on the inmates,” these claims are unsubstantiated. As reports continue to surface, the severity of the “attack” and the veracity of the claims will become clearer. For now, the four accused terrorists continue to languish in jail, waiting for their next day in court.

Photo courtesy of Ben Sutherland (license)


[1] Patrick Gathara, Mysteries Linger over Westgate Mall Attack, Aljazeera (Sep. 21, 2014), http://www.aljazeera.com/indepth/opinion/2014/09/mysteries-linger-over-westgate–201492171737803205.html (reporting that the Kenyan government claims that all four attackers are dead and their remains have been handed over to the FBI for identification).

[2] Michelle Shephard, Kenya Mall Attackers had Simple Plan, Sources Say, Toronto Star (Oct. 27, 2014), http://www.thestar.com/news/world/2014/01/10/kenya_mall_attackers_had_simple_plan_sources_say.html (reporting that the attackers are believed to have fled).

[3] See Westgate Attack Suspects’ Trial Adjourned, Nigeriana TV (Jan. 17, 2014), http://nigeriana.org/tv/westgate-attack-suspects-trial-adjourned/ (“The trial of four men charged in connection with the Westgate mall massacre has been adjourned for ten days after Kenyan prosecutors requested more time to compile their evidence.”).

[4] Kenya Westgate Mall Attack Trial Hit by Assault Claims, Yahoo! News (Sep. 23, 2014), http://news.yahoo.com/kenya-westgate-mall-attack-trial-hit-assault-claims-134916486.html.

[5] Constitution, art. 50 § 2(e) (2010) (Kenya).

[6] Id. at art. 29.

[7] The Persons Deprived of Liberty Bill, No. 30 (2014), Kenya Gazette Supplement No. 113 § 5, 7.

[8] See generally Peter Kariuki Mathi v. Republic, (2012) 93 K.L.R. 53 (Kenya), available at: http://kenyalaw.org/caselaw/cases/view/93786/.

[9] Id.

[10] Id.

[11] Leonard Mutua Munyao v. Attorney General, (2013) 229 L.L.R. (Kenya), available at: http://kenyalaw.org/caselaw/cases/view/96824/.