Swords of Justice: Charging ISIS with Crimes against Humanity

After we defeat ISIS, bring their leaders to The Hague.

Since the Islamic State (IS) ’s unprecedented land grab in June 2014, in which it seized an expansive territory between Aleppo, Raqqa, Mosul, and Baghdad, thousands of Christians, Yazidis and Muslims have been mercilessly slaughtered in the most inhumane way. Survivors are either subjugated as dhimmi, or are internally displaced, lacking life’s bare essentials.  A recent addition to the Islamic State’s catalogue of atrocities is their Libyan franchise’s recent snuff film, featuring the meticulously choreographed, ritualistic beheading of twenty-one Coptic Christian migrant workers, as a message to the ‘people of the cross.’

It has become plainly evident that Christians are being dragged toward extinction in the Middle East, and that the Islamic State is savagely hastening that trend. In the wake of World War II, following the Holocaust, the world community made its first collective declaration outlawing genocide. The Convention on the Prevention & Punishment of the Crime of Genocide (CPPCG) entered into force in 1951, and has since enabled the prosecution and conviction of former Rwandan Prime Minister Jean Kambanda. It has become clear that the Islamist campaign to cleanse the Islamic world of its Christian population is nothing short of genocide, even by the strictest interpretation of the 1951 convention. The CPPCG defines genocide as the intent to destroy a national, ethnic or religious group by: killing members of the group; causing serious bodily/mental harm to members of the group; inflicting conditions to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; and forcibly transferring children of the group to another group.

However, the world, while looking on, has been hesitant to acknowledge these atrocities as genocide.

Just prior to the end of her tenure in fall 2014, UN High Commissioner for Human Rights, Navi Pillay, acknowledged that “[the Islamic State] is systematically targeting men, women and children based on their religious affiliation…ruthlessly carrying out widespread religious cleansing.”  She further opined that “all possible measures [must be] taken to avoid a mass atrocity and genocide.”

After five months of American airstrikes against the Islamic State, President Obama has cited the “genocide occurring against religious and ethnic minority groups, including Iraqi Christians” in an attempt to garner congressional buy-in for his proposed Authorization for Use of Military Force against Terrorists (AUMF). Resolve, and proper coordination with a coalition of moderate Arab states will allow military operations to deal a damaging blow to the Islamic state and bring relief to victims threatened with genocide. However, a more perfect justice would require more than kinetic military operations alone. The world community must pursue international criminal prosecution for the crime of genocide, in accordance with the 1951 Genocide Convention.  Posthumously or in absentia, criminal prosecution of the responsible actors would be of untold precedential value.

There are a number of possible mechanisms for prosecution worth exploring. Each presents its own jurisdictional challenges, resulting directly from the Islamic State’s international personality—that is, its legal classification as an international entity.  Thus, we must first determine whether the Islamic State is a bona fide state actor under the 1933 Montevideo Convention on the Rights and Duties of States.  Subsequent jurisdictional analysis will rest exclusively on the Islamic State’s international personality.

According to the Montevideo Convention, a state must have: a permanent population; defined territory; a government; and the capacity to enter into relations with other states. While the Islamic State does have a population, it would be a stretch to characterize it as ‘permanent,’ as it is not an organic, interdependent community.  It is composed of mercenary hordes who have come together solely for a nefarious purpose.

Similarly, the amorphous borders of the territory dominated by the Islamic State change everyday.  

Moreover, its territory is riddled with internal pockets of government strongholds or the territories of various other armed groups. While the Islamic State does have a proto-government apparatus, and boasts a Sharia court system, it lacks the capacity to enter into international relations, due to lack of sovereign recognition.

The Islamic State clearly falls short of the Montevideo standard, and thus, its international personality is simply that of an armed non-state actor (ANSA).  As an ANSA, the Islamic State cannot be—and certainly is not—a party to the CPPCG, or any other international treaty.