MADRID – Men beheaded, burned alive in cages, tortured to death, women and girls sold as sex slaves, children trained to be bloodthirsty murderers of the “caliphate” – some of the most horrible crimes in history have gone unpunished because the world is incapable of judging the Islamic State.
Luis Moreno Ocampo, the first prosecutor of the International Criminal Court, said in an interview with EFE that even after years of IS’s barbaric crimes, the international justice system appears paralyzed in the face of global terrorism.
“We live in the 21st century, but we have a political system basically defined in the 18th century, established around national states,” he said.
The Argentine lawyer and diplomat spoke about the legal challenges facing the international community in bringing IS fighters to justice. IS has claimed lives not only in Syria or Iraq but now – given the organization’s spread across the globe – to the horn of Africa, West Africa, Libya, the Sinai peninsula, the Gaza Strip, the Caucasus mountains and in Southeast Asia.
The system of international justice, set up in the 18th and 19th centuries first with the rise of Napoleon and the French Revolution and then with the century of Pax Britannica, or British Peace, when the United Kingdom and its global empire was economically and politically dominant across the planet, relies on world powers organizing themselves at joint conferences in international bodies and adjudicating treaties with accepted international legal standards.
The United Nations, founded in the aftermath of the Second World War in 1945, was the 20th century’s continuation of earlier international bodies such as the Concert of Europe (1815-1848, 1871-1914) and the League of Nations (1920-1946).
Yet, explained Ocampo, by the end of the 20th century and the now in the 21st century, with the rise of the internet and social media platforms, terrorist organizations like IS go online to digitally recruit and spread their ideologies of hate.
Unfortunately, the international community appears unable or reluctant to share the necessary information to cut off IS’s global financing or end its influence across the internet.
“We have to invent something new, which includes a more intelligent justice (system),” Ocampo stressed, “The anxiety and frustration caused by IS create an opportunity to rethink new institutions.”
How are these new legal institutions supposed to prosecute IS fighters when, following Saturday’s Kurdish militia victory against IS forces in Baghuz in eastern Syria, the new fear is about possible IS global sleeper cells and online calls for martyrdom through social media networks?
Ocampo outlined a possible justice scenario in the future: Were Abu Bakr al-Baghdadi – IS leader – to be captured alive, who would judge him, where, and for what crimes? What courts, asked Ocampo, are going to prosecute the thousands of IS members who have surrendered during the fall of Baghuz?
The UN first prosecutor was quick to emphasize: “We cannot fall into the error of using war against terror (as a substitute for legal proceedings).”
Killing in the name of the war on terror is problematic, underscored Ocampo, because killing terrorists may have the result of inculcating a new generation of extremists, youngsters from families of slain extremist fighters who seek revenge against the world community for the death of their family member.
The UN’s ICC, where Ocampo works, seems to be one venue where captured IS fighters and leaders might see justice.
However, since neither Iraq nor Syria are among the signatories of the 1998 Rome Statute which set up the international court, the ICC presently does not have legal jurisdiction over captured IS fighters and so cannot intervene and judge the jailed IS members unless requested to by the UN Security Council – and unfortunately such a request does not seem likely.
“It (the ICC) will not receive the mandate to investigate what (IS did) in Syria (or Iraq) because (the court) would judge all parties equal and neither the US or Russia (permanent UN Security Council members)... will allow (the ICC to act),” Ocampo said.
However, there is “a tactical solution” in bringing the IS leader al-Baghdadi before the ICC: the IS genocide in 2014 against the Yazidi minority in Iraq is recognized and condemned by the UN.
In August 2014, more than 6,000 people were kidnapped and some 5,000 were killed in the Sinjar Mountains, the minority’s home for centuries.
The 2018 co-recipient of Nobel Peace Prize, Nadia Murad, a Yazidi woman who herself was kidnapped and held by IS, has discussed the need for justice saying in her 2018 Nobel Prize acceptance speech: “Justice is the only way to achieve peace and coexistence ... If we do not want to repeat cases of rape and captivity against women, we must hold to account those who have used sexual violence as a weapon to commit crimes against women and girls.”
What is ultimately needed, stressed Ocampo, in international law reform is “a different model, not only of punishment but of investigation of (IS’ and other fundamentalist groups’) finances and its fundraisers.”