The radical group, also known as ISIS, is executing people, stealing and selling women and children, using child soldiers, and destroying Iraq’s and Syria’s cultural and religious heritage. It is also known to use chemical weapons, specifically the proven use of chloride gas against the Kurdish Peshmerga.
Various departments of the United Nations have mentioned that war crimes are being committed, recently referring to a "possible genocide" against the Yezidi minority.
Several days ago, the French foreign minister pointed to the International Criminal Court (ICC) as a possible tool to punish ISIS for its crimes, calling on the UN Security Council to refer the situations in Iraq and Syria to The Hague.
Apart from declarations and reports, however, nothing substantial has emerged besides words.
The fact that no juridical procedures have been started against ISIS, makes the world feel powerless against the atrocities. It also allows ISIS to pursue its brutal agenda without fear of facing justice.
The first problem international court lawyers encounter, when considering legal action, must be that ISIS is not recognized as a state by the official bodies. Therefore, it cannot be charged as a state and its leaders cannot be prosecuted as leaders of a state committing crimes.
Another question is, what punishment could possibly make ISIS alter its behavior? This is hard to imagine, but not impossible. Embargoes are usually put in place against a state, but many leaders in the Middle East have also been targeted at their banks or businesses. International arrest warrants can limit traveling and keep security services on the alert.
Since ISIS gets most of its income from the sale of oil and antiques, authorities have tried to limit their trading partners. This measure has been averted by using the region’s robust and profitable black market.
The international community should look at all possibilities to prohibit trade with ISIS on all levels, and to prosecute those earning money this way. This would send a message that trading with ISIS can be very costly and punished severely.
Experienced black market operators are not easily caught, some being veteran smugglers or protected by local politicians. Others are too well known, like the Syrian President Bashir al-Assad, who reportedly buys his own oil at low cost from ISIS, and then it sells it for profit on the world markets. There must be ways to use world courts to make this kind of trade less lucrative.
Even though ISIS does not accept any legal system outside Sharia-law and rulings derived from decisions of the Prophet and the first caliphs, it cannot be allowed to operate outside the rules and laws that shape our world.
In fact, should other non-state actors follow the ISIS pattern, it could be the beginning of the end of our international judicial system.
Most war crimes trials start when a conflict is over. In this case, though, states could follow France’s advice and refer ISIS leaders or war crimes suspects to the ICC.
Western countries could arrest their fighters that committed crimes in Iraq and Syria and either put them on trial at home or send them to the ICC.
Even Iraq could refer ISIS leaders to The Hague. The UN could play a role as well, as it did in the case against one of the sons of former Libyan leader Muammar Ghadafi.
One of the main problem lawyers mention is the difficulty to find evidence in a war zone. For many of the atrocities committed, however, local and international NGOs have already done research and written reports. The hundreds of Yezidi who were able to escape ISIS can also serve as witnesses.
If the world’s lawyers actively explore the legal avenues open to them, the international courts could have a role in the battle against the atrocities of ISIS.
Judit Neurink is the author of “The ISIS War,” a book recently published in the Netherlands.
The views in this article are those of the author and do not necessarily reflect the position of Rudaw.
