Prosecuting “The Beatles” before the ICC: A Gateway for the Opening of an Investigation in Syria?

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Cross-posted from EJIL:Talk!

Calls have been mounting for Alexanda Kotey and El Shafee Elsheikh, two fighters captured by the Syrian Kurds, to be tried in the UK, the US, or at the International Criminal Court (ICC) in The Hague. Kotey and Elsheikh were part of a group of four Islamic State militants known as “the Beatles” (because of their British accents). Although not particularly high ranking within ISIS, the Beatles are infamous for their role in the imprisonment, torture and killing of Western hostages. There is reason to believe that they are responsible for war crimes and crimes against humanity.

The purpose of this post is to examine the feasibility and propriety of bringing the Beatles before the ICC for trial. Kotey and Elsheikh have been stripped of their British citizenship so as to stop them from re-entering the UK. The UK defence minister, Tobias Ellwood, is however arguing that Kotey and Elsheikh should be tried by the ICC. Kotey himself affirmed that a trial at the ICC “would be the logical solution”. As of now, the Syrian Kurds do not seem to have received a request for the surrender of the two fighters to the Court.

The Temporal Scope of the ICC’s Personal Jurisdiction

Apart from the referral of a situation by the UN Security Council under Chapter VII of the UN Charter, jurisdiction of the ICC is limited to crimes committed in the territory, or by nationals, of States Party to the Rome Statute. Syria is not party to the Rome Statute and in 2014, an attempt to refer the situation in Syria to the ICC was vetoed by Russia and China. Therefore, the Court’s jurisdiction would have to be based on the nationality of the Beatles.

As mentioned above, it appears that the Beatles have recently been stripped of their UK citizenship. Let’s assume for the sake of this post that the UK citizenship of the Beatles was revoked after they had committed their crimes – which is most probably the case – and that they were not dual-nationals of a State that is – like the UK – party to the Rome Statute. One could argue that since their UK citizenship has been revoked, the ICC lost its personal jurisdiction over them. This raises a question as to whether jurisdiction should be based on nationality at the time of the crime, at the time of prosecution, or both.

As Deen-Racsmany demonstrates, international law does not settle the issue – no treaty speaks to this and State practice diverges. Some guidance can however be found in Article 5 of the 1935 Harvard Draft Convention on Jurisdiction with Respect to Crime. According to this provision,  jurisdiction is based on nationality either at the time of the commission of the crime, or at the time of prosecution.

Article 12(2)(b) of the Rome Statute states that the Court may exercise jurisdiction if ‘the person accused of the crime is a national’ (emphasis added) of a State Party. From the wording of Article 12, it would seem that jurisdiction is based on nationality at the time of prosecution. Further, a literal reading of the provision would also render an individual who acquires a State party’s nationality after the commission of a crime subject to ICC jurisdiction. The interpretation would be different if the article read ‘was’ instead of ‘is’a national.

There are nonetheless practical reasons for also accepting jurisdiction based on nationality at the time of the crime. For example, to base the determination on whether or not the accused is a national at the time of the prosecution could give an incentive to States to revoke citizenship of its nationals should they come under threat of ICC indictment. Obviously, such an arrangement could create a loophole that undermines the ICC’s aim of ending impunity for international crimes.  Furthermore, while it may be contended that basing jurisdiction on nationality of the accused at the time of prosecution might lead to a retroactive exercise of jurisdiction, a focus on the nationality at the time of the crime does not clash with nullum crimen sine lege. Hence, one could argue that basing jurisdiction on the nationality of the accused at the time of the crime is more consistent with the Rome Statute than nationality at the time of prosecution.

Since one understanding derives from literal interpretation and the other from a contextual interpretation, I would assume that both are valid. Therefore, article 12 (2)(b) should be understood as including nationality at the time of the crime, as wells as at the time of prosecution.

Which Situation Falls within the Court’s Jurisdiction?

Having established that the Beatles’ alleged crimes fall within the Court’s personal jurisdiction, let us consider whether the ICC should exercise jurisdiction. In 2015, Fatou Bensouda, Prosecutor of the ICC, issued a ‘clarification’ concerning the possibility of opening an investigation into crimes committed by ISIS. The information available to the Office of the Prosecutor (OTP) at the time indicated ‘that ISIS is a military and political organisation primarily led by nationals of Iraq and Syria.’ The Prosecutor had opined that since perpetrators who were nationals of States party to the ICC did not appear to be those most responsible – within the leadership of ISIS – it would be more appropriate for the concerned States to prosecute these individuals themselves.

Recent data indicates that around 40,000 fighters from more than 120 countries have joined the fighting in Iraq and Syria. 123 States are party to the Rome Statute. Therefore, it is highly probable that a significant number of foreign fighters fall within the personal jurisdiction of the ICC. In saying that, there is no indication that the nationalities of ISIS leadership has changed since the OTP’s decision not to investigate in 2015.

The ‘most responsible person’ criterion is not contained in the Rome Statute. It emerges from the OTP’s prosecutorial ‘policy’ and from the Court’s case law on gravity. According to the ICC’s jurisprudence, the first part of the gravity requirement involves a generic assessment of whether the persons who are likely to be the object of an investigation include those who may bear the greatest responsibility for the alleged crimes committed. The second part assesses gravity both quantitatively and qualitatively, considering the nature, scale, and manner of commission of the alleged crimes, as well as their impact.

What is meant by ‘the most responsible person’ criterion was debated when the OTP refused to open an investigation into the situation concerning the Mavi Marmara because inter alia there was not “a reasonable basis to believe that ‘senior IDF commanders and Israeli leaders’ were responsible as perpetrators or planners” of the alleged crimes. The Pre-Trial Chamber (PTC) had, however, rejectedthis reasoning on the ground that the ‘most responsible person’ criterion

relates to the Prosecutor’s ability to investigate and prosecute those being the most responsible for the crimes under consideration and not as such to the seniority or hierarchical position of those who may be responsible for such crimes. (par. 23)

Kevin Jon Heller and Dov Jacobs have argued that the OTP’s ability to investigate and prosecute is not relevant to gravity. Jacobs, in particular, understands ‘ability’ – as used by the PTC – as relating to the potential for a successful prosecution. I have elsewhere written that if one considered the lack of ability as a lack of jurisdiction – due for instance to death or underage – over the most responsible perpetrators, such inability to prosecute could fall within the gravity requirement.

Likewise, I believe that the inability of the Prosecutor to investigate and prosecute the most responsible persons due to the absence of territorial and active nationality jurisdiction over ISIS leadership relates to the gravity requirement. True, this is a matter that is also attached to the first question that needs to be asked when opening an investigation: whether the Court has jurisdiction over the crimes committed. The answers to this question define the jurisdictional parameters of the situation. In the case of the Beatles, the situation would have to be defined as ISIS Foreign Fighters/Syria. It cannot concern Syria – or even ISIS – as a whole but only foreign fighters who were nationals of an ICC State party and committed international crimes in Syria. To me, the fact that the situation cannot capture individuals who might bear the greatest responsibility relates indeed to situational gravity.

However, this jurisdictional inability does not entirely bar the opening of an investigation under the gravity requirement. The nature, scale, manner of commission, and impact of the crimes perpetrated by, for example, the Beatles, are militating in favour of the conclusion that the potential cases would be of sufficient gravity. Hence, the situation in Syria could essentially be opened with the crimes committed by foreign fighters who are nationals of State parties as its focus.

Is it in the Interests of Justice to Open an ISIS Foreign Fighter/Syria Situation?

While the gravity element cannot stand alone for not opening an investigation over crimes committed by the Beatles (and their likes), other elements need to be assessed. In particular, we need to consider whether it is ‘in the interests of justice’ to prosecute the Beatles before the ICC given that prosecutions cannot be undertaken regarding the whole situation in Syria. I believe that at least four reasons – broadly falling within the interests of (international criminal) justice-, would justify not opening an investigation until a broader jurisdiction basis is established over Syria.

First, the individualisation of the Syrian conflict to low ranking perpetrators (for instance, the Beatles were cell guards) who have allegedly committed crimes against Westerners in Syria fails to do justice for most victims of this conflict. Here, by ‘individualisation’ I mean the process in which the ICC will establish whether crimes have been committed in Syria. While the situation in which the Beatles would fall is limited to ISIS foreign fighters, it will be perceived as the ICC situation in Syria. Given the publicity the ICC receives, the trials it would hold will be viewed as attributing the causes of the Syrian war – to a limited (and partial) segment of those responsible. Furthermore, while the ICC primary aim is not to set an historical record of mass atrocities, its trials cannot evade expectations that they make sense of the mass atrocity situations that fall within their purview. The situation in Syria is much more complex than ISIS foreign fighters. Using international criminal justice against small fish of a particular group, who are fighting within a conflict involving multiple actors, risks seriously distorting the Syrian conflict and narrowing down its underlying causes to extremist Islam.

Second, only prosecuting ISIS foreign fighters will most probably fail to deter the commission of further crimes in Syria. Nationals of non-Party States to the Rome Statute will have no reason to fear ICC investigation and trial. Similarly, perpetrators of international crimes in Syria that are not fighting with ISIS – but against or for another cause – will take the ICC’s situation over ISIS foreign fighters as a green light. Ultimately, a situation of such limited scope could solemnise the reign of impunity in Syria.

Third, the exclusive prosecution of foreign fighters with State parties’ nationality would mark the complete end of a principled ‘selectivity’. Indeed, the OTP’s approach to its discretion as to who to prosecute in the Syrian conflict would clearly not be based on impact, but simply on ability. There are several reasons to critique the selectivity applied by the OTP as of now. However, it is also a factor that needs to be reconciled with our understanding of what the ICC is. The Court cannot prosecute all individuals responsible for international crimes. The opening of an investigation into Syria, where only ISIS foreign fighters would be subject to the ICC’s jurisdiction, would confirm that the Court formally accepts to pick only ‘the lowest hanging fruit’ that have been handed over.

Finally, opening an investigation over crimes in Syria with jurisdiction limited to ISIS foreign fighters will not support States in triggering their national systems for the prosecution of crimes committed in Syria. Quite the contrary, it will reinforce the incentive for Western States to refrain from prosecuting foreign fighters in their own courts in the hope that the ICC will take over the cases.

To sum up, taking into account the gravity of the situation and the interests of victims, it is doubtful that an investigation would serve the interests of justice. Furthermore, I am afraid that bringing the Beatles to the ICC would essentially fit their aspiration. Foreign fighters have been diagnosed with (profound and) violent nihilism. One could imagine that they would be rejoiced in the fact that everyone would now know who they are. A domestic trial does not offer the same type of superstar standing.