The Prosecution of ISIS

The chief prosecutor of the International Criminal Court (“ICC”), Fatou Bensouda, has stated that her office lacks the jurisdiction to investigate and prosecute the Islamic State in Iraq and Syria (“ISIS”).[1] Although there are an abundance of reports and potential evidence of the terrorist group’s violation of human rights, and a plethora of other crimes, unless further action is taken by the United Nations Security Council, the ICC is most likely never going to be able to open an official investigation into ISIS.

ISIS was officially created in October 2006, as a splinter group of Al Qaeda. Known for its brutal implementation of Sharia Law and their goal to create a caliphate all over the world, ISIS has committed and taken responsibility for a litany of war crimes and terroristic plots including the recent attacks in Paris. ISIS is known for killing dozens of people at a time and carrying out public executions, crucifixion and other acts.[2] These killings are filmed, produced and uploaded to the Internet and distributed through social media for the world to see.

The members of ISIS are unlikely to face prosecution from the countries in which it has taken a stronghold, namely Syria and Iraq. Therefore, there are only two ways for these terrorists to face prosecution: through international tribunals or through capture in a country in which they are wanted.

The issue with the use of international tribunals, namely the ICC, is a lack of jurisdiction. The ICC was established in Rome in 1998 by way of the Rome Statute.[3] It was created in response to the success of the ad-hoc tribunals—the International Criminal Tribunal for former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda (“ICTR”). These two tribunals were created by the United Nations Security Council to investigate and prosecute crimes committed in these two specific geographic areas. Their successes prompted outcry for a more permanent court that would hold jurisdiction over many more countries.

The Rome Statute holds that the Court will have jurisdiction over certain prescribed crimes. These crimes include, but are not limited to genocide, crimes against humanity, and war crimes.[4] Article 4 of the Statute describes the legal status of the Court and states that the “Court may exercise its functions and powers as provided in this Statute, on the territory of any State Party and, by special agreement, on the territory of any other State.[5] Therefore, to have jurisdiction over ISIS, the countries in which ISIS has operated from—mainly Syria and Iraq—would have to be State Parties to the Rome Statute, which they are currently not. This is what the chief prosecutor explained to the press in his statement. It seems that absent a “special agreement” there is simply nothing that the prosecution can do in regards to ISIS members. The special agreement would need to be adopted by the State Parties to the Rome Statute, but unless there is a real call to action by members of the Security Council, this is unlikely to ever happen.

The ICC is within its power to exercise jurisdiction over captured ISIS members in countries which are parties to the Rome Statute. However, this is unlikely to occur because the Court looks to prosecute those who are in positions of power within organizations and have connections to, or perpetrated the crimes outlined in the Rome Statute. ISIS recruits and those operating in Europe and abroad are usually low-ranking members not worth the resources. Particularly when countries are already prosecuting and using them to gather intelligence.

It is likely that ISIS member and leaders never answer for their crimes in an international court of law unless action is taken by the Security Council to refer the crisis occurring in Syria and Iraq to the ICC and a special agreement is undertaken. However unlikely this is, ISIS will continue to be fought by the international community outside the court system.

 

Tom Osborne is a 3L and a senior editor of the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.


[1] Marlise Simons, International Criminal Court Says ISIS is Out of Its Jurisdiction, NY Times (Apr. 8, 2015) available at http://www.nytimes.com/2015/04/09/world/middleeast/international-criminal-court-says-isis-is-out-of-its-jurisdiction.html

[2] ISIS Fast Facts, CNN Library, available at http://www.cnn.com/2014/08/08/world/isis-fast-facts/

[3] Rome Statute of the International Criminal Court, International Criminal Court (Jan. 16, 2002), available at https://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf

[4] Id. at 10.

[5] Id. at 2.

Child Marriage in Africa

More than 40 percent of African girls face the prospect of child marriage. Meaning, that these girls will be married before reaching the age of 18. The Human Rights Watch has been calling attention to this phenomenon and the dire consequences that result for these women. Without progress to prevent child marriage, the number of married girls in Africa will rise from 125 million to 310 million by 2050.

Child marriage occurs in African countries due to a variety of reasons. Namely, poverty, tradition, safety and gender inequality. Poverty is widespread in Africa and marriage is a way for a family to reduce their expenses. Many places in Africa have practiced child marriage for generations and it is a tradition that is engrained in the people where straying from it could lead to exclusion. Girls in Africa are also much more at risk of physical and sexual assault, and marriage can be seen as a way to ensure safety. Lastly, in many of the countries, girls are seen as a burden or commodity where they are valued less than boys. All of these factors contribute to the practice of child marriage.

The reasons child marriage needs to cease, outlined by Girls Not Brides, is the following:

  • Life-threatening health consequences for girls: Many girls will become pregnant soon after they are married when their bodies are not capable to safely deliver children. Additionally, they are more at risk of contracting sexually transmitted diseases.
  • Denial of the right to education: Once married, most girls will drop out of school entirely. Over 60 percent of child brides have no formal education.
  • Risk of sexual, physical and psychological violence: Child brides are more likely to be subjected to violence.
  • Negative impact on the economy: Millions of girls will not be educated and will not be able to financially contribute to their household to lift the family out of poverty. It is a never-ending cycle.

There have been efforts by organizations to help put a stop to this harmful practice. Educating the local communities is one of the most powerful tools advocates can implement. According to Girls Not Brides, advocate groups have successfully gotten many African countries to recognize that child marriage is a violation of human rights and that the minimum age of consent is 18. A few African countries have even developed strategies to end child marriage. This includes education in addition to legislation. Egypt has developed a five-year implementation plan that relies on a partnership between government and private actors. Zambia has also launched a similar program to ensure that girls’ rights are protected and child marriage is no longer practiced.

Slowly the child marriage rates are decreasing, but more work needs to be done so this practice is all-together banished. All African governments should implement comprehensive plans that aims to curb child marriage. Women and girls need to be empowered and better educated. Families and communities need to be made aware of the issues and the harmful effects of child marriage on the women and the community as a whole.

 

Tom Osborne is a 3L and a senior editor of the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.


Citations to articles & documents are included in the aforementioned underlined hyperlinks.

Argentina’s New President and Economic Reform

For the first time in 14 years, the people of Argentina said “no” to the Peronist regime and elected a conservative, non-Peronist as president. Mauricio Macri was sworn in as president of the country on December 10th and his swearing-in marks a departure from the leftist ideology that has pervaded not only the presidency, but the legislature, for more than a decade.

Like many of the other Latin American countries, Argentina has been crippled by indebtedness, hyperinflation, stagnation, deficits, and corruption, that has steadily increased since World War II.[1] The Peronist party ruled the country by nationalizing rather than privatizing many of the country’s industries. In the Economic Freedom of the World Report for 2013, Argentina was ranked 151 out of 157 countries.[2] Ex-President Cristina Kirchner and her husband, Nestor Kirchner, before her sharply increased spending on social welfare programs and raised tariffs in attempts to protect local industries.[3] They also aligned the country with leftist leaders like late Venezuelan President Hugo Chavez and Bolivian President Evo Morales.[4] The country’s poverty and inflation are nearly 25 percent, some of the highest rates in all of Latin America.[5]

President Macri has vowed for economic reform. His political promises included, among many, the development of infrastructure and the development of industries in many of Argentina’s providences.[6] As one of the richest men in Argentina and as former mayor of the city of Buenos Aires, Macri understands the importance of capitalism and how the government should not be in complete control of industry.

This change in ideology, will mean good things for the United States and for Argentina. Macri has already spoken with Vice President Biden about strengthening cooperation between the countries.[7] Relations with the United States have been strained for the past decade due to enormous debts owed to United States creditors. One of the ongoing cases has been with the recent court ruling that U.S. hedge funds do not have to accept restructured loan payments on bonds. This bitter fight was undertaken by the ex-president who had legislation passed in defiance of the U.S. courts’ rulings.[8]

Presumably with Macri, the situation will improve and relations with the United States will only get better. It will be a long journey until the country is able to come out of the economic crisis it has made for itself. However, with strong leadership and a proactive government it will be possible for Argentina to one day join the ranks of the most prosperous countries.

 

Tom Osborne is a 3L and a senior editor of the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.


 

[1] Doug Bandow, Mauricio Macri Takes Helm In Argentina: Tough Battle With Vulture Politicians Ahead, Forbes, Dec. 10, 2015.

[2] Id.

[3] Argentina: New President Macri Promises Major Changes and Honesty, NBC News, Dec. 10, 2015.

[4] See Id.

[5] Taos Turner, Argentina Inaugurates President Mauricio Macri, The Wall Street Journal, Dec. 10, 2015.

[6] Id.

[7] Readout of Vice President Biden’s Call with President-Elect Mauricio Macri of Argentina, White House Press Release, Dec. 5, 2015.

[8] Argentina accuses US judge of being ‘imperialist’ after debt plan ruling, Reuters, Aug. 22, 2014.