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”). 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. 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. 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. 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. 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.
 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
 ISIS Fast Facts, CNN Library, available at http://www.cnn.com/2014/08/08/world/isis-fast-facts/
 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
 Id. at 10.
 Id. at 2.