Fourth Year Thesis

Law School
Northumbria University
The Self-Declared Islamic State and the International
Criminal Court
Word Count: 14,903
This project is submitted for the qualification of MLaw.
Date of Submission: 30th
April 2015
Name: Matthew Boxshall
Student No: 11017536

2
Table of Contents
Introduction 4
Chapter 1: The Self-Declared Islamic State 6
Chapter 2: Crimes Committed by the Islamic State and ICC Jurisdiction 16
Chapter 3: The Islamic States Direct and Public Incitement to Commit 28
Genocide
Chapter 4: Jurisdiction: A legal minefield 42
Conclusion 49
Bibliography 52

3
Research Declaration
I confirm that this project is entirely my own work and that the research undertaken for the
completion of this project was based entirely on secondary material or data already in the public
domain (case law, journal articles, published surveys, etc.). It did not involve people in data
collection through empirical research (e.g. interviews, questionnaires or observation).
Signed: …………………………
Dated: …………………………

4
Introduction
On the 5th July 2014 Abu Bakr al-Baghdadi stepped into the pulpit of the Great Mosque of al-
Nuri in Mosul, making his first appearance as the legitimately appointed ‘Caliph’. This
personified a predominant cornerstone in religious history, propelling the Islamic State from a
developing terror group to a fully formed radically indoctrinated spiritual army. The rapid
development of the Islamic State is unprecedented, with foreign fighters performing ‘hijrah’
(emigration) to join their ranks in an unparalleled fashion. Their criminal acts continue to shock
the consciousness of humanity as their barbarism is depicted globally via the internet. Coalition
led airstrikes are proving to have a lacklustre effect in dismantling the Islamic State and pose
a significant threat to civilians due to the large swathes of land subject to IS control. The
overarching aim of this paper is to critically analyse the International Criminal Court in relation
to its applicability to the Islamic State.
Chapter one depicts the Islamic State’s rise to power whilst providing an insight into
the religious mentality fuelling their actions. It brings to light the consequences which arise out
of a decade of sectarian discrimination, and how oppressive regimes create a state of mind in
society which can be manipulated and radicalised. It then moves on to analyse the actions of
the Islamic State from a Human Rights perspective, bringing to the light the vast array of
violations which are being committed, spanning over the whole spectrum of international law.
In order for the International Criminal Court to prosecute members of the Islamic State, their
crimes must fall within the subject-matter jurisdiction of the Court. Chapter two consists of a
critical analysis of the crimes committed by the Islamic State with the aim of identifying the
specific actus reus and mens rea required to find perpetrators guilty of committing mass murder,
rape and execution amounting to war crimes and crimes against humanity. The Islamic State
has allegedly committed genocide in Northern Iraq where they intentionally orchestrated the
mass murder of members of the Yezidi community. In chapter three I examine the linguistic
content of IS propaganda in order to establish evidence of their specific intent to directly and
publicly incite others to commit genocide. After finding that Islamic State crimes fall within
the ambit of the Rome Statute of the International Criminal Court, chapter four goes further to
analyse the Courts subject-matter jurisdiction, exploring how, if at all, the Court would be able
to pursue individuals of the Islamic State, whilst bringing to light any implications that arise
thereof. It must be noted that it is beyond the scope of this paper to conduct an in depth analysis
of some of the political issues which arise when analysing the Court. However, as the ICC is

5
entwined with global politics, at some instances a political discussion could not have been
avoided due to the fundamental influence it has over the Court.
The definitive characteristics of the Islamic State present a perfect target for the Office
of the Prosecutor. However, the Court is faced with a number of legal obstacles which must be
overcome in order to deliver justice to those most criminally responsible. In this paper the
argument that the Court should pursue the Islamic State is implemented throughout. Addressing
the significant issues which prevent the Court from doing so leads us to believe that the
International Community falls under a collective duty to relinquish the International Criminal
Court from the chains which currently restrain it.
Chapter 1: The Self-Declared ‘Islamic State’

6
On 29 June 2014, an Islamic State spokesperson, Abu Mohammed Al-Adnani announced the
formation of an ‘Islamic Caliphate’ branding ISIS as ‘the Islamic State’.1 The self-declared
Islamic State, previously known as (ISIL/ISIS), proclaimed itself a “Caliphate” initially based
on, but not limited to, territories it controls in Syria and Iraq. Its creation had formed an integral
part of the group’s rhetorical and military expansionist aims since the outset of their activities.2
The proclamation of a caliphate means that “all borders and barriers among Islamic Countries
are now invalid. There will be a single Islamic ecosystem and currency, and an army to defend
it”.3 The group has established a command and control system under Abu Bakr Al-Baghdadi.
Baghdadi was announced as the Caliph (the Amir al-Mu’minin, 4 successor to Prophet
Mohamed).5 Dressed in black, he presented himself as the heir to the medieval Abbasid
caliphate as well as the embodied spirit of his heroic predecessor, Abu Musab al-Zarqawi.6
This was a monumental move for the group as announcing a caliphate claims religious
authority over all Muslims worldwide and aims to bring Muslim-inhabited regions under its
control.
The group adhere to an extremely radical interpretation of Islam, believing to be in the
sole possession of the “absolute truth”, unapologetically purifying Islam through execution.7
This exemplifies how the far reaching freedom of religion can result in the widespread and
systematic suppression and murder of countless human beings. In Iraq alone it’s estimated (at
the time of writing) that 11,602 civilians have been killed and a further 21,766 wounded
between January 2014 and December 2014, UNAMI warn these figures are to be taken as the
very minimum.8 In addition to this it was estimated that two million persons have been
1 UN Assistance Mission for Iraq ‘Report on the Protection of Civilians in the Non-international Armed Conflict
in Iraq 6 July – 10 September 2014’, 2nd October 2014, available at:
http://www.ohchr.org/EN/Countries/MENARegion/Pages/UNAMIHRReports.aspx>
2 UN Independent InternationalCommission of Inquiry on the Syrian Arab Republic, 'Rule of terror: living
under ISIS', 14 November 2014, 3 Available at:
http://www.ohchr.org/Documents/HRBodies/HRCouncil/CoISyria/HRC_CRP_ISIS_14Nov2014.pdf
3 Radwan Mortada, 'What does ISIS' declaration of a caliphate mean?' (English.al-akhbar, 2014)
<http://english.al-akhbar.com/node/20378> accessed 13 February 2015
4 The Amir al-Mu’minin translates to ‘the Commander of the Faithful’
http://www.oxfordislamicstudies.com/article/opr/t125/e152?_hi=0&_pos=18
5 Graeme Wood,‘What ISIS’s Leader Really Wants,The longer he lives, the more powerful he becomes ’ (New
Republic, 2014) http://www.newrepublic.com/article/119259/isis-history-islamic-states-new-caliphate-syria-
and-iraq accessed 7th January 2015
6 Michael Weiss and Hassan Hassan,‘ISIS: Inside the Army of Terror’ (1st edn, Regan Arts,2015)
7 Graeme Wood,‘What ISIS really want: The Response’(2015)
http://www.theatlantic.com/international/archive/2015/02/what-isis-really-wants-reader-response-
atlantic/385710/ accessed 25th February 2015
8 United Nations Assistance Mission forIraq ‘Report on the Protection of Civilians in the Non-international
Armed Conflict in Iraq 11 September – 10 December 2014’, 23rd February 2015, accessed at:
http://www.ohchr.org/EN/Countries/MENARegion/Pages/UNAMIHRReports.aspx> Summary

7
displaced in Iraq, compromising some 334,011 families.9 The Islamic State’s gross violations
of human rights are fuelled by sectarian discrimination. Turkmen, Shabaks, Christians, Yezidi,
Sabaeans, Kaka’e, Faili Kurds, Shi’ite Arab and others have been systematically targeted as
part of a deliberate policy aimed at eliminating these ethnic and religious communities.10 Abu
Bakr al-Baghdadi, in his speech emphasising the global nature of the Caliphate, called for all
Muslims to perform Hijrah,11 in particular; doctors, engineers and scholars.12 This emphasises
the Islamic State’s intentions of establishing a fully functioning state. Through means of global
communication the Islamic State has utilised technology providing them with a platform to
communicate extraterritorially to a limitless audience.13 This has given them the ability to reach
out to the vulnerable, those that identify with their cause, promising them adventure and
glorifying their atrocities using Islam as the justification for their indoctrination. The Islamic
State uses propaganda, a method combining recruitment, incitement and radicalisation.14 This
has proven to be a significant tool in their artillery. U.S. official’s report that as many as 16,000
foreign fighters from 90 countries have travelled to Syria, including more than 1,000 Europeans,
and more than 100 U.S. citizens.15 The devastatingly far reaching ability of propaganda was
exemplified on an alarming scale when it became apparent that three young girls aged 15 and
16 fled the UK to join the Islamic State in February 2015.16 In addition to this it, ‘Jihadi John’,
a Kuwait born British male, who is the alleged executioner of James Foley and other Western
hostages, was harassed by MI5 in 2010 to the point where he was close to taking his own life.17
This is a prime example of how Islamic State propaganda can reach out to radicalise vulnerable
individuals who are feeling supressed in the Western world.
Since 2013 the Islamic State has expanded its territorial control throughout Iraq and
Syria, causing an increasingly severe threat to the security of both countries. This has triggered
9 Ibid
10 UNAMI ‘Report on the Protection of Civilians in the Non-international Armed Conflict in Iraq 11 September
– 10 December 2014’, 23rd February 2015, Summary
11 ‘The Hirajah’ <https://www.islamicity.com/mosque/ihame/Sec2.htm> accessed 11th February 2015
12Harleen k. Gambhir, 'Dabiq: The Strategic Messaging ofthe Islamic State' (Understandingwar 2014)
<http://www.understandingwar.org/sites/default/files/Dabiq%20Backgrounder_Harleen%20Final.pdf> accessed
11 February 2014
13 United Nations Office on Drug and Crime, The Use of the Internet for terrorist purposes September 2012
(October 13,2014) http://www.unodc.org/documents/frontpage/Use_of_Internet_for_Terrorist_Purposes.pdf
14 Mohamed Aziz, ‘Counter Terrorism Measures Via the Internet Intermediaries: a First Amendment and
national security dilemma’ (January 2015) Available at http://works.bepress.com/mohamed_aziz/1
15 Congressional Research Service (CRS) report R43612, The ‘Islamic State” Crisis and US Policy’, by Kenneth
Katzman et al., Jan. 2015, www.crs.gov 1
16‘Syria girls: UK trio 'picked up by IS men' – smuggler’ (BBC, 25th February 2015)
http://www.bbc.co.uk/news/uk-31633002 accessed 26th February 2015
17 'Jihadi John': Mohammed Emwazi 'felt like dead man walking' (BBC, 1st March 2015) Accessed at:
http://www.bbc.co.uk/news/uk-31679804 Accessed 1st March 2015

8
alarming concern to spread through the International Community, resulting in coalition led
airstrikes and international Humanitarian aid to help both States. The Islamic State control most
areas of the northern Syrian province of Raqqah as well as reasserting themselves to the east
of Dayr az Wawr, a province rich in oil and gas resources bordering the Anbar region of Iraq.18
In addition to this the Islamic State continue to operate in Hasakah province, allowing them to
exploit a connection into Iraq’s Nineveh province which led to Abu Bakr al- Baghdadi’s self-
proclaimed “Caliphate” harbouring over the territory of two neighbour states. 19 16,000
airstrikes carried out over the six month coalition led campaign to defeat the Islamic State has
resulted in less than 1% of territory being regained; evidently proving an exclusive military
strategy will not suffice.20
The Severity of the Islamic State was highlighted on an international scale when they
entered Fallujah at the start of 2014, raising their black flag over the Governorate office and
seizing key administrative buildings. 21 They proceeded to advance along the Tigris and
Euphrates rivers resulting in full control being taken of Mosul, Iraq’s second largest city,
enabling them to seize US$450 million from the central bank.22 Iraqi and Syrian armed forces
have and continue to fight to defend the territories of both States, yet there structural demise
and lacklustre of manpower is evidence to suggest their inability to protect themselves. The
Islamic State’s relentlessness has been demonstrated on the world stage throughout the second
half of 2014 and the beginning of 2015, with videos depicting their barbaric Salafist acts of
punishment. Footage showing American journalists James Foley and Steven Sotloff being
beheaded as a direct attempt to stop American interference was circulated globally on social
media, sparking outrage throughout the International Community. Further footage has been
released showing the Jordanian pilot, Maaz al-Kassasbeh, being burnt alive whilst locked in a
cage, as well as the forced conversion to Islam of Kurdish men throughout Iraq. The severity
of the widespread and systematic violence has prompted Zeid Ra’ad Al Hussein, the High
Commissioner for Human Rights “to encourage Iraq to accede to the Rome Statute of the
Katzman et al., Jan. 2015, www.crs.gov, p5 para 3
19Ibid, p5 para 3
20 Sarah Lee Whiton, ‘Why the Fight Against ISIS is Failing’ (2015)
<http://www.hrw.org/news/2015/02/18/why-fight-against-isis-failing> accessed 19th February 2015
21 United Nations Assistance Mission forIraq ‘Report on the Protection of Civilians in the Non-international
Armed Conflict in Iraq 5 June – 5 July 2014’ (Human Rights office)
<http://www.ohchr.org/EN/Countries/MENARegion/Pages/UNAMIHRReports.aspx>
22 Jim Muir, ‘Iraq crisis forces old battle lines to be redrawn’(BBC, 26th June 2014)
http://www.bbc.co.uk/news/world-middle-east-28045054> accessed 11 February

9
International Criminal Court and as an immediate step, accept the exercise of the International
Criminal Court’s jurisdiction with respect to the situation facing the country pursuant to Article
12(3) of the Rome Statute”.23
1.1 The Rise of the Islamic State
The Islamic State’s radical ideology originated from the late Abu Musab al-Zarqawi, a
Jordanian who created Jama’at al-Tawhid w’al-Jihad in 2003. This then became Al-Qaeda in
Iraq after he joined his organisation with Osama Bin laden in 2004.24 In 2006 a U.S airstrike
killed Zarqawi; this served an emotional blow to the group but had little effect on the tempo
and brutality of their operations.25 On the 15th October 2006 an AQI spokesperson announced
the creation of the Islamic State in Iraq (ISI) headed by Omar al-Baghdadi as its emir.26 The
group level of power began to diminish as a result of a series of successful counterterror strikes,
two of which killed senior Al-Qaeda leader Abu Hamza al Muhajir and Abu Omar al-Baghdadi
in 2010.27 As a result of this Abu Bakr al-Baghdadi took control of ISI, which now consisted
mainly of Iraqi Sunni Muslims, the majority of which had served under Saddam Hussein.28
During 2011-2013 Baghdadi capitalised on the civil war breaking out in Syria, supporting
Syria’s opposition he created the Islamic State of Iraq and the Levant (ISIL/ISIS) which led to
tensions growing between Sunni extremists in the region and Al-Qaeda cutting ties with the
group due to the brutality of their tactics.29 ISIL rebuilt its capabilities and by the end of 2013
had turned its attention back to Iraq; exploiting the political downfall and the withdrawal of
American troops it began conducting dozens of deadly attacks in both Iraq and Syria. This led
to ISIS controlling between an estimated 40,000 sq km and 90,000 sq km of Iraq and Syria
with 8 million people living under their control.30 Fear of the Islamic State’s rapid development
23 United Nations Assistance Mission for Iraq (UNAMI), ‘Report on the Protection of Civilians in the Non-
international Armed Conflict in Iraq 11 September – 10 December 2015’, 23rd February 2015, accessed at:
http://www.ohchr.org/EN/Countries/MENARegion/Pages/UNAMIHRReports.aspx
24 Gerald Waltman, ‘Prosecuting ISIS’ (October 17, 2014). Available at SSRN:
http://ssrn.com/abstract=2537044 Accessed:17th Feburary 2015
25 M.J. Kirdar, 'Al Qaeda in Iraq' [2011] CSIS , 5 Available at:
http://csis.org/files/publication/110614_Kirdar_AlQaedaIraq_Web.pdf Accessed 12th December 2014
26 Encyclopaedia Britannica ‘Emir, Islamic Title’, <http://www.britannica.com/EBchecked/topic/185879/emir>
accessed 17 February 2015
27 M.J. Kirdar, 'Al Qaeda in Iraq' [2011] CSIS , 5
28 Gerald Waltman, ‘Prosecuting ISIS’ (October 17, 2014). Available at SSRN:
http://ssrn.com/abstract=2537044 Accessed 17th February 2015
29 'The Rise of the Islamic State' (bbcnews.com 2014) http://www.bbc.co.uk/news/world-middle-east-28116033
Accessed 17 February
30 'What is the Islamic State?' (BBC.com 2014) http://www.bbc.co.uk/news/world-middle-east-29052144
accessed 17 February

10
was confirmed on 15th January 2015 when a video was released by the group allegedly showing
the beheading of 21 Christian men who had been kidnapped in Libya. The men, who were
believed to have been beheaded by Libyan jihadists who pledge allegiance to IS, were beheaded
as a direct result of their faith.31 The severity of the Islamic State must not be underestimated,
it is important to recognise that they are situated at the top of the global jihad movement. By
placing them within this field of extremism more broadly, their true implications can be
understood.32 In order to do this one must legally analyse their actions which overlap, coincide
and breach numerous areas of International Criminal, Humanitarian and Human rights law.
1.2 The perpetration of gross human rights violations committed by the Islamic State
The civilian population of Iraq, Syria, and its neighbouring States are faced with the widespread
and systemic deprivation of the most undisputed fundamental right attributed to the human
population; the supreme right to life. The inherent right to life, non-derogable even in the time
of public emergency, is situated at the top of the hierarchy of rights available to a person.
Without the guarantee of this right, all other rights would be devoid of meaning.33 The gross
violations perpetrated by the Islamic State are continually breaching some the most integral
rights of society. Those caught in the cross fire of the Islamic State are subject to mass murder,
torture and slavery. All of which represent a direct attack on the very essence of human
personality and dignity and are diminishing the rights arising out of a human’s very existence.34
Article 6 of the United Nations Covenant on Civil and Political Rights (ICCPR) envisages both
a vertical and horizontal obligation on a state; the state vis-à-vis the individuals subject to the
states jurisdiction and the protection of individuals from other individuals35 (as seen in Yildirim
v Austria).36 The Human Rights Committee considers that States have a supreme duty to
prevent wars, acts of genocide and other acts of mass violence causing arbitrary loss of life.37
However in relation to the on-going armed conflict in Syria, President Bashar al-Assad and his
31 'Islamic State: Egyptian Christians held in Libya 'killed'' (bbcnews.com 2015)
<http://www.bbc.co.uk/news/world-31481797> accessed 17 February
32 Jessica Stern and J.M. Berger, ‘ISIS: The State of Terror’ (William Collins 2015) 199
33 Manfred Nowak, ‘U.N. Covenant on Civil and Political Rights: CCPR Commentary’ (2nd edn, N .P. Engel,
2005) 103
34 Ibid, 143
35 Sir Nigel Rodley, ‘International Human rights law’, in Malcom Evans (eds) International Law (OUP 2014)
793
36 Yildirim v Austria, UN Doc CEDAW/C/39/D/6/2005
37 Human Rights Committee, General Comment 6, Article 6 (Sixteenth session,1982), Compilation of General
Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc.
HRI/GEN/1/Rev.1 at 6 (1994)

11
armed forces have and continue to contribute heavily to the endlessly rising civilian death toll.38
The lack of political process in Syria has left civilians without any safeguard as to the protection
of their fundamental human rights which are being violated by the Islamic State.39
The civilians in Iraq are also suffering at the hands of the Iraqi Government through
their incapacity to protect their human population. The US led Iraq war resulted in the
instillation of the highly sectarian government headed by Nouri al-Maliki. This amplified the
countries division of Sunni/Shi’a Muslims and is one of the main contributing factors which
drove many Sunni Muslims into the ranks of the Islamic State40. As a result the State of Iraq is
unable to comply with the positive obligation set out in Article 6 ICCPR in which they must
protect life of those within their territory.
Women and children who have fallen under IS control have been stripped of several
rights that arise under ICCPR, namely articles 6,7 and 8. That being they are subject to torture
or cruel inhuman or degrading treatment or punishment as well as (sexual) slavery and
servitude. The UN commission of inquiry on the Syrian Arab Republic report horrific abuse of
Yezidi women and girls, many of which have been abducted in Iraq and transported to Syria to
be sold into sexual slavery.41 Slavery and torture prohibitions have been adopted in all general
catalogues of basic human rights and form an extreme expression of the power human beings
possess over other human beings.42 The interpretation of Article 7 ICCPRby the UN committee
of Human Rights has worked to unravel some of the controversial aspects underpinning the
definition of Torture. Under Article 1 of the 1984 UN Convention against Torture, in order for
the crime to be perpetrated it must have been carried out by State officials or included their
involvement.43 This provides us with a problem due to the fact that the acts in question are
being committed by non-State officials; the Islamic State. However, when interpreting Article,
38 ‘Over 100,000 men, women and children have been killed since the crackdown on peaceful protests first
began in Syria in March 2011. A further 2.3 million refugees have fled the war zone and around 250,000
civilians are living undersiege’ (Amnesty International, 9th April 2014) Accessed at:
http://www.amnesty.org.uk/campaign-lowdown-syria?gclid=CPC0rObbhMQCFe7MtAodD2cAcA Accessed
28th February 2015
39 UN General Assembly, ‘Report of the Independent InternationalCommission of Inquiry on the Syrian Arab
Republic’ (2015) UN Doc A/HRC/28/69
40 Sarah Lee Whitson,‘Why the Fight Against ISIS is Failing’ (Human Rights Watch,18th February 2015)
Accessed at:http://www.hrw.org/news/2015/02/18/why-fight-against-isis-failing Accessed 28th February 2015
41 UN General Assembly, ‘Report of the independent international commission of inquiry on the Syrian Arab
Republic, ‘Rule of Terror: Living under ISIS’ (2014) UN Doc
42 Manfred Nowak, ‘U.N. Covenant on Civil and Political Rights: CCPR Commentary’ (2nd edn, N .P. Engel,
2005) 143
43 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, Article 1

12
7 the UN Committee of Human Rights found this requirement to be irrelevant, stating: ‘It is
the duty of the State party to afford everyone protection through legislative and other measures
as may be necessary against the acts prohibited by article 7, whether inflicted by people acting
in their official capacity, outside their official capacity or in a private capacity’.44 As mentioned
above it is apparent that both Syria and Iraq do not possess an effective machinery of control
to prohibit crimes committed by the Islamic State. However this unrestrictive interpretation of
the definition of torture is still particularly important from an international criminal law and
human rights perspective. By widening the scope as to who can commit torture allows us to
elevate the acts committed by the Islamic State into acts that require international awareness
on a global scale. The philosophical conception underpinning international human rights is that
these rights enjoy protection because they are inherent in every human being.45 Crimes of this
nature pose significant relevance as the International Criminal Court (ICC) is the first
international instrument expressly to include various forms of sexual and gender-based
crimes.46 A strategic policy Fatou Bensouda, the Prosecutor of the ICC, is extremely committed
to developing.47 The Rome Statute recognises these crimes as those of the gravest nature,
falling within the scope of crimes under ICC jurisdiction; war crimes and crimes against
humanity. The Courts willingness to recognise such crimes was demonstrated in the case
against Bosco Ntaganda48 and Omar Hassan Ahmad Al Bashir.49 Allocating these crimes the
recognition they deserve provides an insight to the innovation of the International Criminal
Court and may enhance the Court’s willingness to hold Islamic State perpetrators accountable
for the crimes they continue to commit. This poses a predominant breakthrough in the
development of response to gender based violence from an international law perspective; in
effect the Rome Statute has codified many of women’s international human rights.50 By
recognising that sexual violence amounts to crimes of the gravest nature acknowledges that the
44 Human Rights Committee, General Comment 20, Article 7 (Forty-fourth session,1992), Compilation of
General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc.
HRI/GEN/1/Rev.1 at 30 (1994)
45 Paola Gaeta, ‘When is the Involvement of State Officials a Requirement for the Crime of Torture?’ JICJ
(2008) 6 (2): 183-193
46 Office of the Prosecutorof the International Criminal Court ‘Policy Paper on Sexual and Gender-Based
Crimes’ (June 2014) accessed:http://www.icc-cpi.int/iccdocs/otp/OTP-Policy-Paper-on-Sexual-and-Gender-
Based-Crimes--June-2014.pdf Accessed 2nd March 2015
47 ‘Fatou Bensouda on the International Criminal Court and Gender-Based Crimes: Prosecuting Sexual and
Gender-Based Violence: New Directions in International Criminal Justice’ (Council of Foreign Relations, 11th
December 2014) Accessed at:http://www.cfr.org/international-law/fatou-bensouda-international-criminal-court-
gender-based-crimes/p33991 accessed 2nd March 2015
48 Prosecutorv Bosco Ntaganda ICC-01/04-02/06
49 Prosecutorv Omar Hassan Ahmed Al Bashir ICC-02/05-01/09
50 Barbara Bedont, ‘Ending Impunity for Gender Crimes underthe International Criminal Court’ [1999] The
Brown Journal of World Affairs, Vol. VI, Issue 1: 65-85, 7

13
victims have suffered a special type of additional mental or physical harm. The Court is a
beacon of modernisation with sexual slavery receiving its first treaty recognition.51 Fatou
Bensouda and her office has committed to integrating a gender perspective and analysis into
all of aspects of its work including investigation through to prosecution paying particular
attention to a victim responsive approach. 52 If sufficient evidence is found to support
allegations of torture and (sexual) slavery, the Office of the Prosecutor could bring charges for
sexual and gender-based crimes as crimes per se as well as seeking to bring cumulative charges
against Islamic State, i.e. rape as torture, enhancing the severity of the charges imposed.53 As
a result of this we can see that international criminal law and international human rights are
inextricably linked; “attempts to seek and promote individual accountability for gross human
rights violations have had a direct impact on the elaboration of what constitutes international
crimes and demonstrates how a culture of impunity for acts of violence destroys societies”.54
The right to freedom of thought, conscience and religion is enshrined within the
ICCPR.55 It is the manipulation of this freedom which has led to the gross violations of the
human rights mentioned above. The Islamic States inexorable targeting of civilians stems from
the group’s systematic policy of purifying Islam. Their radical ideologies fuelling their
intentional gross human rights violations appear to be part of a deliberate policy aimed at
destroying, suppressing or expelling other religious/ethnic communities from areas under their
control, in particular, the Yezidi community.56 This has widened the lens of the category of
crimes committed by the Islamic State, thus supporting a prima facie case that they are guilty
of committing acts amounting to war crimes, crimes against humanity and genocide. When
adopting the ICCPR the International Community made explicit the primacy of the prohibition
on Genocide.57 The Rome Statute of the International Criminal Court defines Genocide as “any
of the following acts committed with intent to destroy, in whole or in part, a national, ethnical,
racial or religious group, as such: killing members of the group; causing serious bodily or
51 Ibid
52 Office of the prosecutorof the International Criminal Court ‘Policy Paper on Sexual and Gender-Based
Crimes’ (June 2014) accessed:http://www.icc-cpi.int/iccdocs/otp/OTP-Policy-Paper-on-Sexual-and-Gender-
Based-Crimes--June-2014.pdf
53 Ibid
54 Claire de Than and Edwin Shorts, ‘International Criminal law and Human Rights’ (1st edn, Sweet & Maxwell
2003) 346
55 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March
1976) 999 UNTS 171 (ICCPR) Article 18
56 UNAMI ‘Report on the Protection of Civilians in the Non-international Armed Conflict in Iraq 11 September
– 10 December 2015’, 23rd February 2015
57 Rhona K. M. Smith, ‘International Human Rights’ (5th edn, OUP 2012) 226

14
mental harm to members of the group; deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction in whole or in part; imposing measures
intended to prevent births within the group; forcibly transferring children of the group to
another group”. 58 Raphael Lemkin coined the word Genocide before the International
Community witnessed the atrocities during World War II. 59 He defined Genocide as “a
coordinated plan of different actions aimed at the destruction of essential foundations of the
life of national groups”.60 Genocide is widely perceived as being the most barbaric and
atrocious of all international humanitarian crimes due to emphasis placed on targeting of
individuals because they form part of a group. 61 The Islamic State has shown genocidal
tendencies throughout their expansion in 2014 as they have developed through Iraq and Syria,
specifically targeting communities and perpetrating mass murder due to their religious beliefs.
Further evidence of this was released in February 2015 when they released a video titled “a
message signed with blood to the nation of the cross” addressed to “people of the cross,
followers of the hostile Egyptian church”. The video shows the alleged beheading of 21 Coptic
Christians on a beach in Libya perpetrated by the Islamic State as a direct result of their faith.
The specific intent to destroy religious groups is the hallmark of genocide and gives the crime
its particular gravity,62 just as the specific intent to destroy religious groups is the hallmark of
the Islamic States conscious effort to eradicate the ethnic/religious minorities falling under their
control.
The Islamic State’s consistent and systematic deliberation of human rights violations,
specifically breaching the supreme right to life, spanning over crimes provoking classification
of war crimes, crimes against humanity and genocide continue to shock the conscience of the
International Community. Military intervention can only go so far in aiding the defeat of the
Islamic State, but eyes now turn to the role of the International Criminal Court whose mandate
is formed on the grounds of ending impunity for the perpetrators of the most serious crimes of
concern to the International Community. To analyse the Courts capability of holding said
58 Rome Statute of the International Criminal Court 1998, Article 6
59The UN refugee Agency (UNHCR), ‘Raphael Lemkin’ accessed at: http://www.unhcr.org/cgi-
bin/texis/vtx/search?page=search&docid=3b7255121c&query=genocide%20convention Accessed 28th February
2015
60 Raphael Lemkin, ‘Axis Rule in Occupied Europe’ (2nd edn, The Law Exchange 2008) 79
61 Claire de Than and Edwin Shorts,’ International Criminal law and Human Rights’ (1st edn, Sweet & Maxwell
2003) 66
62 Antonio Cassese,Guido Acquaviva,Mary Fan, and Alex Whiting, ‘International Criminal Law’ (1st edn, OUP
2011) 209

15
perpetrators accountable, it must first be established whether the crimes committed by the
Islamic State fall under the Court’s subject-matter jurisdiction.
Chapter 2: Crimes Committed by the Islamic State and ICC Jurisdiction

16
The International Criminal Court (ICC), governed by the Rome Statute 1998,63 is the first
permanent, treaty based, international criminal Court established to help end impunity for the
perpetrators of the most serious crimes of concern to the International Community. 64
The Office of the Prosecutor (OTP), headed by Fatou Bensouda, is responsible for determining
whether a situation meets the legal criteria set out in the Rome Statue allowing for further
investigation by the Court. As it stands, Abu Bakr al-Baghdadi and countless Islamic State
militants are acting with extreme impunity whilst administering crimes of the most heinous
nature.
Fatou Bensouda, in a question and answer session at the Council of Foreign Relations
in New York, stated that she and her office have been looking very closely at the ongoing
situation involving ISIS in Iraq and Syria. She explained that her Office has been gathering
information on the ongoing situation stating “we will get the information, we will analyse, we'll
decide on what steps to take”.65 This information suggests that the Office is willing to open a
preliminary investigation into the crimes committed by the Islamic State. However, the
willingness of the OTP to open an investigation is but one of a number of hurdles the
International Criminal Court is faced with before it can proceed with opening up an
investigation into the Islamic State.
The ICC, set up to hold these perpetrators accountable for crimes under its jurisdiction
is faced with numerous problems. In order to identify and analyse these problems, I am going
to discuss the issues which arise during the phase in which the OTP has to distinguish the
situations that warrant investigations, from those that do not. To shed light on these issues my
arguments will relate to how, if at all, the ICC can prosecute the criminals most accountable
for the crimes committed by the Islamic State.
In phase one the office conducts an official assessment of all information on alleged
crimes received under Article 15 of the Rome Statute.66 In order to filter out information on
crimes that are outside the Court’s Jurisdiction Article 5 of the Rome Statute67 limits the
63 Rome Statue of the International Criminal Court 1998
64‘About the Court’, http://www.icc-
cpi.int/en_menus/icc/about%20the%20court/Pages/about%20the%20court.aspx> accessed 15th January
65 ‘Fatou Bensouda on the International Criminal Court and Gender-Based Crimes’, (Council on foreign
relations, December 11th 2014) http://www.cfr.org/international-law/fatou-bensouda-international-criminal-
court-gender-based-crimes/p33991 accessed February 2015
66 Rome statute ofthe International Criminal Court 1998, Article 15
67 Ibid, Article 5

17
Court’s jurisdiction to the following crimes; genocide,68 crimes against humanity,69 war
crimes70 and the crime of aggression. In order to identify whether the Islamic State can be held
accountable for any of the above I am going to look at the following crimes they have
committed: mass murder, rape and the passing of sentences and the carrying out of execution
without previous judgement pronounced by a regularly constituted Court. If these crimes can
be classified for the purposes of the ICC then the OTP will be able to proceed to phase two of
the preliminary investigations.
2.1 Crimes against Humanity
In order to establish whether the Islamic State are guilty of committing crimes against humanity,
a legal assessment will have to be made in order to identify the contextual elements set out in
Article 7 of the Rome Statute 1998.71 These include: (i) the act must be committed as part of a
widespread or systematic attack, (ii) Against a civilian population, (iii) pursuant to or in
furtherance of a State or organisational policy, (iv) A nexus between the individual act and the
attack; and (v) the accused’s knowledge of the attack.72
Attack against Civilian Population
There are reasonable grounds to believe that the Islamic State has and continue to launch
attacks targeting the Civilian population. Evidence shows that these acts have been committed
throughout different parts of Iraq, including; the Anbar governorate, Ninawa, Salah id-Din,
kirkuk and Diyala governorates.73 In these areas civilians have been the primary objects of
attack in which the Islamic State have systematically targeted civilians and civilian
infrastructure with the aim of killing as many civilians as possible.74 ISIS has specifically
targeted community, political and religious leaders, as well as government employees,
education professionals and health workers. Further to this they have targeted markets,
restaurants, shops, cafes, places of worship, schools, playgrounds and other public spaces
where civilians gather in large groups.75
68 Ibid, Article 6
69 Ibid, Article 7
70 Ibid, Article 8
71 Ibid, Article 7
72 International Criminal Court, ‘Situation in Nigeria: Article 5 Report’ (OTP, 2013)
73 UNAMI ‘Report on the Protection of Civilians in the Non-international Armed Conflict in Iraq 5 June – 5
July 2014’, 18th July 2014, Summary para 2
74 Ibid, page 9 para 4
75 Ibid, Page 9 Para 4

18
Widespread and Systematic
The Islamic State’s on going attack on the civilian population is widespread in terms of civilian
deaths/casualties as well as being widespread in geographical nature. The United Nations
Assistance Mission in Iraq (UNAMI) report that 24,015 civilians were killed or injured in Iraq
during the first 8 months of 2014.76 Between the 1st June and the 31st August, the period in
which ISIS took control of Mosul, over 11,000 were wounded or injured with UNAMI warning
this number could be much higher.77 The geographical extent to which ISIS have administered
the killing of civilians has rapidly grown since the beginning of 2014 with reported attacks
occurring in the cities of Mosul, Tikrit, Tal Afar, Beji, Quayyara, Sinjar, Suleiman Bek, Rashad,
Hawjah, Riyadh, Fallujah and Saqlawwiyah.78
State or Organisational Policy
The attacks against the civilian population stem from the radical ideology that the Islamic State
adhere to in which they have an advanced military hierarchical system set up to pursue their
main objective; establishing a legitimate caliphate. The armed group target anyone who refuses
to convert to Islam, including Christians, Yezidi’s, Shia Muslims as well as the International
Community and Iraqi armed forces.
Once can reasonably assert that ISIS are under responsible command. The armed group
are made up of an extremely organised hierarchy with Abu Bakr al-Baghdadi, their chief in
command sitting at the top. A Cabinet of advisers aid Baghdadi in advising two deputies who
in turn command 12 governors of Iraq and Syria. The command structure is made up of a Shura
council (conducts military and religious affairs), a financial council (weapon and oil sales), a
military council (defence of the Islamic State), a leadership council (drafting key laws and
policies), a legal council (makes decisions on executions and recruitment), a fighters assistance
council (foreign fighter aid), a security council (internal policing) and an intelligence council
(information on ISIS enemies).79
76 UNAMI ‘Report on the Protection of Civilians in the Non-international Armed Conflict in Iraq 6 July – 10
September 2014’,) 2nd October 2014, Summary para 3
77 Ibid, Summary para 4
78 UNAMI ‘Report on the Protection of Civilians in the Non-international Armed Conflict in Iraq 5 June – 5
July 2014’, 18th July 2014, Summary para 2
79 Nick Thompson and Atika Shubet,‘The anatomy of ISIS: How the 'Islamic State' is run, from oil to
beheadings, (January 14th 2015) http://edition.cnn.com/2014/09/18/world/meast/isis-syria-iraq-hierarchy/
accessed 28th January 2015

19
80
This is sufficient evidence to suggest that the Islamic State can be classified as an
organisation. There command structure shows that they possess sufficient internal organisation
working in a ranked formation according to status. This, combined with the vastness of their
followers and ability to conduct military operations shows they have the capability to commit
crimes against humanity.
ISIS’s consistent pattern of offensive attacks and territorial gain evidentially proves
they contain the means to carry out widespread or systematic attacks. Taking over and
controlling a land mass larger than Britain exemplifies their ability to do this.81 Further proof
stems from their capability to engage in criminal acts in Syria and Iraq simultaneously.
On the 29th August ISIS shelled al-Askari area in Tuz Khurmatu killing five civilians and
wounding another 25, including 5 women and 6 children.82 In addition to this they conducted
an attack involving five explosive ridden Humvee vehicles simultaneously detonating, as well
as a boat that was rigged with explosives and a bulldozer in order to force entry to Duloeliyah
town in Salah al-Din.83 The town was then attacked for several hours resulting in 20 civilian
deaths and a further 120 casualties. ISIS use methods such as these, which pose operational
80 ‘Terrorism Research and Analysis Consortium’ Accessed at:http://www.trackingterrorism.org/what-to-
watch/featured-project-islamic-state-isis-all-known-brigades Accessed:28th January 2015
Katzman et al., Jan. 2015, www.crs.gov
September 2014’ 2nd October 2014, page 9 para 3

20
organisation and tactical administration, thus demonstrating their capability of carrying out
systematic attacks.
ISIS policy to target civilians can be seen through their direct threat to ethnic and
religious communities. On the 16 July 2014 ISIS distributed leaflets throughout the city of
Mosul ordering Christians to conform to Islamic State beliefs, pay Jizyah,84 leave or face
death.85 UNAMI report that on the 3rd August ISIL chased ten Yezidi families attempting to
escape resulting in the male members being killed and the women and children being abducted.
On the same day ISIS were reported to have been systematically hunting down and killing
Yezidi families who remained in their homes. The policy to attack civilians has been made
evidently clear in a recent audio recording released by the Islamic state containing Abu Bakr
al-Baghdadi calling all followers to “[e]rupt volcanoes of jihad everywhere”.86
In light of the information discussed, there are reasonable grounds to believe that the
contextual elements set out in Article 7 of the Rome Statute have been met by the Islamic State
in relation to the crimes they have committed throughout 2014.
Mass Murder
Actus Reus
The perpetrator must have killed one or more persons and that conduct was committed as part
of a widespread or systematic attack directed against a civilian population.87
Amnesty International (AI) has reported that IS has carried out ethnic cleansing on a
historic scale in Northern Iraq, systematically targeting non-Arab and non-Sunni Muslim
communities resulting in the killing of hundreds, possibly thousands of civilians since the 10th
June.88
84 Encyclopaedia Britannica, ‘Jizya’ http://www.britannica.com/EBchecked/topic/304125/ jizya accessed 28th
January 2015 ‘jizya, also spelled jizyah, Arabic jizyah , head or poll tax that early Islamic rulers demanded
from their non-Muslim subjects.
September 2014’ 2nd October 2014 page 11 para 8
86 Lewis Smith, ‘Isis leader Abu Bakr al-Baghdadi calls on followers to 'erupt volcanoes of jihad everywhere' in
newly released recording’ (Independent,13th November 2014)
http://www.independent.co.uk/news/world/middle-east/isis-leader-abu-bakr-albaghdadi-calls-on-followers-to-
erupt-volcanoes-of-jihad-everywhere-in-newly-released-recording-9859873.html accessed 28/01/2015
87 Elements of Crimes, Rome Statute 1998, Article 7
88 Amnesty International, ‘Ethnic Cleansing On a Historic Scale: Islamic State’s Systematic Targeting of
Minorities in Northern Iraq’, 2nd September 2014, Summary para 1

21
For example, on the 3rd August 2014 up to 300 Yezidis were fleeing towards Mount
Sinjar in order to escape Islamic State Militants. AI reports that they became trapped in the
village of Qiniyeh, it was here IS managed to catch up with them. After separating the men
from the women and young children, the men were driven to unknown locations in which up
to 90 were shot dead.89 On the same day another 50-60 men, fleeing towards Mount Sinjar
were shot dead by IS at a farm in Jdali.90
AI reports that on the 15th August 2014 IS killed at least 100 men and boys living in the
village of Kocho. Islamic State militants assembled the village residents at the secondary
school, separated the men and boys from women and the younger children. The men were
bundled into trucks, driven away to nearby locations and shot.91
UNAMI have reported that on the 23rd July ISIL claimed responsibility for a VBIED92
attack that killing 28 civilians, including five policemen and wounding at least 50 others at a
checkpoint north of Kadhimya in a predominantly Shi’a area.93
ISIS has consistently proceeded to destroy and damage numerous places of religious
and cultural significance. For example, on the 25th July several Shi’a mosques in Kirkuk were
targeted, one VBIED was detonated after Friday prayers killing four civilians and injuring 20
others.94
Based on the crimes documented by UNAMI and Amnesty International there are
reasonable grounds to believe that the Islamic State are guilty of committing murder amounting
to crimes against humanity pursuant to article 7(1)(a).
2.2 Acts Constituting War Crimes
Contextual Elements
92 ‘Vehicle born improvised explosive device’
September 2014’, 2nd October 2014, page 8 para 5
94 Ibid Page 9 para 7

22
Article 8 of the Rome Statute requires the existence of an armed conflict. The International
Criminal Tribunal for Yugoslavia stated that “an armed conflict exists whenever there is a
resort to armed force between States or protracted armed violence between governmental
authorities and organised armed groups or between such groups within a State”.95 The Pre-
Trial Chamber of the ICC for the first time considered the meaning of armed conflict in the
ICC Rome Statute in the 2007 case of Prosecutor v Thomas Lubanga Dyilo.96 The Chamber
focused on the intensity, organisation and length of the conflict linking organisation and
protraction with regards to the armed group’s ability to plan and carry out military operations
for a prolonged period of time.97
There is currently a conflict occurring in Iraq between the Islamic State, the Iraqi
Government and the ISF (Iraqi army and Police)98 and other armed and terror groups, as well
as a conflict occurring between the Islamic State, the Syrian Government and other armed
groups in Syria. This begs the question as to whether the conflict is international or non-
international. A coalition led intervention in the form of airstrikes and humanitarian aid suggest
that the conflict has gained international status. As does the fact that the Islamic State’s
Caliphate spreads significantly over the boarders of two harbouring countries. However,
Common Article 2 of the Geneva Conventions of 1949 states "In addition to the provisions
which shall be implemented in peacetime, the present Convention shall apply to all cases of
declared war or of any other armed conflict which may arise between two or more of the High
Contracting Parties, even if the state of war is not recognized by one of them. The Convention
shall also apply to all cases of partial or total occupation of the territory of a High Contracting
Party, even if the said occupation meets with no armed resistance”.99 The ongoing conflict
95 Prosecutor v Dusko Tadic (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) Case
No. ICTY -94-1-AR72, Appeals Chamber, 2 October 1995, para 70
96 Prosecutor v Thomas Lubanga Dyilo [2007] ICC-01/04-01/06
97 International Law Association Committee on the Use of Force, 'Initial Report on the Meaning of Armed
Conflict' [2008] 16
98 Iraqi Special Forces unit were created by Coalition forces after the 2003 invasion, directed by the Iraqi
Counter-Terrorist Bureau, consisting ofthe Iraqi Counter-Terrorist Command, which has two brigades
subordinate to it. The Counter-Terrorist Bureau is funded by the Ministry of Defence (Iraq).
99 Geneva Convention (I) for the Amelioration of the Condition of Wounded and Sick in Armed Forces in the
Field, opened for signature 12 August 1949, (entered into force on 21 October 1950) 75 UNTS 31 (“Geneva
Convention 1”); Geneva Convention (II) for the Amelioration of the Condition of Wounded,Sick and
Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, (entered into force 21
October 1950) 75 UNTS 85 (“Geneva Convention II”); Geneva Convention(III) Relative to the Treatment of
Prisoners of War, opened for signature 12 August 1949, (entered into force on 21 October 1950) 75 UNTS 135
(“Geneva Convention III”); Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of
War, opened for signature 12 August 1949, (entered into force on 21 October 1950) 75 UNTS 248 (“Geneva
Convention IV”)

23
involving ISIS would not be legally recognised as an international armed conflict due to the
fact that one State hasn’t taken up arms against another State. In relation to the intervention
from other States, as they are intervening on behalf of the Iraqi government this does not qualify
the armed conflict as being international; “Even when a State sends armed forces to other States
at its request to fight insurgents, this does not give the conflict an international character”.100
It is inconceivable to claim that ISIS is involved in an international armed conflict with
Syria and Iraq due to the lack of intrastate conflict. Rather, the situation should be viewed as
two separate non-international armed conflicts occurring in separate States. Common Article
3 of the Geneva Conventions 1949 is of fundamental importance as it applies to armed conflicts
not of an international character;101 however it only sets out a rudimentary framework of
minimum standards relating to the protection of civilians. 102 Both the International Criminal
Court and Common Article 3 do not provide a definition of a non-international armed conflict.
Case law offers an insight into the elements required for an armed conflict not of an
international nature; “whenever there is protracted armed violence between governmental
authorities and organised armed groups or between such groups within a State”.103 Common
Article 3 specifically states that the armed conflict must take place within a State. This
definition is relatively straightforward with relation to more common place NIACs. However,
in relation to ISIS the definition becomes more ambiguous. The conflict occurs in the territory
of two States with ongoing conflict occurring at the same time. From an International
humanitarian point of view it may make sense to separate the conflicts with relevance to the
State in which the armed conflict is taking place, that being an NIAC in Syria and an NIAC in
Iraq.
In order to establish a non-international armed conflict in which common Article 3 refers to,
the conflict must be distinguished from internal disturbances and tensions. This is essential as
the Rome Statute explicitly states that acts committed during internal disturbances and tensions
cannot amount to war crimes and therefore do not fall under ICC jurisdiction.104 In order to
100 Anthony Aust,'the law of armed conflict', handbookof international law (2nd edn, Cambridge University
press,2010)
101 International Committee of the Red Cross (ICRC), 'How is the Term "Armed Conflict" Defined' (2008)
ICRC, 1 Available at: https://www.icrc.org/eng/assets/files/other/opinion-paper-armed-conflict.pdf Accessed
8th January 2015
102 Jean-Marie Henckaerts, 'Study on customary International humanitarian law: A contribution to the
understanding and respect for the rule of law in armed conflict' Volume 87 Number 857 March 2005 p178
103Prosecutorv Dusko Tadic (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) Case
No. ICTY -94-1-AR72, Appeals Chamber, 2 October 1995, para 70
104 Rome statute ofthe International Criminal Court1998, Article 8(2)(d)

24
distinguish the armed conflict from an internal disturbance the nature of violence, the intensity
and the organisation and coordination of the attacks must be taken into consideration.105 A
minimum level of intensity must be reached and the parties involved must show a minimum
level of organisation.106 Due to the wide-scale violence being perpetrated by the Islamic State
in both Iraq and Syria, the inability to control the insurgents by State governments and armed
forces, and the intervention of western countries, it is evidently clear a minimal level of
intensity has been reached. In relation to the Islamic State’s organisation, a U.S. Central
Intelligence Agency (CIA) spokesperson estimated in September 2014 that the Islamic State
could muster 20,000 to 31,500 individuals.107 However reports believe this number to be highly
underestimated. Further to this, IS hierarchical military command structure which I have
previously discussed suggests that they have the capacity to sustain military operations. They
are able to coordinate attacks in two States simultaneously, boasting a comprehensive
organisational structure.
I pose the view that the ongoing conflict between the Islamic State, ISF and other armed
forces in Iraq, and the Islamic State, Syrian government and other armed groups in Syria can
be classified as a non-international armed conflict occurring in both States.
Article 8(2(c) of the Rome Statue 1998108 asserts jurisdiction over violations of Common
Article 3 committed during NIACs.109 Other serious violation of the laws and customs of war
amounting to war crimes come under article (8(2)(e).110
The passing of sentences and the carrying out of executions pursuant to Article 8(2)(c)(iv)
Actus Reus
105 Ademola Abass,'International Humanitarian Law’, International law: text, Cases,and Materials’ (2nd edn,
Oxford University Press, 2014) p422, See also: Juan Carlos Abella v Argentina OEA/Ser.L/V/II.98
106 Heike Spieker, 'The International Criminal Court and Non-International Armed Conflicts' 13 LJIL 395, 414
(2000), 408
107 Congressional Research Service (CRS) report R43612, The ‘Islamic State” Crisis and US Policy’, by
Kenneth Katzman et al., Jan. 2015, www.crs.gov
108 Elements of Crimes, Rome statute 1998 s article 8(2)(c), In the case of armed conflict not of an international
character, serious violations of article 3 common to the Geneva Conventions of 12 August 1949, namely, any of
the following acts committed against persons taking no active part in hostilities, including members of armed
forces who have laid down their arms and those placed hors de combat by sickness,wounds,detention or any
other cause
109 Lindsay Moir, ‘Violations of Common Article 3 of the Geneva Conventions’in Jose Doria, Hans-Peter
Gasser and M.Cherif Bassiouni (eds) ‘The legal Regime of the International Criminal Court’ (Martinus Nihhoff,
Leiden 2009)
110 Elements of Crimes, Rome statute 1998, article 8(2)(c)(e)

25
Article 8(2)(c)(iv) requires the perpetrator to pass or carry out an execution on one or more
persons who take no active part in the hostilities, including members of armed forces who have
laid down their arms and those placed hors de combat. The execution must be carried out
without previous judgement from a regularly constituted Court, affording all judicial
guarantees recognised as indispensable.111 As Common Article 3 and Article 8(2)(c)(iv) fail to
specify any judicial guarantees, it is necessary to have reference to Article 6(2) of Additional
Protocol II.
The Islamic State has carried out countless executions throughout Syria and Iraq during
the course of 2014. The independent International Commission of Inquiry on the Syrian Arab
Republic reports that executions are common place, bodies are displayed publicly on crucifixes
for days serving as a warning to local residents of ISIS controlled areas.112 Men, women and
children as young as fifteen are reported to have been crucified, stoned to death, beheaded and
shot throughout 2014 as ISIS has expanded its control. The commission reported that two men
were beheaded in Al-Bza’a in front of several hundred people; one of the executions was
improperly carried out due to an insufficiently sharp knife.113
Detainees have been killed in custody. Persons interviewed have stated that detainees
in ISIS prisons have no access to lawyers and are afforded none of the due process rights
inherent in a fair trial.114 The majority of the executions are carried out in public, thus meeting
the requirements set out in Article 8(2)(c)(iv).115
Further to this, Amnesty International report on the 7th September 2014 that ISIS
executed 40 people in Mosul after being sentenced to death by a self-appointed court. Two
days before on the 5th of September 2014 three women were executed in Mosul, condemned to
death by a self-appointed court for allegedly refusing to treat Islamic State militants.116
111 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims
of Non-International Armed Conflicts (Protocol II), 8 June 1977, Article 6(2) ‘No sentence shall be passed and
no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced
by a court offering the essentialguarantees of independence and impartiality.’
112 UNGA report of the independent international commission of inquiry on the Syrian Arab Republic, ‘Rule of
Terror: Living under ISIS’ 14th November 2014, para 7, 2
113 Ibid para 7, 6
114 Ibid, para 2, 7
115 International Criminal Court, ‘Situation in Mali: Article 53(1) Report’ (OTP 16th January 2013)
September’, 2nd October 2014 page 6, See also: International Criminal Court, ‘Situation in Mali: Article 53(1)
Report’ (OTP 16th January 2013) ‘The ICC found reasonable grounds to believe that war crimes of sentencing

26
This information provides reasonable grounds to believe that war crimes pursuant to
Article (8)(2)(c)(iv) of passing sentences and carrying out executions without due process
affording all judicial guarantees have been committed by the Islamic State in Syria and Iraq.
Rape – Article 8(2)(e)(vi)
Amnesty International reports that hundreds, possibly thousands, of women and girls are held
by the Islamic State in areas of Iraq and Syria under their control.117 An Amnesty International
researcher in Iraq interviewed 42 women and girls who managed to escape IS captivity. The
report gives harrowing accounts of how girls as young as 15 had been abducted and raped by
Islamic State militants.
A 16 year old girl was abducted from her village south of Mount Sinjar before being sold to a
man twice her age who then raped her.118
The report states that many young girls and women were abducted since the 3rd August
2014 as IS seized towns and villages in the Sinjar region. Victims told the researcher men
would come several times to take away captured girls, those that resisted would be beaten with
electric cables.119 Evidence that Islamic State militants are guilty of committing rape on
countless non-Muslim captives such as Yezidi women and girls has been produced via
documents printed by ISIS’s publishing house. These documents seek to legitimise their
criminal practices according to their own interpretation of Islam:
"It is permissible to have sexual intercourse with the female captive. Allah the almighty said:
'[Successful are the believers] whoguard their chastity, except from their wivesor (the captives
and slaves) that their right hands possess, for then they are free from blame [Koran 23:5-6]'.120
or execution without due process were committed by armed groups in northern Mali.’ Similar conclusions can
be drawn with regards to the Islamic State
117 Amnesty International, 'Escape From Hell: Torture and Sexual Slavery in Is lamic State Captivity in Iraq' 29th
December 2014, 4
118 Ibid, 5
119 Ibid, 6
120 ‘Islamic State (ISIS) Releases Pamphlet On Female Slaves’ Available at: http://www.,e,rijttm.org/islamic-
state-isis-releases-pamphlet-on-female-slaves.html (Memri, 4th December 2014) accessed 3rd February 2015

27
The information available provides reasonable grounds to believe that the Islamic State have
committed war crimes, in relation to rape pursuant to Article 8(2)(e)(vi).

28
Chapter 3: The Islamic State’s Direct and Public Incitement to Commit Genocide
On December 9th 1948 the United Nations General Assembly adopted the Convention on the
Prevention and Punishment of the Crime of Genocide, criminalising genocide under
international law.121 The convention requires international cooperation in order “to liberate
mankind from such an odious scourge”.122 The Rome Statute of the International Criminal
Court embodies the same genocidal elements set out in the Genocide Convention. However,
unlike the Genocide Convention and the ad hoc Tribunals for Rwanda and Yugoslavia, the
Rome Statute does not treat direct and public incitement to commit genocide as an independent
crime falling under its jurisdiction, thus leading to controversial dispute. Article 3 of the
Convention on the Prevention and Punishment of the Crime of Genocide declares that direct
and public incitement to commit genocide is a punishable crime warranting individual criminal
responsibility.123 Granting this crime its independency provides prosecutors with a number of
advantages. The most significant being when proving the defendant has committed incitement
to commit genocide it is unnecessary to prove a causal link between the incitement and the
subsequent act of genocide.124 The crime is inchoate, all that is required to establish that direct
and public incitement to commit genocide took place is that it was intentional and was
committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious
group (the definitive elements of genocide).125 Criminalising incitement on an international
level has been historically justified by the extremely severe nature of genocide as a unique
crime of historical proportions.126 Further to this the status of incitement allows prosecutors to
charge an individual with incitement to commit genocide before the incited genocide has been
committed, thus giving meaning to the enigmatic word ‘prevention’ that appears in both the
title and article 1 of the Genocide Convention.127 This poses an obvious advantage in that
121 Convention on the Prevention and Punishment of the Crime of Genocide 1948, Article 2
122 Ibid, Preamble
123 Ibid, Article 3
124 Prosecutor v. Nahimana, Case No. ICTR 99-52-T, Judgment, 1015 (Trial Chamber Dec.
3, 2003) (“The Chamber notes that this causal relationship is not requisite to a finding of incitement.
It is the potential of the communication to cause genocide that makes it incitement.”)
125 William A Schabas, ‘Genocide in International law: The Crime of Crimes’ (2nd edn, Cambridge University
Press 2009) 308
126 Jens David Ohlin, ‘The UN Genocide Convention: A Commentary’ (Paola Gaeta Ed, OUP 2009) 207
127 William A Schabas,‘Genocide in International law: The Crime of Crimes’ (2nd edn, Cambridge University
Press 2009) 308

29
restricting criminal liability to complete offences would only hinder legal proceedings and have
an adverse effect, one which early intervention would help circumnavigate.128
The positive advantages stemming from the codification of incitement to commit
genocide as a crime in its own right was exemplified by the International Criminal Tribunal for
Rwanda in the case of Prosecutor v Nahimana.129 The two defendants were held responsible
for incitement to commit genocide through the use of mass media, in this case using broadcasts
through a radio station. In this situation, if the prosecutor had had to prove a causal link between
the incitement and particular acts of genocide, obtaining convictions may not have been
possible. If this was the case there would have been a need to establish that the perpetrator of
genocide had actually listened to the specific incitement, proved the language amounted to
incitement, and that incitement provoked him to commit the acts in question.130 Codifying
incitement as a separate crime allows the prosecutor to administer individual criminal
responsibility to perpetrators who would otherwise be acting with impunity. However, it is
important to note that the direct and public incitement to commit genocide as a crime fits in to
a very case specific situation, one that arose ideally for the situations presenting themselves to
the ad hoc tribunals for Rwanda and Yugoslavia. The rapid advancement of technology,
specifically mass media (providing a platform for global communication) may render the
independent crime of incitement to commit genocide impracticable in some circumstances.
During the process of criminalising direct and public incitement to commit genocide, the
United States opposed such a provision on the grounds that incitement was too remote from
the real crime of genocide and that it might endanger the right to free speech and freedom of
press.131 As we can see now in the context of the modern day, America’s reservations have
come to light as the crime of incitement has the potential to butt up against a person’s right to
freedom of expression.132 However, it is arguable that the act of incitement is as such
sufficiently dangerous and blameworthy to be punished as genocide is.133 As a result of this the
128 Jens David Ohlin, ‘Attempt, Conspiracy and Incitement to Commit Genocide’ Cornell Law Faculty
Publications, Paper 24 (2009)
http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1023&context=facpub Accessed 10th March 2015
129 Prosecutor v Nahimana (Judgement) ICTR 99-52-A (28 November 2007)
130 Thomas E. Davies, ‘How the Rome Statute Weakens the International Prohibition on Incitement to
Genocide’ (2009) 1(1) Harvard Human Rights Journal http://harvardhrj.com/2009/09/how-the-rome-statute-
weakens-the-international-prohibition-on-incitement-to-genocide/ Accessed 10th March 2015
131 William A Schabas,‘Genocide in International law: The Crime of Crimes’ (2nd edn, Cambridge University
Press 2009) 323
132 Ibid, 319
133 Otto Triffterer, ‘Commentary on the Rome Statute of the International Criminal Court (2nd edn, Hart
Publishing 2008) 34

30
perpetrator guilty of incitement to commit genocide should be held accountable under
international criminal law, this has generated remarkably little controversy or dispute.134
As I have mentioned above, the International Community have posed that some of the
actions committed by the Islamic State may amount to crimes of genocide and should be held
accountable for in the International Criminal Court. Now I will turn my discussion to how, if
at all, significant it would be if the Rome Statute identified the direct and public incitement to
commit genocide as an independent crime of its own right. Or on the other end of the spectrum,
if its placement in Article 25(3)(e) as a mode of responsibility will prove to be more effective
in aiding the International Criminal Court in achieving its objectives.
3.1 Islamic State Practice and the Direct and Public Incitement to Commit Genocide
Definitive Elements
Before analysing the actions of the Islamic State and the interpretational issues surrounding
article 25(3)(e), it is important to identify the specific definitive elements underpinning the
crime of incitement to commit genocide. To do this we must review the legal framework
provided by the ICTR.
In order for a person to be prosecuted for incitement to commit genocide, the incitement
must be direct, public and done so with the intent to destroy, in whole or in part, a national,
ethnical, racial or religious group. The ICTR defined the actus reus of this offence in the
Akayesu case:135
“Directly provoking the perpetrator(s) to commit genocide, whether through speeches,
shouting or threats uttered in public places at public gatherings, or through the sale or
dissemination, offer for sale or display of written material or printed matter in public places or
at public gatherings, or through the public display of placards or posters, or through any other
means of audio-visual communication.”136
The First definitive element requires the incitement to be ‘direct’:
134Jens David Ohlin, , ‘Incitement and Conspiracy to Commit Genocide’ in Paola Gaeta (eds), The UN
Genocide Convention: A Commentary (OUP 2009) 207
135 Prosecutor v Jean-Paul Akayesu (1998) Case No. ICTR-96-4-T
136 Ibid, note 1, para 559

31
The ICTR approved and adopted this definition in the most recent Muvunyi case.137
Working from this definition it would appear that the direct element of the actus reus requires
a causal link between the incitement and the perpetrator of the criminal acts reasoning behind
committing the crime. In order for the incitement to be direct, another person must be
concretely urged or specifically provoked to take criminal action.138 When establishing the
direct element, the court must consider the incitement in the “light of its cultural and linguistic
content”, thus paying specific attention to the culture in which the incitement was aimed.139
This poses significant importance in relation to the Islamic State whose linguistic content is
laced with religious doctrine. Therefore in order to construe the incitement as direct, the main
focus will lie with whether the persons for whom the incitement was intended understood the
implications contained within.140
The second definitive element requires the incitement to be public; the ICTR construed this to
mean:
“Public incitement is characterised by a call for criminal action to a number of individuals in a
public place or to members of the general public at large by such means as mass media.”141
The first tier of this definition is self-explanatory. In this circumstance the criminal action in
which the definition refers to is the act of genocide.
The second part of the definition provided by the ICTR is particularly relevant to the
on-going conflict regarding the Islamic State. Private incitement falls short of this offence and
is of no concern to this discussion. Rather it is the manipulation of the mass media, used by the
Islamic State to enhance its ideologies to Muslims worldwide, which has the parameters to
meet the requirements of this offence. The International Law Commission in its discussions on
the 1996 code of crimes against the Peace and Security of Mankind argued that incitement is
public if targeted at an undefined number of individuals,142 thus diminishing a requirement for
the incitement to be aimed at a specific number. If there was a requirement for a specific
137 Prosecutor v Tharcisse Muvyuni(2006) Case No. ICTR-00-55 para 500 of the judgement
Publishing 2008) 32
139 Angelique Leondis & Ying-Lee Lai, ‘Humanitarian Law Perspectives , Topic 5 : The International Criminal
Tribunal for Rwanda’ (2008) http://www.redcross.org.au/files/2008_ICT_for_Rwanda_Research_Paper.pdf
Accessed 12th March 2015
140 Ellen S. Podgor and Rodger S. Clark, ‘International Criminal Law: Cases and Materials’ (3rd edn, LexisNexis
2010) 726
141 Prosecutor v Jean-Paul Akayesu (1998) para 556
142 (1996) II Yearbook of the International Law Commission 22, para 16

32
number, the prosecutor would then have to establish that exact amount of people heard,
understood and acted because of the incitement. This was confirmed in Muvunyi; however it
was held that if that was the case it would act as an indicative factor in establishing whether
the incitement was public.143 The public element of the definition is particularly significant to
the crime as it creates/fuels the risk of an uncontrollable mass crime being committed, one of
which the perpetrator has no control over its progress.144
The mens rea of the offence requires the perpetrator of the incitement to not only
possess the intent to provoke another to commit genocide, but they themselves must also
possess the same genocidal intent.145 In order to hold a person responsible for a crime falling
under the jurisdiction of the ICC it must be established that the mental elements of the offence
were committed with the specific intent and knowledge.146 A person has the required intent not
only when he means to engage in the conduct in question, but when he is aware of the
consequences of his conduct.147 In relation to incitement the person who incites must have the
dolus specialis to destroy, in whole or in part a protected group. This must be combined with
the intention to provoke another to do the same, implying a desire on the part of the perpetrator
to create by his actions a particular state of mind necessary to commit such a crime in the mind
of the audience he is engaging.148
Islamic State Practice
“O Jews, O crusaders, O Rāfidah, O murtaddīn, O sahwāt, O criminal’s, O enemies of Allah
altogether! We call upon all the muwahhidīn in Khurāsān to join the caravan of the Khilāfah
and abandon disunity and factionalism. Upon you today is a new fight;a fight toenforce tawhīd
(monotheism) and vanquish shirk (polytheism).”149
143 Muvyuni, para 503
144 Gerhard Werle, ‘Principles of International Criminal Law’ (2nd edn, T.M.C AsserPress 2009) 283
145 Munyuvi, para 504
146 The Rome Statute of the International Criminal Court 1998, Article 30
147 Mohamed E. Badar, ‘The Concept of Mens Rea in International Law: The case for a unified approach’ (1st
edn, Hart Publishing Limited 2013) 385
Publishing 2008) 35
149Aaron Y. Zelin, ‘Die in yourRage’ Accessed at http://jihadology.net/category/al-furqan-media/ Accessed
16th March 2015, An Address by the Spokesman for the Islamic State; The Mujāhid Shaykh Abu Muhammad
al-‘Adnānī ash-Shāmī (Audio message)

33
The caption above was taken from an audio message released by Islamic State
spokesperson Abu Muhammad al-Adnani. This is only one caption of hundreds which have
been released via the internet by IS; enabling their messages to reach out to a global audience.
For the purpose of this paper I am going to use the above caption to analyse whether the conduct
of the Islamic State amounts to the direct and public incitement to commit genocide. It is
important to note that this message is part of a wide scale and systematic propaganda technique
which is used by IS on a daily basis.
Unlike previous historical examples, such as the Nazi Genocide, the utterances deployed by
the Islamic State do not contain the direct semantic content evidencing they are guilty of
directly and publicly inciting others to commit genocide. In order to interpret Islamic state lexis
in light of the direct element of incitement there is a clear need to identify the specific intent
through their indirect speech references. To do this we must try to pinpoint a pattern or design
in there linguistic methodology in order to establish their commitment to commit and incite
genocide. By analysing their indirect speech, it will enable us to do this as implicit messages
may amount to incitement as long as the intended audience immediately understand the
implications of the message.150
Dabiq, named after a place in Syria; the location for one of the final battles according to certain
Muslim myths about a final apocalypse,151 is a propaganda magazine released by the Islamic
State aimed at recruiting jihadists globally.152 It is through this domain which will offer us an
insight into the cognitive functions of the Islamic State.
Dabiq: Linguistic Evidence
When analysing the linguistic terminology used throughout the Dabiq publications, it has
become apparent that the perpetrators do not call for commission of genocide expressly. Their
explicit use of religious doctrine has been manipulated to glorify, justify and solidify their
actions throughout Iraq and Syria. This could arguably be their most significant recruitment
tool. However, it also provides us with a key hole into the mindsight underpinning their motives.
In order to identify the mens rea of the offence I am going to draw on previous judgements
from the ICTR and other case law for guidance as to what will amount to direct and public
150 William A Schabas, ‘Genocide in International law: The Crime of Crimes’ (2nd edn, Cambridge University
Press 2009) 332
151 Jessica Stern and J.M. Berger, ‘ISIS: The State of Terror’ (William Collins 2015) 219
152 ‘The Clarion Project: The Islamic State’s magazine’ http://www.clarionproject.org/news/islamic-state-isis-
isil-propaganda-magazine-dabiq Accessed 22nd March 2015

34
incitement rather than mere hate speech, paying specific attention to the frequent use of
euphemistic, metaphorical, or otherwise coded language that is nevertheless perfectly clear to
the audience.153
The Islamic State show a linguistic pattern in the form of the following three words;
Apostasy (the conscious abandonment of Islam), Takfir (declaring a Muslim or an apostate a
non-believer, usually understood by jihadists as a religious authorisation to kill the subject)154
and Kafir (an unbeliever, disbeliever or infidel).155 These words form the basis of common
religious terminology and are embedded in cultural traditions, but they must be analysed in
relation to the context they are being used. The Islamic State adhere to, in their opinion, the
one true interpretation of Islam. Anyone falling foul of their ideology is classed as the above
and has been given an ultimatum; repent or be killed. In many circumstances the latter has been
administered bearing no option. This brings us to believe that the dolus specialis has in part
been identified, the protected group being each religious/ethnic group that find themselves
under IS control. In the caption used at the start of this sub-chapter the protected group are
identified and are ultimately classed as Kafir. The repeated use of terms such as Kafir/Takfir,
especially in relation to civilians provides an indication into the genocidal intent of the Islamic
State. This is because it provides a consistent pattern of evidence labelling apostates, regardless
of combatant status, as an enemy who are to be killed. Repeatedly linking the targeted group
with the term Kafir is an indirect method of subconsciously implementing the killing of
apostates in the minds of Islamic State militants. The mass killing of the Yezidi community in
Iraq supports this notion.
In the Rwandan case of Leon Mugesera, using his high political standing and intellectual
authority he instilled an atmosphere of fear in his audience, calling upon them to ‘rise up’, both
his political authority and his instillation of fear were found to be key elements in identifying
incitement.156 This same method has been adopted by the Islamic State. The significance of
naming Abu Bakr al-Baghdadi as Caliph is paramount as it claims religious authority over all
Muslims, thus reaching out to those who are vulnerable obligating them with a duty. This in
turn makes them more susceptible to carry out the actions which are being dictated to them.
Further to this, the use of religious doctrine is manipulated to enhance this religious authority.
153 Gerhard Werle, ‘Principles of International Criminal Law’ (2nd edn, T.M.C AsserPress 2009) 283
154 Jessica Stern and J.M. Berger, ‘ISIS: The State of Terror’ (1st edn, William Collins, 2015) Glossary
155 Ibid, Glossary
156 Jens David Ohlin, ‘Incitement and Conspiracy to Commit Genocide’ in Paola Gaeta (eds) ‘The UN Genocide
Convention: A Commentary’ (OUP 2009) 227

35
This touches upon the direct element of incitement which requires the specific provocation to
take criminal action. This authorial implementation must be viewed alongside the lexis used in
the Islamic State Publications, for example:
“The citizens of crusader nations should be targeted wherever they can be found. He should
be pleased to meet his Lord even if with just one dead kāfir’s namewritten in his scroll of deeds,
as the Prophet (sallallāhu ‘alayhi wa sallam) said, “A kāfir and his killer will never gather in
Hellfire” [Sahīh Muslim].
Every Muslim should get out of his house, find a crusader, and kill him. It is important that the
killing becomes attributed to patrons of the Islamic State who have obeyed its leadership. This
can easily be done with anonymity. Otherwise, crusader media makes such attacks appear to
be random killings.”157
There are some important inferences to be drawn from the above statement. First of all,
we must pay specific attention to the term ‘Kafir’ used in the first caption, this must be
considered alongside the term ‘crusader’. It is arguable that here a protected group is being
identified by the Islamic State. From the linguistic evidence it is apparent that there is a direct
call to take immediate criminal action. Taking into consideration the cultural aspects of the
lexis used, the use of the term ‘A Kafir and his Killer will never gather in hell fire’ may appear
ambiguous to a western audience. However, if the intended audience immediately grasped the
implications of the religious terminology, the direct element of incitement may have been met.
The intended act does not have to be completed as long as it was direct enough to provoke the
criminal act.158 The public requirement of this message is met with little controversy. There is
a clear call for criminal action and it has been distributed publicly on a global scale via the
internet. Therefore there are grounds to believe that the direct and public elements of incitement
have been met. In order to identify the mens rea element we must pay specific attention to the
indirect elements of the message; ‘this can be easily done with anonymity, otherwise ‘crusader’
media makes such attacks appear to be random killings’. The fact that the perpetrator does not
want the attacks to appear random suggests that they are inciting their audience to commit
murder as part of a plan or policy. Inferences such as these can be drawn upon to identify
157 ‘Islamic State (ISIS) Magazine Dabiq: issue 4, The Failed Crusade’ (The Clarion Project)
http://www.clarionproject.org/news/islamic-state-isis-isil-propaganda-magazine-dabiq Accessed 22nd March
2015
158Jens David Ohlin, ‘Incitement and Conspiracy to Commit Genocide’ in Paola Gaeta (eds) ‘The UN Genocide
Convention: A Commentary’ (OUP 2009) 225

36
whether the Islamic State have the specific genocidal intent required. Establishing the pivotal
intentions occurring in the sphere of a person’s mind is an undeniably hard task. However, as
seen in the Mugesera case, genocidal intent can be inferred by the circumstances surrounding
the incitement. The ICTR found that Mugesera was aware of ethnic massacres taking place
when he made the incitement.159 The Islamic State are not only aware of the ethnic massacres
occurring under their control, they are advocating them, thus providing further evidence that
they possess the genocidal intent to commit genocide. This translates to the elimination of those
who attribute divine status to anyone other than Allah, and is an example of how religious
doctrine can be used as a dehumanizing technique to radicalise persons.
If it can be proven that the Islamic State is guilty of direct and public incitement to commit
genocide, the Rome Statute must be scrutinised in order to establish how, if at all, the ICC
could prosecute those who bear the most criminal responsibility.
3.2 Article 25(3)(e) of the Rome Statute of the International Criminal Court
The Rome Statute does not incorporate direct and public incitement to commit genocide as an
independent crime falling under the Court’s jurisdiction. However, in accordance with the
Statute a person shall be criminally responsible and liable for punishment; if that person, in
relation to genocide, directly and publically incites others to commit genocide.160 This is a
significant departure from the Statues of the ICTR and ICTY and the Genocide Convention
which view incitement to commit genocide as a substantive stand-alone crime. The Rome
Statute takes a narrow approach, providing a separate ground for criminalisation of incitement
which only applies to genocide as opposed to war crimes and crimes against humanity.
Advantages can be drawn from valuing incitement as an independent crime or as forming part
of genocide. It is arguable that incitement compared to genocide is a lesser crime and does not
bear the same stigma, however William Schabas stated that complicity to genocide should not
be viewed as being less serious than genocide itself. He argues that the guilt of the accomplice
is really superior to that of the principal offender.161 At my first point of writing, I took the
opposite approach to Schabas. However, after delving further into the crime of incitement it is
apparent that the crime falls under that of the most heinous nature. My reason for this being the
159 Ibid, 227
160 Rome Statute of the International Criminal Court 1998, Article 25(3)(e)
161 William A. Schabas, ‘Genocide in International Law: The Crime of Crimes’ (2nd edn, CUP 2009) 307

37
dolus specialis required to be guilty; the perpetrators intent compromises two tiers and the
crime is one that involves manipulation, provocation and premeditation.
The ad hoc Tribunals and the Genocide Convention make no mention as to whether incitement
could be penalised in cases without a completed genocide. Although in Akayesu it was held
that a completed offence was not necessary for an incitement conviction.162 The point being
that the ad hoc Tribunals were created as the Genocides in both countries had already occurred.
The International Criminal Court is provided with an opportunity to develop the jurisprudence
in this area. The Islamic States efforts to commit genocide have not been fully completed.
Therefore the ICC has the potential to provide the International Community with platform to
help prevent whole-scale genocide whilst it is in the early stages of perpetration, rather than
waiting till the mass atrocities have gone to unfathomable lengths.
Thomas E. Davies poses that the Rome Statute weakens the international prohibition
on incitement to commit genocide.163 From an analytical standpoint he makes a valid point.
Giving the International Community the opportunity to prevent genocide by punishing the
applicable inciters before the subsequent genocide occurs is a formidable strength of the
independent crime, one which fuelled the creation of the Genocide Convention. By not
allocating the crime its independence undermines its severity.
However, the idea of prevention is a strength that only thrives in a hypothetical world. Granted,
the full effectiveness of the crimes independence can be seen in the jurisprudence of the ad hoc
Tribunals but an argument can be made that their success stems from the mandate in which
they were set up for. In the Bikindi case164 Simon Bikindi was held responsible for incitement
whilst driving along a road speaking to crowds of people via a speakerphone ordering them to
kill Tutsis. He was only found guilty as the prosecutor did not need to prove that any particular
person heard any of Bikindi’s orders and then acted upon it. In this situation, if incitement was
not an independent crime, the lack of proof would have made it impossible to convict
Bikindi.165 However, in the modern day the internet allows people to address hundreds of
thousands, if not millions of people at any given time. As a result of this the differentiation
162Prosecutorv Jean-Paul Akayesu (1998), See also the discussion at: David Ohlin, ‘The UN Genocide
Convention: A Commentary’ (Paola Gaeta Ed, OUP 2009)
164 Prosecutorv. Simon Bikindi, Case No. ICTR-01-72-T Judgement and Sentence – 2 December 2008
Genocide’ (2009) 1(1) Harvard Human Rights Journal

38
between incitement and hate speech has become intertwined and requires a complex analysis
to distinguish them.
If incitement was an independent crime under the Rome Statute, the crime may be
rendered ultra vires in nature, enabling the Court to prosecute individuals due to not having to
prove, as in the Bikindi case, that any particular person heard any specific utterance and then
acted upon it. This would put the Court under particular pressure from politically powerful
States, such as the five super powers, to potentially prosecute certain individuals for purely
political reasons, undermining the legitimacy of the Court. The Court would be subject to
apologia-utopia criticisms. It would be deemed to fall under political influence to prosecute
potential high-ranking inciters, and it would be deemed to fall under political influence if it
didn’t proceed to prosecute potential high-raking inciters.166 On the other hand, the severity of
genocide is so grave that if the utterances used by a perpetrator even flutter with the nature of
incitement then it would deem justifiable that they lose protection under international law.
It would appear that the main purpose of prosecuting a person for directly and publicly inciting
to commit genocide is to prevent that subsequent genocide from happening; the crimes
relentlessness stems from the atrocities it provokes. Thomas E. Davies makes an interesting
argument in support of incitement to genocide as a substantive crime in that it allows
prosecution to be brought for incitement where crimes have been conducted at a targeted group
but actual genocide has not been proven.167 It is hard not to agree with this statement. However,
this is another point which provides success in a hypothetical context. At the present date, it
has not been proven that the Islamic State are guilty of committing crimes amounting to
genocide, however they are continually targeting groups based on the ethnicity/religion.
Regardless of this, allocating incitement its own independence under the Rome Statute would
bear no relevance to the effectiveness of the Court in this situation, my reason for this being
one of the most fundamental weaknesses of the ICC; its inability to enforce arrest warrants. As
the Court does not possess its own police force, the responsibility to enforce warrants of arrest
in all cases remains with States party to the Statute. Article 86 of the Rome Statute provides
that States shall cooperate fully with the provisions of this statute in its investigation and
166 Darryl Robinson, ‘Inescapable Dyads: Why the ICC Cannot Win’ Queens University Research papers March
2015 Available at: http://ssrn.com/abstract=2491187 Accessed on:7th April 2015

39
prosecution of crimes within the jurisdiction of the Court.168 In establishing the ICC, the States
set up a system based on two pillars. The Court itself is the judicial pillar. The operational pillar
belongs to States, including the enforcement of Court’s orders.169 As a result of this, finding
certain perpetrators (this could involve a significant number) guilty of committing direct and
public incitement to commit genocide may not bring the Court any closer to holding said
perpetrators accountable. One could argue that the Court, as a legitimate force, lacks strength
as it is vulnerable to the reliance of member States. This weakness is evident in the ICC’s
indictment of president Al-Bashir and its inability to bring him to The Hague without assistance
of member States.170 Taking this into consideration, alongside incitement being situated in
article 25(3)(e) of the Rome Statute, the opportunity to aid the prevention of genocide may
have been surpassed.
However, the Rome Statutes placement of incitement in Article 25(3)(e) can be seen to
be placed in a position of particular relevance. Bearing in mind the mandate of the Court, article
25(3)(e) can be viewed as a mode of criminal participation, one that has the ability to enhance
a perpetrators level of criminal responsibility. The International Community’s reluctance to
classify situations as genocide stems from the definitive requirement of proving genocidal
intent. Analysing the group’s direct and public incitement may provide further evidence to
cement this allegation in international criminal law; thus adding another string to the
Prosecutors bow. When analysing a situation, the Prosecutor pays specific attention to the
gravity of the crimes at hand. This includes an assessment of the scale, nature, manner and
impact of the alleged crimes.171 Viewing incitement as a mode of participation significantly
enhances the criminal responsibility of the Islamic State, in particular figures such as Baghdadi
and al-Adnani. As the gravity threshold provided for in Article 17(1)(d) of the Rome Statute172
is intended to ensure that the Court initiates cases only against the most senior leaders suspected
of being the most responsible for the crimes within the jurisdiction of the Court, incitement’s
position in the Rome Statute aids the prosecutor in identifying said leaders, thus bringing them
168 Rome Statute of the International Criminal Court 1998, Article 86
169 ‘Understanding the International Criminal Court’ ICC Doc Accessed: http://www.icc-
cpi.int/iccdocs/PIDS/publications/UICCEng.pdf accessed 20th March 2015
170 Gwen. P. Barnes, ‘The International Criminal Courts Ineffective Enforcement Mechanisms: The Indictment
of President Omar Al Bashir’ Vol. 34 No.6 FILJ 2011
171 Draft Policy Paper on Preliminary Examinations, The International Criminal Court 4 October 2010 accessed
at: http://www.icc-cpi.int/NR/rdonlyres/9FF1EAA1-41C4-4A30-A202-
174B18DA923C/282515/OTP_Draftpolicypaperonpreliminaryexaminations04101.pdf accessed 6th April 2015
172 Rome Statute of the International Criminal Court 1998, Article 17(1)(d)

40
one step closer to achieving the Courts objective.173 Incitement must also be viewed in the
light of another limitation the Court is faced with; its lack of resources. If incitement was
allocated its independence under the Rome Statute the Court would be faced with even more
situations falling under its jurisdiction, a situation that the Court is not equipped to deal with.
This would warrant even further criticism from the International Community. Therefore one
could argue that the positioning of incitement warrants not just prosecutorial benefits, but
procedural benefits also.
On the other hand there is an ambiguous complexity arising from incitements position
under the Rome Statute. As it stands, a person who commits incitement can only be held
responsible for the acts of genocide that resulted therefrom.174 Direct and public incitement to
commit genocide, as I have mentioned above, is regarded as an inchoate crime, one which does
not require the actual act of genocide to occur in order to hold someone accountable. Therefore
it would seem the Rome Statute removes incitements inchoate nature as the prosecutor would
have to prove the perpetrator incited genocide, and that genocide was then committed, thus
diminishing the deterrent aspect of the crime. Thomas E. Davies poses that the International
Community should amend the Rome Statute in order to enable the ICC to treat it as a separate
crime.175 Unfortunately it would seem that even in doing so; the only advantages stemming
from an amendment would work hypothetically. In relation to the Islamic State, viewing Abu
Bakr al-Baghdadi and other senior officials in the light of inciting genocide would evidence
the severity of their individual criminal participation, proving to be far more advantageous.
Taking into account that the OTP has not yet opened up an investigation, enhancing the gravity
of the crimes committed by said individuals will only weigh in favour of the Court proceeding
to do so.
Based on the criminal activity in which the Islamic State have showcased globally over
the last year, it would appear there are legal grounds to believe their crimes fall under the
jurisdiction of the International Criminal Court. As a result of this, the legal requirements set
out in phase one of the Office of the Prosecutors preliminary investigations have been satisfied.
Labelled the Court of last resort, created to prosecute individuals guilty of committing crimes
173 Susana SaCouto and Katherine Cleary, ‘The Gravity Threshold of the International Criminal Court’ Vol.23
issue 5 AILR 2007
Genocide’ (2009) 1(1)
175 Ibid, 270

Fourth Year Thesis

Recommended

Recommended

More Related Content

What's hot

What's hot (20)

Similar to Fourth Year Thesis

Similar to Fourth Year Thesis (12)

Fourth Year Thesis