ISIS's Crimes In Iraq And Syria And The Reasons For Not Referring The Terrorist Organization's Crimes To The International Criminal Court

Document Type : Original Article

Author

PhD Of International Law, Faculty Of Law, Razavi University of Islamic Sciences, Mashhad, Iran.

10.22091/lsic.2025.10088.1025

Abstract

After seizing control of several Syrian cities, the terrorist organization ISIS committed brutal crimes that constitute a clear example of the crimes listed in Article 5 of the Rome Statute: "genocide, crimes against humanity, and war crimes." This led many international legal scholars to expect the International Criminal Court (ICC), which is responsible for the administration of criminal justice, to carry out its duties in prosecuting the leaders and members of this terrorist organization. However, in this article, which adopts a descriptive and analytical approach, and after extensive review and study, we find several reasons that have prevented the referral of ISIS crimes to the court. These include: Syria's non-membership in the court's statute, the court's complementary jurisdiction, the Security Council's failure to carry out its duties in referring ISIS crimes, and the limitations of the Pre-Trial Chamber of the Prosecutor's ability to refer cases to the court. However, despite these obstacles to referring this case to the court, Article 13 of the Statute foresees such cases and grants the UN Security Council and the ICC Prosecutor the ability to refer such cases to the court. Furthermore, the Syrian Arab Republic could issue a statement accepting the court's jurisdiction for a specific period with respect to crimes committed by the terrorist organization ISIS only. However, for various reasons, we have not seen these steps taken, in the hope of prosecuting ISIS in the future.

Keywords


  1. Ahmed Bourdaaa, Sindiana, Salahian, the Prosecutor of the International Criminal Court and the Restrictions Imposed on It, Dar Al-Fikr Al-Jami’i, Alexandria.

    1. Bayoumi Hegazy, Abdel Fattah, The International Criminal Court, A Specialized Study in International Criminal Law, Theory of International Crime, Theory of Jurisdiction of the Court, Dar Al-Kotob Al-Qanuniyah, Egypt, 2007.
    2. Tamrkhan Beka, Sawsan, Crimes Against Humanity in Light of the Provisions of the Statute of the International Criminal Court, Al-Halabi Publications, Beirut, First Edition, 2006.
    3. Hamid, Belhadi, Procedures of the Case before the International Criminal Court, a thesis submitted for a Master’s degree in Criminal Law and Criminal Sciences, Faculty of Law, Ben Aknoun, University of Algiers, 2011.
    4. Sayed Kamel, Sharif, Jurisdiction of the International Criminal Court, Dar Al-Nahda Al-Arabiya, Cairo, 1st ed. 2004.
    5. Sharif Bassiouni, Mahmoud. The International Criminal Court, An Introduction to the Study of the Provisions and Mechanisms of National Rescue of the Statute, Dar Al-Shorouk, Cairo, First Edition, 2004
    6. Sharif Bassiouni, Mahmoud, The International Criminal Court, Its Origins and Statute, New Rose Al-Youssef Press, 3rd ed., 2002
    7. Sadeghi, Mir Mohammad, A Review of the International Criminal Court, A Legal Review of the World Court, Imam Sadegh's Law, No. 2, 1384
    8. Sadeghi, Mir Mohammad, A Review of the International Criminal Court, op. cit.
    9. Saqr, Nabil, Documents of the International Criminal Court, Dar Al-Huda, Ain Mlila, Algeria, p. 265; Muhammad Shabl, Badr al-Din, Substantive International Criminal Law, A Study of the Structure of the Substantive International Criminal Rule, State Crime and International Punishment, Dar al-Thaqafa for Publishing and Distribution, Jordan, 2011
    10. Al-Ajmi, Saad, The Security Council and its Relationship with the Statute of the International Criminal Court (An Analytical Study of Security Council Resolutions 1422, 1487, and 1497), Journal of Law, Kuwait University, Issue 4, 2005
    11. Alwan, Muhammad Yusuf, The Jurisdiction of the International Criminal Court, Journal of Security and Rights, Dubai Police College, Issue 1, 2002
    12. Omar Theeb Abu Rkba, Rami, Crimes Against Humanity, Substantive and Procedural Provisions, PhD Thesis, Faculty of Law, Cairo University, 2007
    13. Amr, Muhammad Sameh, The Relationship of the Security Council with the International Criminal Court - An Authentic and Analytical Study of Practical Practices, Dar al-Nahda al-Arabiya, Cairo 2008
    14. Falah Al-Rashidi, Madus, The Mechanism for Determining Jurisdiction and its Convening in International Crimes According to the Rome Statute of 1998, Kuwaiti Journal of Law, Issue 2, Year 28, July 2003
    15. Muhammad Atlam, The Prosecution System before the International Criminal Court, a paper presented to the International Criminal Court Symposium (The Challenge of Immunity), held in Damascus from 403 to November 2002, 2nd ed.
    16. Mohammadi Fomni, Hussein, The System of Inter-Religious Justice in the Islamic State, 1393
    17. Mukhtar Ali Saad, Al-Taher, International Criminal Law, International Sanctions, Dar Al-Kotob Al-Jadid, Beirut, 1st ed., 2000
    18. Mustafa Younis, Muhammad, Features of Development in International Humanitarian Law, Dar Al-Nahda Al-Arabiya, Cairo, 2nd ed., 1996
    19. Munther Kamal Abdul Latif, Baraa, The Judicial System of the International Criminal Court, Dar Al-Hamed for Publishing and Distribution, Jordan, 1st ed., 2008.
    20. Momeni, Mahdi, Arziabi, The Works of the Iranian Criminal Court and the Inter-Milli Court of Justice Related to ISIS Crimes in Syria and Iraq, Journal of Applied Law, 21st Edition, No. 1, 1396.
    21. Yousef Shukri, Ali, Criminal Justice in a Changing World, Dar Al-Thaqafa for Publishing and Distribution, Jordan, 1st ed., 2008.
    22. Nassif, Jassim Hamdan, The Discourse of Fanaticism, Hatred, and Extremism: ISIS Magazines "ISIS as a Model": An Analytical Study, Journal of the Iraqi University, Issue 43, Vol. 3, 2019.
    23. Morteza, Javanmardi Sahib, Mohammad Bagher Rastegar Mahjonabadi, An Examination of the Hypothesis of the Lineage of ISIS I am a Yazidi, this is Iraq, mediated by ISIS, and this is the right of punishment and crime, Shenasi, Shamara 9, 1396.
    24. Poria Askari; Hamid Masoudi Koshak, The sabotage of the inheritance of the Syrian Farhangis, mediated by ISIS and Rahkarhai, an interview with the rights of the sects, Journal of Rights among the Sects, Shamara 58, 1397.
    25. Lisani, Sayyed Hossam al-Din, Yalda Taqizadeh, “The Rules of a Ruler for Sabotaging the Farhangi Inheritance in Armed Disputes Between the Sects, Confirming the Right to Kill ISIS,” Public Rights Reviews, 49th session, Shamara 3, 1398.
  • Receive Date: 13 November 2024
  • Revise Date: 17 December 2024
  • Accept Date: 13 May 2025
  • First Publish Date: 03 June 2025
  • Publish Date: 15 June 2025