“I have come to the conclusion that the jurisdictional basis for opening a preliminary examination into this situation is too narrow at this stage,” she said in a statement issued in English and French.
Whilst recognizing that the atrocities committed by the Jihadist group could constitute crimes falling within the ICC’s jurisdiction, the Prosecutor regrets that neither of the countries concerned – Iraq and Syria – are States Parties to the ICC.
She says that given this fact, the ICC can only exercise its jurisdiction over IS members who are nationals of States Parties. Bensouda says information available to her office indicates that several thousand foreign fighters have joined IS in the past months alone, including nationals of States Parties such as Tunisia, Jordan, France, the United Kingdom, Germany, Belgium, the Netherlands and Australia.
But at the same time, she says it indicates that IS is “a military and political organisation primarily led by nationals of Iraq and Syria”.
“Thus, at this stage,” she continues, “the prospects of my Office investigating and prosecuting those most responsible, within the leadership of ISIS, appear limited.” The ICC’s policy is to concentrate on those most responsible for mass crimes falling under its jurisdiction.
IS has been accused by the UN, the Arab League, the United States, the European Union and non-governmental organizations of committing mass atrocities. “Crimes of unspeakable cruelty have been reported,” says Bensouda, “such as mass executions, sexual slavery, rape and other forms of sexual and gender-based violence, torture, mutilation, enlistment and forced recruitment of children and the persecution of ethnic and religious minorities, not to mention the wanton destruction of cultural property.” Some organizations have also accused IS of committing genocide.
As the Gambian Prosecutor states, prosecutions by the ICC are only possible if this is requested by Iraq, Syria or the United Nations Security Council.
“I remain committed to consult with relevant States to coordinate, and possibly exchange information on crimes allegedly committed by their nationals to support domestic investigations and prosecutions, as appropriate,” Bensouda continues.
“My Office also remains open to receive additional information which could provide further clarity on the positions occupied by State Party nationals within the ISIS organisational hierarchy,” she says.