The Long Arm of the Law: ISIS and a Tool for U.S. Action

Since ISIS caught the world off guard with its rapid advance through Iraq, and fomented widespread horror and condemnation at its brutal tactics not only in waging war but also in governing those areas that it brought under its control, the United States, and the international community, have been debating how to respond in order to halt ISIS’s advance and reduce their power. That debate has been largely twofold. First, and most prominently, is the debate as to how to respond militarily—involving questions of whom to collaborate with, what arms to provide, what methods to use, and whether to have “boots on the ground”.

Secondary has been a debate about how to respond legally, in the form of criminal prosecutions against ISIS leaders and members for the acts they have perpetrated, which read like a dishonor role of humans’ inhumanity to other humans. They include reports of beheadings, shootings, amputations, stonings, and rapes. Ideas floated about how, exactly, to go about prosecuting members of ISIS have been wide-ranging, and have included suggestions of prosecutions in Iraqi courts, at the International Criminal Court, and by the countries of origin of the foreign fighters that have joined ISIS. All of these options face practical challenges of one sort or another, but that does not mean they are not worth pursuing.

Another option that has been floated is the possible use of universal jurisdiction laws in States that have them. Universal jurisdiction laws allow a State government to prosecute a certain crime or set of crimes even if the facts of the crime have no connection to that State. Such a connection is usually a necessity for a particular State’s courts to have jurisdiction to hear the case, and is usually met, for example, because one of the State’s nationals was a perpetrator or victim, or the crime occurred on the State’s territory. A number of States have such laws, including the United States, which allows universal jurisdiction for the crime of genocide.

One of the stories out of Iraq’s ISIS ordeal that resonated with the world community, and brought some of the United States’ first widely-reported actions against ISIS in Iraq, was the plight of the Yazidis. The Yazidis, a minority ethnic group whose religion, like all non-Sunni Muslims, made them an ISIS target, were forced to flee after ISIS began attacking their enclaves and killed, raped, and abducted some of them. The “lucky” ones were given the opportunity to convert to Sunni Islam on pain of death. The unlucky ones were given no such opportunity. A large group of Yazidis were being hunted and chased by ISIS, and found themselves trapped on Mount Sinjar in northern Iraq, west of Mosul, with no escape possible. The intervention of U.S. forces eventually opened up an escape route for the Yazidis off the mountain. President Obama, in explaining his actions authorizing the bombing of ISIS to protect the Yazidis stated that those trapped on the mountain were “without food, they’re without water. People are starving. And children are dying of thirst. Meanwhile, ISIL forces below have called for the systematic destruction of the entire Yazidi people, which would constitute genocide.”

I raise this episode because it is probably the best known, and clearest, example of ISIS attempting to perpetrate genocide. The word “genocide” here is not used in the colloquial sense in which it is often employed to mean something akin to “large-scale killing”, but in the legal sense which has specific elements laid out by the Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”). What this more legalistic definition of the crime requires is that a national, ethnic, racial, or religious group is targeted on the basis of that characteristic; that the perpetrators of the crimes intend to destroy this group in whole or in part; and that they carry out this intention by using one or more of specifically enumerated methods, which include killing and “causing serious bodily or mental harm to members of the group.”

Applying this to ISIS’s targeting of the Yazidis is self-evident. The Yazidis would be considered at least two of the protected groups (as an ethnic and/or religious group) and they were targeted on that basis; it seems apparent that ISIS had the intention to wholly destroy them; and ISIS members carried out that attempt to destroy the Yazidis using a number of the prohibited means, including killing and causing serious bodily and mental harm to the members of the group. Ivan Šimonović, UN Assistant Secretary General for Human Rights, has said that the actions of ISIS “may amount to attempted genocide.”

This brings us to U.S. law concerning genocide

The United States federal code at 18 U.S.C. 1091 incorporates into U.S. law the Genocide Convention’s definition of genocide. It allows for imprisonment and fines of up to $1,000,000 for persons who perpetrate genocide, and also allows for prosecutions of persons who incite genocide, attempt genocide, or conspire to commit genocide. Significantly, it also gives federal courts jurisdiction to hear cases in which “regardless of where the offence is committed, the alleged offender is … present in the United States.” (Genocide is not the only crime over which U.S. courts have universal jurisdiction. Such jurisdiction has also been conferred, for example, on crimes of piracy (18 U.S.C. 1651) and torture (18 U.S.C 2340A).)

The U.S. Department of Justice should consider exploring charges of genocide against members of ISIS, to include not only Americans who may have travelled to join ISIS, for which there would be jurisdiction in U.S. courts based on their citizenship, but also other nationals who could be prosecuted if they ever come to be in the U.S. For the latter group, securing an indictment on such charges would allow the U.S. to seek extradition from States the individuals might be transiting through or where their national governments are less willing or able to prosecute them. It would also allow the U.S. to arrest suspects even if their passage through the United States is only transitory. Even if a prosecution does not ultimately occur in a U.S court, the evidence gathered could be useful to other States’ courts or international courts should they bring prosecutions, and the knowledge that the U.S. is pursuing such cases might also have a deterrent effect against current ISIS fighters or those contemplating joining them.

Even in these days of seemingly unprecedented political polarization in Washington, prosecuting genocide should be an action that receives bipartisan support. Indeed, it was as recently as 2007 that the U.S.’s genocide law, originally passed in 1987, was amended to provide for universal jurisdiction with the support of politicians from both major political parties. The Genocide Accountability Act of 2007 was sponsored by Senator Richard Durbin, and other Democratic co-sponsors in the Senate included progressive stalwarts Senator Russell Feingold, Senator Patrick Leahy, and the late Senator Edward Kennedy. But it was also co-sponsored by Republican Senators Thomas Coburn and John Cornyn, and, after passing the Senate by unanimous consent and the House by voice vote, was ultimately signed into law by President George W. Bush. Clearly, there was broad-based agreement that it is a worthy endeavor for the U.S. to exercise its prosecutorial muscle in the service of punishing crimes of genocide even when they might be at some degree of removal from most crimes tried in domestic U.S. courts.

The Obama Administration, also, has endorsed reasonable use of universal jurisdiction. In a 2010 submission regarding “the scope and application of the principle of universal jurisdiction” to the General Assembly of the United Nations, the U.S. government wrote that “the United States believes that such jurisdiction, when prudently applied, with appropriate safeguards against inappropriate application, and with due consideration for the jurisdiction of other states, can be an important tool for ensuring that perpetrators of the most serious crimes are brought to justice…”

In his statement announcing the U.S. bombing of ISIS to protect the Yazidis trapped on Sinjar Mountain, President Obama stated: “when we have the unique capabilities to help avert a massacre, then I believe the United States of America cannot turn a blind eye. We can act, carefully and responsibly, to prevent a potential act of genocide.” The same goes for punishing acts of genocide when they occur. The U.S. Department of Justice can and should use its available powers of universal jurisdiction, carefully and responsibly, to investigate and prosecute alleged genocide perpetrators in the fight against ISIS.

 

The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations.



Andrew Boyle, US

About

Andrew Boyle is a prosecuting attorney for the United Nations at the Extraordinary Chambers in the Courts of Cambodia, also known as the Khmer Rouge Trials. He has previously worked as an attorney at the International Criminal Tribunal for Rwanda, the Brennan Center for Justice, and as a law clerk to a federal judge.


  • Anonymous

    The questions I’m thinking of are a) How many of the identified ISIS members will pass by / transit in the US (maybe for Black Friday?) and b) Whether there exists one single ISIS member that would be deterred by a US trial.
    Bonus (legal) questions for Andrew: c) How does the US court system identify an individual as an ISIS member and d) Does the US federal code also convict ISIS members that did not ‘incite genocide, attempt genocide, or conspire to commit genocide’?

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