Editorial By Selwyn Manning.
The Issue: ISIS Crimes Outside International Criminal Court Jurisdiction – Unless UN Security Council Orders Inquiry
ALSO TODAY, the newly elected President of the International Criminal Court (ICC), Judge Silvia Fernández de Gurmendi, met with the United Nations secretary general, Ban Ki-moon.
The ICC president stressed the need for the ICC and the UN “to explore opportunities for working together to ensure accountability for serious crimes, to contribute to the prevention of genocide, crimes against humanity and war crimes, as well as to provide redress to the victims of such atrocities”. (ref. ForeignAffairs.co.nz)
Over the next few days, the ICC president and its chief prosecutor will meet with ambassadors and permanent representatives of countries that are signatories to the ICC and its statute – New Zealand, as a member of the UN Security Council, is significant among these nations.
New Zealand’s representatives will be confronted by the ICC chief prosecutor’s fact-check, that: Crimes of unspeakable cruelty have been reported, 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. The commission of the crime of genocide has also been alleged,” Judge Fatou Bensouda said.
For those unsure of what the ICC is about, the International Criminal Court conducts independent and impartial investigations and prosecution of the crimes of genocide, crimes against humanity and war crimes. It is the global body that was created to investigate and bring to justice those who commit crimes on a massive scale – often criminals who believe their offending is beyond the reach of law and consequence.
In an ideal world, the ICC would already be investigating, identifying, documenting ISIS crimes, and crimes committed by militia and other forces in the region. But because Iraq and Syria do not recognise the jurisdiction of the ICC, an investigation can only occur should the UN Security Council request it to do so.
Specifically, the statute reads as follows:
The (International Criminal) Court may only exercise jurisdiction over international crimes if (I) its jurisdiction has been accepted by the State on the territory of which the crime was committed, (ii) its jurisdiction has been accepted by the State of which the person accused is a national, or (iii) the situation is referred to the Prosecutor by the Security Council acting under Chapter VII of the UN Charter.
That’s where New Zealand can play a progressive part.
As a member of the UN Security Council New Zealand has the power to argue for the Security Council to refer these crimes to the ICC so it can begin a large-scale investigation into these (and the crimes of others inside Iraq and Syria).
New Zealand was appointed to the UN Security Council on the basis of its advocacy for human rights and justice. One cannot imagine a more grave issue developing that advocates a large-scale and coordinated international policing and judicial response.
New Zealand Government ought to be mindful, that victims of these crimes may not be exclusive to citizens of other countries, that New Zealander/s too could be shown to have fallen to the perpetrators of these crimes.
It isn’t as if the International Criminal Court is shying away from doing what it was set up to do.
The ICC’s chief prosecutor, Fatou Bensouda, said today: “As Prosecutor of the ICC, I stand ready to play my part, in an independent and impartial manner, in accordance with the legal framework of the Rome statute.”
Taking this on board, surely the ISIS crimes, and those of other militia in this retched theatre, ought to compel the New Zealand Government to make use of its proud history of advocacy for human rights and justice.
As such, New Zealand ought to bare a burden here and speak to the world’s powers via its membership of the UN Security Council and argue that in times of war, victims – whether in memory or in fact, whether in person or on their behalf – especially deserve recourse to international courts of justice.
The New Zealand Government has an opportunity to mean something here. If it chooses to, it can:
- Stand up as a newly appointed member of the UN Security Council
- Declare the actions of ISIS as gross crimes against humanity
- Speak to the ideals of recourse, investigation, identification, and conviction
- Demand that the UN Security Council refer the matter to the International Criminal Court prosecutor so that an international judicial response be initiated.
New Zealand would not be alone on this matter. Already France and Switzerland have lobbied for the UNSC to authorise an ICC response. (ref. See today’s New York Times)
It is an absurdity that the New Zealand Government has not done this already. It is after all a signatory to the ICC Rome Statute, and part of the very body that can order judicial process to progress. If the New Zealand Government refuses to do so, the question remains as to why it was appointed to the UN Security Council in the first place.
The ICC has opened investigations in:
- Uganda; Democratic Republic of the Congo; Darfur, Sudan; Central African Republic; Kenya; Libya; Côte d’Ivoire and Mali. The Office is also conducting preliminary examinations relating to the situations in Afghanistan, Colombia, Georgia, Guinea, Honduras, Iraq (alleged abuses by UK forces), Nigeria, Palestine and Ukraine.