Will ISIL fighters ever face justice

What laws is ISIL breaking and what are the chances of them being held accountable

There has been talk recently about how to deal with British citizens coming back after fighting for the Islamic State of Iraq and Levant (ISIL), also known as ISIS. The fact that responses from government have been criticised as illegal – such as removing citizenship – or archaic – such as trying them for treason – speaks to the confusion of the issue. This confusion is part of an international problem of how ISIL can be legally dealt with and how its members can be held accountable. For example Obama claimed ISIL would be “held accountable”, yet most commentators have noted that there is little hope of that happening other than through “rough military ‘justice’”. Amid this confusion it is important to know what rules apply and how ISIL may be held accountable

The laws of armed conflict, also known as International Humanitarian Law (IHL), now apply to the conflict between ISIL and the US-led international coalition because of the extent of violence and because of how organised ISIL is. These laws oblige all parties to, among other things, respect the safety of civilians and civilian objects in conflicts by only targeting military objects; reduce the use of “excessive” violence and refrain from engaging in method of fighting that cause suffering disproportionate to the military advantage. The domestic law of Iraq would also apply in the areas controlled by the government but it is less clear whether these laws would apply to the vast areas which have been seized by ISIL.

These laws apply to all sides however it has become clear that ISIL is not abiding by them. For example, as I discussed last month, the UN has found evidence of crimes directed against civilians. Similarly, ISIL has advertised its violations online – for example through the videos of the beheadings of American and British citizens.

The evidence of these crimes, however, not enough and the three main options for dealing with it provide more problems than solutions.

First, these fighters could be tried by Iraq. Many of ISIL’s crimes are clearly against Iraq’s legal codes, which are backed up by a functioning legal system in the areas the government controls. However, now that ISIL controls a third of the country national investigations or prosecutions are not realistic.

Second, Britain would have the right to try some of these crimes. This could be done through domestic anti-terrorism laws. For example, in Germany three were convicted for aiding terrorism after they were caught heading for Syria with supplies. Britain’s first terrorism trial also began, mostly in secret, last month. Unfortunately, these are exceptional cases because the perpetrators were in the country. Another way would be through the principles of universal jurisdiction. This states that Britain, like other state signatories, has a duty to prosecute grave breeches of international law even if they did not take place on their territory or involve their citizens.

However, this would be difficult. With the obvious exception of “Jihadi John” (the British ISIL militant thought to have carried out the beheadings of British and American citizens) many Western fighters are doing menial tasks because of their lack of religious education and military expertise. Similarly, it has been revealed that some Britons are being forced to stay with ISIL. It was found that many went to Syria to help militants fight the Assad government but then ended up mixed with ISIL – often for language reasons because many in ISIL speak English – and now they are being threatened with death if they leave. So not only would these trials be likely to target the low ranks rather than key players in ISIL, they could try people who were forced to stay after going to fight against repression in Syria. The problem is further exacerbated, as Boris Johnson has pointed out, by the fact that evidence of these crimes would be difficult get.

Finally, there is the International Criminal Court (ICC). This was created in 1998 as an independent organization to try “perpetrators of the most serious crimes”, according to its website. Unfortunately, neither Syria nor Iraq signed up the ICC and so the case would need to be referred from the UN Security Council. This is unlikely; for example it was attempted in the case of Syria this year but was vetoed by Russia and China.

So there are no easy answers to the confusion regarding the legal status and prospects of accountability for ISIS. Unfortunately, there may need to be more military “justice” before these fighters can be held accountable through one of these judicial systems.