Probably the family of American journalist, Steven Sotloff, murdered by ISIS in September 2014 in Syria, gave the clearest definition of justice they believe must be served for perpetrators of the beheading of their son. Quoted in a report published by the Daily Mail on 26 February 2015, Sotloff parents say that Mohammed Emwazi, known as Jihadi John, and who has been revealed to be the executor of Steven brutal murder- must be prosecuted in an American court of law. In pursuing such an option of justice, Americans would need to capture him, prosecute and convict him, although its uncertain in which legal setup they would do so.
Nevertheless, the US President Obama do not seem to have the same clarity. Reacting to the same incident, on 3 September 2014, he said justice will be served on ISIS for the killing of Sotloff. He however, never explained how, and although he emphasized that his administration objective is the destruction of the group, he never provided a clue if justice means or would mean a prosecution process, or what is best framed as a process of “accountability”.
The question that seems a bit challenging in this context is how to bring ISIS to justice for the crimes its committing. It is challenging for a number of reasons, some of which relate to legalistic issues and some correlate with political discourse, which is more troubling. Lets discuss briefly a process model for a presumed ISIS accountability.
At first glance, a perpetrator of a crime needs to be reined-in captured/seized/apprehended. Where any process model starts with an “input” the apprehension of ISIS individuals is the first step. Secondly, there is a “transformation” dynamics and processes and it is concerned with methodologies and means utilized to produce a result. At any rate, transformation in this context is the legal means and instruments used to “prosecute” and try those members of ISIS. Thirdly and lastly, there is an output which culminate what happened in the prosecution and trial (transformation) phase into a supposed “conviction”.
ISIS accountability model requires us to figure out what will be the transformation element of it before getting to inputting the entire process. In other words, it requires us to assign the legal instrument, mode and authority under which ISIS members are going to be tried. And here rests the struggle.
ISIS crimes cannot be brought to the International Criminal Court (ICC) simply because the two countries (States) on which territories ISIS crimes have been committed, Syria and Iraq, are not members in the Court and for a prosecution to be taken there, a UN Security Council referral need to be produced. With Russia and China blocking such a referral in Syria and with no will or interest to look at the scene of crimes committed in Iraq, by ISIS and other militias-its unreasonable to bid hopes on ICC referral.
Then, what about referring to national legal systems in these countries to try for crimes which has an equivalent in national legislation; including ill-treatment, forced disappearance, killing and other crimes. Syria is not really known for the strength of its legal system, and in fact its corrupted and government-monopolized judiciary is one of the many reasons Syrians took the streets in 2011 to try and change the way their country is being ruled. Iraq, on the other hand, has been criticized heavily over many years for the highly politicized and weak judiciary it operates. Both Human Rights Watch and Amnesty International have found the Iraqi judiciary system in need for urgent reform and is currently “flawed” per Amnesty.
Other options? Not so easy. It may be true that modern history have seen the rise of countries or wars Tribunals in places like Rawanda and former Yugoslavia, but their emergence has been delivered in an entirely different global political environment. No one seem to be talking about tribunals for war crimes and crimes against humanity in either Syria or Iraq.
The one option that world should strongly oppose is a bogus justice product, one that could be similar to a TV reality show which has been aired on an Iraq government owned media channel. Reported by the Mirror , the show presenter says the show “had been designed to show that those responsible for terrorism offences are brought to justice”. They simply take alleged convicted ISIS members to meet families of bombing victims or ask those convicted to act back how they operated an attack.