Prosecuting ‘Jihadi John’

International court could try foreign fighters

Gruesome beheading videos and online calls to join the caliphate have become hallmarks of ISIL, intimidating its enemies and fuelling recruitment efforts. But the Western jihadis whose social media savvy has helped launch ISIL into the global spotlight could one day find themselves facing justice in the International Criminal Court thanks to a legal backdoor that would see their tweets and Facebook posts used against them.

While the ICC has prosecuted war crimes and crimes against humanity around the world since it was founded in 2002, it has not been able to investigate war crimes in Syria and Iraq because they are not among its 123 member states. For the court to investigate a conflict in a non-member country, it requires a referral from the UN Security Council. In the case of Syria, Russia and China have blocked several Western-supported resolutions that would have given the court the ability to intervene.

That leaves the court with one potential option to gain jurisdiction: investigating and prosecuting fighters who are citizens of member countries such as Jordan, Tunisia and even Canada, but have travelled to the region to join the fight.

The potential for finding viable cases to prosecute are significant. The U.S. National Counterterrorism Center estimates there are about 20,000 foreign fighters there now. And given the high profile of some Western fighters on social media, the chances of finding a good case to investigate are high.

One possible example is the case of Mohammed Emwazi, better known in the media as “Jihadi John,” a British fighter seen in the beheading videos of several Western hostages. Although the actual murders take place off camera, his repeated presence in the widely shared videos and the testimony of released hostages could create a strong case against Emwazi for war crimes. Any prosecution could not occur until Emwazi is in custody, but ISIL’s media strategy has already provided much of the evidence that could ultimately be used against him by the ICC.

In an interview in November 2014 with the German newspaper Sueddeutsche Zeitung, the court’s chief prosecutor Fatou Bensouda suggested the court is considering using this backdoor approach. It would be an unprecedented move but one that some legal experts believe is necessary to combat the rise of extremist groups and deter foreign fighters from joining the battle.

“The message that really needs to get out to members of (ISIL) is that accountability is coming,” said Jennifer Trahan, associate clinical professor of global affairs at New York University. “If the prosecutor has enough to go forward on foreign fighters, it should be pursued because the court currently has jurisdiction.”

According to Canadian independent researcher and consultant Mark Kersten, investigating foreign fighters would also serve the court well in its aims to bring accountability for the worst international crimes. “The ICC wants to get involved in Syria and wants to be seen as a relevant and positive actor addressing the atrocities being committed in the civil war,” he says.