ICC Registrar: There is legal basis for an international court

Registrar of the International Criminal Court (ICC) International Court of Justice Dominique Inchauspe spoke about the possible legal bases for an international court for ISIS trials.

Registrar of the International Criminal Court (ICC) and International Court of Justice at the Hague Dominique Inchauspe spoke to the ANF as he attended the international forum on ISIS held by the Rojava Strategic Research Center (Navenda Rojava a Lêkolînên Stratejîk - NRLS) in Amude, Qamishlo.

Dominique Inchauspe, who is also the scientific director of the French Criminal Law Encyclopedia, said as the international coalition against ISIS was founded under the lead of the US, it committed to the trial of ISIS members to be captured as well and that there is legal basis for the court to be set up.

Inchauspe said courts similar to the Nuremberg Tribunal, the Tokyo Tribunal, the court set up in Harusha for the war crimes in Rwanda and courts like Kosovo and Cambodia can be set up so ISIS gangs don’t go unpunished for the war crimes they committed, and the only requirement for the court is “the political will”.


“In international law, everything comes down to political will,” said Inchauspe and listed the following examples for courts around the world for similar matters: “The allies achieving victory over Germany led to the Nuremberg Tribunals, where laws previously not implemented came into practice regarding crimes against humanity. When the US defeated Japan, the Tokyo Tribunal was set up on the example of the Nuremberg Tribunals. This court was set up to put soldiers in Japan on trial and didn’t face any difficulty. A court was set up for Rwanda as well, not in Geneva or on Rwandan soil but in neighboring Harusha.”


Inchauspe said the setting up of such courts is dependent on the “political will” to do so: “The court in Kosovo set up for the crimes and criminals in Kosovo wasn’t set up on Kosovo’s laws, but rather Dutch law. For Cambodia or the crimes in Central Africa, courts were set up after additions were made to existing laws. I list these examples because I want to point out that if there is a political will, there is a way to do what is desired.”


Inchauspe said a United Nations Security Council (UNSC) resolution is necessary for the set up of courts to handle war crimes and criminals.

Inchauspe added that for the resolution to pass, the five permanent members of the UNSC must not veto the proposal but said there are also formulas to overcome a possible veto.

Inchauspe said: “Legally, for an international legal process a United Nations Security Council resolution is needed. This is not possible in case of a veto. I can say that one country I will not name can issue a veto. To overcome this difficulty, the law can be circumvented.”


Inchauspe said there is another formula in case of a veto in the UNSC and added that the only UN resolution on Syria that wasn’t vetoed dated 2014 can be implemented at that point.

Inchauspe said this 2014 resolution was what laid the legal foundation for the founding of the international coalition, and gave the coalition the authority to not only find ISIS members but to put them on trial as well.”


Inchauspe said: “We can use a previous resolution as a basis. The 2014 resolution could be used. This resolution was not vetoed. It gives coalition member countries the authority to not only find ISIS members but put them on trial as well. It could be said for an international court to be set up or a national court that exists. I believe there is legal basis. The UN resolution no.2070 could be used as a foundation. Alliance powers, the current coalition forces, can prepare the practicality of the resolution and convict terrorism.”


Inchauspe said the Nuremberg and Tokyo Tribunals were founded for similar purposes and aimed to prevent a repeat of greater crimes: “Nuremberg and Tokyo tribunals were set up because the Allies saw the magnitude of the crimes by the Germans and the Japanese, and felt the need to respond in a legal process of similar magnitude. For ISIS it is necessary to determine whether such grand crimes were committed. When this question is asked we can see that even greater crimes have been committed.”


“I believe there needs to be a response equal to the legal magnitude of the incident. Like I said, a legal procedure must be started. On paper, there are legal mechanisms and precedent for it, but we are facing an extraordinary case,” said Inchauspe and added that the coalition was given the authority with another resolution in 2015 as well: “I don’t know, I am in favor of an international court. But the Resolution 2269 dated 2015 states that ISIS trials should be made within international law by coalition forces. There is an open path there too. This is a matter of political will, and I don’t think there is anything in the way of the court being set up here.”


Inchauspe said another formula is the example of Cambodia and Central Africa. According to this formula, local courts can be given authority. He continued: “This is another possibility. We saw what happened in Cambodia. The negotiations took 8 months. In the end the Cambodian parliament set up special courts, similar to what we will vote on in France. In these courts there were one local and one international judge each. It wasn’t that complicated legally either. It was a similar process in the Central African Republic. A similar method can be used here too. This shouldn’t be too complicated. A local court can go through an international procedure. But I believe special courts will achieve better results.”


Inchauspe said ISIS continues to commit war crimes in Rojava and around the world, and setting up a court like the Nuremberg Tribunals for ISIS members “swill reduce desire to join the organization and for ISIS to be revived.”


ICC International Court of Justice Registrar Inchauspe continued his assessment of the matter with the example of the Nazi trials. He mentioned the Adolf Eichmann example and said: “The Eichmann proceedings were the first court in 1961. It was 20 years after the war, and many pieces of information were gathered regarding Nazi practices. This allowed to inform the public. Especially for younger German generations. Older generations hadn’t fully told the younger ones about what happened exactly. German people aged 45 to 65 didn’t really know in detail what happened, which was something that could have prevented even younger generations from learning what happened and stopping them from ever happening again.”


ICC Registrar Dominique Inchauspe repeated that the founding of the courts is possible through political will again and concluded with: “In a court, in such a large scale court, there is symbolic and historic aspects as well as the legal one. If ISIS was confined to Syria alone, I wouldn’t favor the international court. But ISIS is the reincarnation of evil and terror, and as such, must be tried at an international court. They attacked many places around the world and they continue to attack. So, our legal response should be just as large scale.”