International Criminal Court Jurisdiction Over ISIS Leaders

Edited by Will Foster

In early July 2022, the U.S. military killed the top Syrian leader of the Islamic State of Iraq and Syria (ISIS) in a drone strike in northwestern Syria. [1] While the U.S. has continued to destroy ISIS militarily, many international observers have called for the prosecution of certain ISIS leaders before the International Criminal Court (ICC). ISIS, as well as other major terrorist groups, has committed acts that seem to fall under the international law definitions of crimes against humanity, or even genocide, which are among the crimes that the ICC prosecutes. [2]

For instance, in a report released in 2016, the United Nations-mandated Independent Commission of Inquiry on Syria declared that ISIS was committing genocide against the Yazidis. [3] The Commission even called upon the U.N. Security Council to refer the situation to the ICC. [4] Yet whether the ICC has legal jurisdiction to prosecute ISIS leaders for crimes against humanity and genocide remained unsettled. In fact, the ICC never did initiate prosecutions against ISIS leaders.

So, does the ICC have jurisdiction to prosecute ISIS leaders for crimes against humanity or the crime of genocide? The answer to this question depends upon a number of factors, and the status of some of those factors is still not completely clear. However, on the basis of applicable international law and the available information about the nationality status of ISIS leaders, it appears that, under the Rome Statute, the ICC does not at this time have jurisdiction over many ISIS leaders — although it may have jurisdiction over some on the basis of their nationality. However, certain possible actions on the part of the U.N. Security Council, the Iraqi and Syrian governments, and even ISIS itself could bring more ISIS leaders under the jurisdiction of the ICC.

In order for the ICC to have jurisdiction to prosecute an individual for an alleged crime, a number of requirements, laid out in the Rome Statute, must be met. The Rome Statute — signed at the 1998 Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court in Rome — is the multilateral treaty that established and defines the ICC. [5] Currently one hundred and twenty-three countries are parties to the ICC, having signed and ratified the Rome Statute. [6] Those countries not party to the Court include the United States, China, Russia, Israel, Syria, and Iraq. [7]

When considering questions about ICC jurisdiction, it is important to remember that the purpose of the ICC is to complement, and not usurp, national criminal jurisdictions, as is stated in the Preamble to the Rome Statute. [8] Thus, even when the ICC can have jurisdiction over certain situations, whether criminal prosecution at the national level would be more appropriate is always a consideration.

Aside from that issue, one of the aforementioned requirements is that the alleged wrongdoing must fall under the definition of one of the crimes over which the ICC has jurisdiction, pursuant to Articles 5-8 and 8 bis of the Rome Statute. [9] According to Article 5 of the Rome Statute, the ICC’s jurisdiction is limited to the crime of genocide, crimes against humanity, war crimes, and the crime of aggression, which are each defined, respectively, in Articles 6, 7, 8, and 8 bis of the Statute. [10]

The Rome Statute defines the crime of genocide as any of the following acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”: killing; causing serious bodily or mental harm; inflicting “conditions calculated to bring about … physical destruction in whole or in part”; acting to prevent births; or transferring the children of one group to another group. [11]

The 2016 report by the Independent Commission of Inquiry on Syria concluded that ISIS had committed the crime of genocide against the Yazidis. [12] ISIS had intentionally killed hundreds of Yazidis as part of an attack on Singar, an Iraqi town that was home to the majority of the world’s Yazidi population, and had committed many other acts against the Yazidis, including beatings, sexual violence, enslavement, forcible transfers, and cutting off food, water, and medical supplies. [13] The report also claimed that “[t]he public statements and conduct of ISIS strongly indicate that ISIS intended to destroy the Yazidis of Sinjar, composing the majority of the world’s Yazidi population, in whole or in part.” [14] Also, while some of the Yazidis identify themselves as ethnic Kurds, rather than as their own distinct ethnic group, most of them identify themselves as a distinct ethnoreligious group. [15] For these reasons, one could make a very strong argument that ISIS’s actions against the Yazidis constitute the crime of genocide, as defined by the Rome Statute. [16]

Moreover, even if one thinks that the Commission’s application of the Rome Statute’s definition of genocide is not strict enough or that the Yazidis are not their own distinct ethnic group, ISIS’s action toward them could still fall under the Rome Statute’s definition of crimes against humanity. [17] Article 7, paragraph 1 of the Statute defines “crimes against humanity” as “any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” [18] These acts include murder, enslavement, deportation or forcible transfer, torture, rape, and sexual slavery, among others. [19] This list of acts also includes, “Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender … or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the [International Criminal] Court.” [20]

The actions that ISIS has carried out against the Yazidis fit within many of the elements in this list, as do their actions at many other times against other groups, such as Christians. Their actions of these kinds have been widespread and systematic. The Rome Statute also further expounds upon how it defines “attack directed against any civilian population” in Article 7, paragraph 2(a), describing it as “a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.” [21] ISIS’s actions that fall into the above list have, in many cases, been committed against civilian populations, and they have certainly committed such acts against certain groups repeatedly.

However, there has been some debate over whether ISIS’s terrorist actions fulfill the “pursuant to or in furtherance of a State or organizational policy to commit such attack” clause, mentioned above. [22] ISIS has demonstrated that their attacks are “in furtherance of” some kind of “policy to commit such attack.” However, there has been debate over whether they fulfill the remainder of this clause. While it is largely accepted that ISIS is not a “State” under the international law definition, there has been debate over ISIS’s status as an “organization” under the Rome Statute. [23] However, writings from the International Law Commission (ILC) and precedent from a Pre-Trial Chamber of the ICC provide guidance for interpreting the mention of “State or organizational policy” in Article 7, paragraph 2 of the Rome Statute. [24]

In a 1996 report on their work drafting the Rome Statute, the ILC included a discussion of the then-potential Statute’s definitions of crimes against humanity and its potential requirement that to meet the definition the crime must, among other things, be “instigated or directed” by a Government, organization, or group. [25] In this discussion, the ILC stated that “[t]he instigation or direction of a Government or any organization or group, which may or may not be affiliated with a Government, gives the act its great dimension and makes it a crime against humanity.” [26] This shows that the drafters of the Rome Statute considered that the instigating group of potential crimes against humanity did not necessarily have to be affiliated with the government of a nation state in order for their crimes to fall under the Rome Statute’s definition of crimes against humanity.

Moreover, a 2010 Pre-Trial Chamber of the ICC on the “Situation in the Republic of Kenya” stated that “the determination of whether a given group qualifies as an organization under the Statute must be made on a case-by-case basis.” [27] The Chamber then went on to lay out factors that, among others, should be considered in making this determination:

(i) whether the group is under a responsible command, or has an established hierarchy;

(ii) whether the group possesses, in fact, the means to carry out a widespread or systematic attack against a civilian population;

(iii) whether the group exercises control over part of the territory of a State;

(iv) whether the group has criminal activities against the civilian population as a primary purpose;

(v) whether the group articulates, explicitly or implicitly, an intention to attack a civilian population;

(vi) whether the group is part of a larger group, which fulfills some or all of the abovementioned criteria. [28]

In ICC cases, a Pre-Trial Chamber determines whether the ICC has jurisdiction over a case before it and determines whether or not to allow the Prosecutor to pursue investigating the case. [29] As the aforementioned 2010 Chamber stated that the determination of jurisdiction should be made on a case-by-case basis, and as ISIS can be said to fulfill the first five of the above considerations the Chamber provided, this suggests a Pre-Trial Chamber could determine that ISIS qualified as an “organization” for the purposes of Article 7, paragraph 2(a) of the Rome Statute, thus fulfilling at least that specific requirement for ICC jurisdiction. [30]

The 2016 report of the Independent Commission of Inquiry on Syria also concluded that ISIS had committed war crimes as defined in Article 8 of the Rome Statute, in addition to genocide (Article 6) and crimes against humanity (Article 7). [31] Thus, the evidence points to the conclusion that the crimes ISIS has committed may very well fall under the definition of at least one, and possibly as many as three, of the crimes over which the ICC has jurisdiction.

Still, there are other requirements in the Rome Statutes that must also be met for the ICC to have jurisdiction to prosecute ISIS leaders. According to Article 12, paragraph 2 of the Rome Statute, in order for an alleged crime that is included under Articles 5-8 or 8 bis of the Rome Statute to be under the jurisdiction of the ICC, the alleged crime must have been committed within the territory of, or aboard a vessel or aircraft registered with, a state that is a party to the ICC, or the individual accused of the crime must be a “national” of a state that is a party to the ICC. [32] As the vast majority of ISIS’s gravest crimes, including their actions against the Yazidis, have been committed in Syria and Iraq, neither of which are parties to the ICC, the location of the commission of these crimes does not create ICC jurisdiction. [33] While terrorist actions in many countries around the world have also been linked to ISIS, these actions mostly do not rise to the level of the specific crimes over which the ICC has jurisdiction, discussed above. [34]

However, even if the location of the commission of an alleged crime does not fulfill the Rome Statute Article 12 requirement for ICC jurisdiction, it is still possible that the nationality of the individual accused of the alleged crime could fulfill this requirement, if the individual is a national of a state that is a party to the ICC. [35]

The concept of nationality has not been clearly defined in international law, despite frequent references to it in such law. In fact, the terms “nationality” and “citizenship” are often used interchangeably in international law, despite the fact that they are two distinct concepts and are distinguished from each other in the domestic law of several nations. [36] “Nationality” is commonly considered to be linked to the state in which an individual was born, but in many cases just being born in a state may not by itself be sufficient for an individual to be legally considered a national of that state. Additionally, it is possible for an individual to, at birth or later in life, become a national of a state other than the state in which they were born, and in some cases, one’s nationality may be able to be officially changed during a person’s lifetime. [37] In many countries’ domestic law, there is the legal concept of a “national non-citizen,” while there is seldom if ever the concept of a “citizen non-national.” Thus, despite the ambiguity surrounding the term “nationality” in international law, it can usually be safely assumed that a citizen of a nation is also a national of that nation, although the reverse is not necessarily the case.

Thus, one can reason that if an ISIS leader is a citizen of a state that is a party to the ICC, then they are also a national of that state and thus may be brought under the jurisdiction of the ICC, if they are suspected to have committed one of the crimes over which the ICC has jurisdiction. This issue is often complicated by the fact that nations have been known to revoke the citizenship of certain of their citizens when they find that they have joined ISIS. [38] There is also the question of whether an individual can renounce their own citizenship, and if so, whether this has happened among ISIS members or leaders. [39]

Still, there are cases in which even high-ranking ISIS leaders seem to have retained their citizenship, including in a few cases citizenship of Western nations. For instance, in a 2013 statement from the U.S. Federal Bureau of Investigation (FBI) noting that Ahmad Abousamra, thought to be a member of ISIS, had been added to the FBI’s list of most wanted terrorists, the FBI stated that “Abousamra is of Syrian descent and has dual citizenship in the United States and Syria.” [40] This suggests that Abousamra had retained his United States citizenship, despite being among the FBI’s most wanted terrorists. This case would not have fulfilled the Rome Statute Article 12 requirement for ICC jurisdiction as neither the United States nor Syria were parties to the ICC. [41] It is also not known whether Ahmad Abousamra is among the ISIS leaders behind the acts in Syria and Iraq that could be considered to rise to the level of the crimes that fall under ICC jurisdiction. However, this still provides an instance of an individual considered to be a major terrorist, even with links to ISIS, seeming to retain citizenship in a nation other than Syria and Iraq. This raises the question of whether there are current ISIS leaders who retain citizenship of nations who are parties to the ICC.

Moreover, apart from citizenship, because many ISIS leaders do not seem to be considered stateless people, they still seem to be considered nationals of certain countries, as statelessness is defined in international law as the condition of not being considered a national of any state. [42] However, the majority of ISIS leaders are nationals of Syria or Iraq, with several others being nationals of Egypt, Yemen, Qatar, or Saudi Arabia, none of which are parties to the ICC, meaning that the ICC would not have jurisdiction over them for actions committed in these countries or within other countries not party to the ICC. [43] Still, there may be a few who are nationals of countries such as Jordan, and possibly even some European countries, and if this is the case, this could open up possible avenues for ICC jurisdiction, as Jordan and the majority of European countries are parties to the ICC. [44]

However, even if this is the case, these leaders would have had to have played a major role not just in any crime committed by ISIS, but in a specific type of crime over which the ICC has jurisdiction. Moreover, even if this were found to be the case, the majority of the highest ranking ISIS leaders, who are likely to be the ones primarily behind the commission of ISIS’s gravest crimes, are Iraqi and Syrian. This would mean that the ICC, if it tried to use nationality as a way to give it jurisdiction over certain ISIS leaders, could find itself only having jurisdiction to prosecute a few individuals who are not those most central to the commission of the crimes the ICC would be considering. If this were the case, it could be more appropriate for any prosecutions to occur at the national level, as international prosecutions of such individuals alone might not be the most appropriate or just approach in such a case.

Thus, as the situation currently stands, the ICC does not have jurisdiction to prosecute the majority of ISIS leaders, due to the fact that the majority of ISIS’s gravest crimes have been committed within states not party to the ICC and the majority of ISIS leaders are not nationals of states that are party to the ICC. However, certain new developments could give the ICC jurisdiction to prosecute ISIS leaders. For instance, if ISIS were to expand their actions within states that are parties to the ICC to such levels that these actions came to fall under the Rome Statute’s definitions of the crime of genocide, crimes against humanity, or war crimes, this could bring these actions under the purview of ICC jurisdiction. [45]

Also, if Iraq or Syria were to agree to become a party to the ICC, this would give the ICC jurisdiction over crimes of genocide, crimes against humanity, and war crimes committed within their territory. [46] However, this would only give the ICC jurisdiction over crimes that were committed after the state became a party to the ICC. [47] Iraq or Syria could also voluntarily accept the exercise of ICC jurisdiction in a particular case by means of the process described in Article 12, paragraph 3 of the Rome Statute. [48] However, that such action will be taken by Iraq or Syria seems unlikely at this point.

However, there is one other way in which the ICC could gain jurisdiction over crimes of genocide, crimes against humanity, and war crimes committed by ISIS. Article 13 of the Rome Statute lays out the three different ways in which the ICC may begin to exercise its jurisdiction over the commission of a potential crime that falls within one of the four categories of crimes over which it has jurisdiction, pursuant to Article 5: (a) a potential commission of such a crime is referred to the Prosecutor by a State Party; (b) a potential commission of such a crime “is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations”; or (c) the Prosecutor initiates an investigation of a potential commission of such a crime. [49]

Paragraph 2 of Article 12 of the Rome Statute, which lays out the territorial and personal requirements for ICC jurisdiction, begins with the words, “In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if,” before going on to list the Article 12 requirements discussed above. [50] The exclusion of paragraph (b) of Article 13 means that referrals of potential crimes to the ICC Prosecutor by the U.N. Security Council are not subject to the requirements of Article 12, paragraph 2 in order for the ICC to have jurisdiction to prosecute them. This interpretation of Article 12, paragraph 2 was confirmed by the 2010 ICC Pre-Trial Chamber’s decision on the “Situation in the Republic of Kenya.” [51] As the Article 12, paragraph 2 requirements are the ones primarily blocking the ICC from having jurisdiction to prosecute ISIS leaders for major crimes, Security Council referral of such alleged crimes to the Court could give them jurisdiction to prosecute those crimes.

Thus, while the ICC currently does not have jurisdiction to prosecute most ISIS leaders, new developments, such as the expansion of ISIS’s activities into states party to the ICC, Iraq or Syria agreeing to join the ICC, or U.N. Security Council referral to the ICC of alleged crimes against humanity, genocide, or war crimes, could give the ICC jurisdiction to prosecute ISIS leaders in some cases. Jurisdictional issues such as these are among the many questions that relate to what role the ICC should play on the world stage and how that role can be reconciled with the role of domestic law and the principles of national sovereignty.

Sources:

[1] Phil Stewart and Idrees Ali, “U.S. military: ISIS leader in Syria killed in drone strike,” Reuters, published July 12, 2022, https://www.reuters.com/world/middle-east/isis-leader-syria-killed-us-strike-us-officials-say-2022-07-12/.

[2] Rome Statute of the International Criminal Court, United Nations Treaty Series, vol. 2187, No. 38544, Article 5 (1998).

[3] “UN Human Rights Panel Concludes ISIL is Committing Genocide Against Yazidis,” UN News: Global Perspective Human Stories, United Nations, published June 16, 2016, https://news.un.org/en/story/2016/06/532312-un-human-rights-panel-concludes-isil-committing-genocide-against-yazidis; United Nations Human Rights Council, “They came to destroy”: ISIS Crimes Against the Yazidis, June 15, 2016, https://www.ohchr.org/sites/default/files/Documents/HRBodies/HRCouncil/CoISyria/A_HRC_32_CRP.2_en.pdf, ¶ 100-165.

[4] “UN Human Rights Panel,” supra note 3.

[5] Beth Van Schaack and Ron Slye, A Concise History of International Criminal Law, Santa Clara Law Digital Commons: Faculty Publications/Faculty Scholarship, Santa Clara University School of Law, published January 1, 2007, http://digitalcommons.law.scu.edu/facpubs/626, 45.

[6] “State Parties to the ICC,” International Criminal Court Project, American Bar Association, accessed September 4, 2022, https://www.aba-icc.org/about-the-icc/states-parties-to-the-icc/.

[7] Ibid.

[8] Rome Statute, United Nations Treaty Series, vol. 2187, No. 38544, Preamble (1998).

[9] Rome Statute, United Nations Treaty Series, vol. 2187, No. 38544, Articles 5-8, 8 bis (1998).

[10] Ibid.

[11] Rome Statute, United Nations Treaty Series, vol. 2187, No. 38544, Article 6 (1998).

[12] United Nations Human Rights Council, “They came to destroy,” 2016, Summary.

[13] Id at ¶ 106-165.

[14] Id at ¶ 163.

[15] “Iraq, Yazidis,” Atlas of Humanity: Discovering the Cultural Diversity, accessed August 16, 2022, https://www.atlasofhumanity.com/yazidis.

[16] Rome Statute, United Nations Treaty Series, vol. 2187, No. 38544, Article 6 (1998).

[17] Rome Statute, United Nations Treaty Series, vol. 2187, No. 38544, Article 7 (1998).

[18] Rome Statute, United Nations Treaty Series, vol. 2187, No. 38544, Article 7, ¶ 1 (1998).

[19] Ibid.

[20] Rome Statute, United Nations Treaty Series, vol. 2187, No. 38544, Article 7, ¶ 1(h) (1998).

[21] Rome Statute, United Nations Treaty Series, vol. 2187, No. 38544, Article 7, ¶ 2(a) (1998).

[22] Josefine Blick, “Can ISIS Be Prosecuted in the International Criminal Court for Crimes Against Humanity?,” FIU Law Review, Florida International University College of Law, published March 30, 2018, https://law.fiu.edu/2018/03/30/can-isis-be-prosecuted-in-the-international-criminal-court-for-crimes-against-humanity/.

[23] “Is Isis A Country?,” World Atlas, accessed August 28, 2022, https://www.worldatlas.com/articles/is-isis-a-country.html; “Recognition Of A State Under International Law,” Law Corner, Unit of Capito Legal LLP, accessed March 17, 2021, https://lawcorner.in/recognition-of-a-state-under-international-law/#:~:text=Usually%2C%20every%20country%20is%20termed%20as%20%E2%80%98State%E2%80%99%20under,an%20international%20platform%20or%20in%20an%20international%20community; Montevideo Convention on Rights and Duties of States, The Seventh International Conference of American States, Article 1 (1933).

[24] Blick, “Can ISIS Be Prosecuted,” supra note 22.

[25] International Law Commission, Report of the International Law Commission on the work of its forty-eighth session, 6 May-26 July 1996, Official Records of the General Assembly, Fifty-first session, Supplement No.10, 1996, https://legal.un.org/ilc/documentation/english/reports/a_51_10.pdf, Article 18, ¶ 5.

[26] Ibid; Blick, “Can ISIS Be Prosecuted,” supra note 22.

[27] International Criminal Court, Pre-Trial Chamber II: Situation in the Republic of Kenya, March 31, 2010, https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2010_02409.PDF, ¶ 93; Blick, “Can ISIS Be Prosecuted,” supra note 22.

[28] International Criminal Court, Pre-Trial Chamber II, supra note 27.

[29] International Criminal Court, Presidency and Chambers, ICC-PIOS-FS-06-007-18_Eng, 2018, https://www.icc-cpi.int/sites/default/files/iccdocs/PIDS/publications/PresidencyandChambersEng.pdf, 2.

[30] International Criminal Court, Pre-Trial Chamber II, 2010, ¶ 93; Blick, “Can ISIS Be Prosecuted,” supra note 22; Rome Statute, United Nations Treaty Series, vol. 2187, No. 38544, Article 7, ¶ 2(a) (1998).

[31] United Nations Human Rights Council, “They came to destroy,” 2016, ¶ 100-173; Rome Statute, United Nations Treaty Series, vol. 2187, No. 38544, Articles 6-8 (1998).

[32] Rome Statute, United Nations Treaty Series, vol. 2187, No. 38544, Article 12, ¶ 2 (1998).

[33] United Nations Human Rights Council, “They came to destroy,” 2016, ¶ 109; “State Parties,” supra note 6.

[34] Tim Lister, et al., “ISIS goes global: 143 attacks in 29 countries have killed 2,043,” CNN World, updated February 12, 2018, https://www.cnn.com/2015/12/17/world/mapping-isis-attacks-around-the-world/index.html; Rome Statute, United Nations Treaty Series, vol. 2187, No. 38544, Articles 5-8, 8 bis (1998).

[35] Rome Statute, United Nations Treaty Series, vol. 2187, No. 38544, Article 12, ¶ 2(b) (1998).

[36] “Citizenship & Nationality,” International Justice Resource Center, accessed August 16, 2022, https://ijrcenter.org/thematic-research-guides/nationality-citizenship/; The Editors of Encyclopaedia Britannica, “Nationality: International Law,” Britannica, Encyclopaedia Britannica, Inc., published July 20, 1998, https://www.britannica.com/topic/nationality-international-law; United Nations High Commission on Refugees, Convention on the Reduction of Statelessness, 1961, https://www.unhcr.org/ibelong/wp-content/uploads/1961-Convention-on-the-reduction-of-Statelessness_ENG.pdf, Article 1, ¶ 1; “Certificates of Non Citizen Nationality,” Bureau of Consular Affairs, United States Department of State, accessed August 16, 2022, https://travel.state.gov/content/travel/en/legal/travel-legal-considerations/us-citizenship/Certificates-Non-Citizen-Nationality.html.

[37] “Citizenship vs. Nationality: What’s the Difference?,” Visa Nation, Inc., published June 13, 2022, https://www.immi-usa.com/citizenship-vs-nationality/.

[38] Megan Specia, “ISIS Cases Raise a Question: What Does It Mean to Be Stateless?,” New York Times, published February 22, 2019, https://www.nytimes.com/2019/02/22/world/middleeast/isis-shamima-begum-citizenship-stateless.html.

[39] Gianluca Mezzofiore, “Isis in Iraq and Syria: The Nationalities of the Islamic Jihad’s Foreign Legion,” International Business Times, published June 17, 2014, https://www.ibtimes.co.uk/isis-iraq-syria-nationalities-islamic-jihads-foreign-legion-1453093.

[40] “Wanted Fugitive Ahmad Abousamra Added to the FBI’s Most Wanted Terrorists List,” FBI Boston, Federal Bureau of Investigation, published December 18, 2013, https://archives.fbi.gov/archives/boston/press-releases/2013/wanted-fugitive-ahmad-abousamra-added-to-the-fbis-most-wanted-terrorists-list.

[41] Rome Statute, United Nations Treaty Series, vol. 2187, No. 38544, Article 12, ¶ 2 (1998); “State Parties,” supra note 6.

[42] United Nations Development Group, Statelessness: Excerpt from the UNDG Guidance Note on Human Rights for Resident Coordinators and UN Country Teams, 2017, https://unsdg.un.org/sites/default/files/2020-06/Statelessness.pdf.

[43] Callum Paton, “Full List of ISIS Most Wanted and Dangerous Commanders Published,” Newsweek World, Newsweek Digital, published February 6, 2018, https://www.newsweek.com/isis-most-wanted-commanders-list-published-800293; “State Parties,” supra note 6.

[44] Paton, “Full List of ISIS,” supra note 43; “State Parties,” supra note 6.

[45] Rome Statute, United Nations Treaty Series, vol. 2187, No. 38544, Articles 5-8, 12 (1998).

[46] Rome Statute, United Nations Treaty Series, vol. 2187, No. 38544, Article 12, ¶ 1 (1998).

[47] Rome Statute, United Nations Treaty Series, vol. 2187, No. 38544, Article 11, ¶ 2 (1998).

[48] Rome Statute, United Nations Treaty Series, vol. 2187, No. 38544, Article 12, ¶ 3 (1998).

[49] Rome Statute, United Nations Treaty Series, vol. 2187, No. 38544, Article 5, 13 (1998).

[50] Rome Statute, United Nations Treaty Series, vol. 2187, No. 38544, Article 12, ¶ 2 (1998).

[51] International Criminal Court, Pre-Trial Chamber II, 2010, ¶ 18.