ISIS as a Joint Criminal Enterprise Part I: Reinvigorating JCE for the Prosecution of Foreign Fighters

[Merlina Herbach holds an LLM in International Law from the University of Edinburgh, has worked at the International Nuremberg Principles Academy and is currently a Legal Fellow with the Syria Justice and Accountability Centre (SJAC); Roger Lu Phillips is the Legal Director of SJAC, a former Legal Officer at the ECCC and ICTR and Adjunct Lecturer of International Criminal Law at the Catholic University of America.]

Last week, Alexanda Kotey, one of the ISIS ‘Beatles’, pleaded guilty in a U.S. courtroom to multiple counts of hostage taking of several American citizens as well as material support for terrorism in Syria. It is a promising development, but falls short of addressing a much larger problem. Despite repeated calls for repatriation, thousands of ISIS fighters and affiliates continue to be held in Northeast Syria. Some have been sent to Iraq, where they are sentenced to death or long prison terms after 15-minutes trials. A relatively small number were repatriated or voluntarily returned to their home countries for prosecution when ISIS lost its territory in Iraq and Syria. However, thousands of ISIS affiliates who are detained in Northeast Syria were captured by coalition forces at the close of hostilities in 2018 and, in some cases, there is little concrete evidence of their participation in specific crimes. As a fallback, membership in ISIS or material support for terrorism charges are available in a number of jurisdictions – though not in others. Sentences for such charges are quite short and may not sufficiently punish some of the conduct to which ISIS affiliates contributed. For example, some detainees were members of the Hisbah, or religious police, whose responsibility was to enforce strict religious edicts, including imposition of torture (such as 80 lashes for drinking alcohol or hand amputation for theft) or death (for such offenses as blaspheming God). While there may not be specific evidence available as to their imposition of particular penalties, there may be proof of their participation in the Hisbah. In this and other circumstances, joint criminal enterprise may more accurately represent their degree of participation and permit fair sentencing.

There are a number of discussions as to the proper venue to prosecute ISIS fighters. The coalition-supported SDF in Northeast Syria has put forward one proposal. Whereas there is some support in international quarters for a specialized court located in the region. Whichever venue is adopted, a legal schema must be identified that will both capture the full magnitude of criminality and respect human rights norms, including the nullum crimen principle. Evolved from the jurisprudence of the post-World War II tribunals and the mode of liability of Joint Criminal Enterprise (JCE) may permit international(ized) tribunals or domestic courts to hold all ISIS affiliates accountable for the atrocity crimes committed by the group.

Establishment of a ‘Caliphate’

There are three forms of JCE [pp. 111-114]. While they differ in certain subjective requirements relating to the suspect’s mens rea (mental element), their common characteristics [paras 466, 467] are a plurality of persons with a shared common plan that involves the commission of crimes [para. 418]. To qualify as a group for the purposes of a JCE, it is not necessary to name and identify every single member of the group. It is rather sufficient to identify certain military or administrative sub-entities [para. 156].

ISIS consisted of a plurality of persons, including certain identifiable individuals and members of military or administrative sub-entities such as local fighters and foreign fighters. Internal ISIS documents show that the group was divided into different administrative sub-entities to which one was attributed to depending on location and task.

Regarding ISIS’ common plan, its leaders and members repeatedly propagated the establishment of a so-called ‘Caliphate’, a state governed by Islamic law. To reach this goal and expand the geographical scope of the Caliphate in Iraq and Syria, ISIS and its predecessor groups used violence since at least the early 2010s. Various domestic courts have found that crimes committed by ISIS fighters amongst others contribute to crimes against humanity and war crimes. For example, a former ISIS fighter is also currently on trial in Germany for counts of genocide against the Yazidis. Documentation by the UN Independent International Commission of Inquiry on the Syrian Arab Republic (COI) and the UN Investigative Team to Promote Accountability for Crimes Committed by Da’esh/Islamic State in Iraq and the Levant (UNITAD) also indicates that ISIS committed genocide against the Yazidis.

More specifically, for an accused to be held liable for crimes committed by the members of the JCE pursuant to JCE type I, s/he must have contributed to the JCE by acts or omissions which furthered the common purpose of the JCE [para. 110] and intended the result.

A more in-depth analysis of ISIS’ structure and activities, coupled with documentation provided by the COI and UNITAD, facts established by various courts and international scholars, provide a strong indication that ISIS fulfilled the basic elements of a JCE I where co-perpetrators share the intent to commit certain crimes [para. 196]. Even if the ISIS organization was too compartmentalized to constitute a single JCE, each administrative subdivision (such as the Hisbah) might be considered a JCE.

The Caliphate as a Concentration Camp – JCE II

Within Syria and Iraq, ISIS also controlled a significant geographic territory in which it imposed its vision of Sharia imposing harsh punishments for minor infractions and depriving inhabitants of universally recognized human rights. ISIS strictly limited movements and prohibited any departures, including members of ISIS. Would such a system of mistreatment qualify as a JCE II – the so-called ‘concentration camp’ or ‘systemic’ JCE [paras 202, 203]?

This type of JCE is characterized by a high degree of organization resulting in the existence of either one big structural entity or several sub-entities. These entities do not necessarily have to be concentration camps, they can also be prisons or other entities that provide the structural framework for a “system of ill-treatment” [para. 182] in furtherance of the common plan. A person’s knowledge of the system of ill-treatment and intent to support this system are required to be held accountable as a participant in the JCE. According to international jurisprudence, an accused’s contribution to a JCE II need not be significant nor substantial [paras 97, 98]. This means that the mere presence (except for occasional visitors) of a person in an organizational entity together with his/her knowledge of the system of ill-treatment and intent to further this system entail liability. Of particular note here, the Co-prosecutors of the Extraordinary Chambers in the Courts of Cambodia argued that all of Cambodia was one large system of ill-treatment [pp. 121, 122] due to the overall degree of organization established by the Khmer Rouge. Although this argument was not considered at trial, a similar argument could be made that ISIS’s Caliphate was a system of ill-treatment supporting JCE II liability.

ISIS’s organizational structure shows that it was divided into different administrative units based on geography such as country, region, and city. Each of these entities furthered the common purpose of ISIS by creating a system of ill-treatment involving the crimes laid out above. A suspect’s continuous presence in one of the territories – be it as an active fighter, a member of the Hisbah, or a person running a household with slaves – implicates the suspects’ knowledge of ISIS’ system of ill-treatment, as the ill-treatment can be seen in all aspects of life. This argument is also supported by internal ISIS documents, showing a highly organized entity with, inter alia, a human resources section that registered new recruits based on their first duty station. Units such as Hisbah, the ‘moral police’, controlled every aspect of the lives of people residing in ISIS-controlled areas. Although the geographical range of the area under ISIS’ control was subject to frequent changes, the group’s leaders always sought recognition of the Caliphate as a state, referring to the high degree of administration and organization.

Propaganda and Foreseeable Terror Attacks – JCE III

One scholar has argued that spreading ISIS ideology through social media also contributes to crimes committed by ISIS in furtherance of its common purpose, and consequently makes the doctrine of JCE III applicable. Charging ISIS propogandists for the commissions of crimes through a JCE III would permit accountability for terror attacks committed in Europe and elsewhere outside ISIS’ core territory in Syria and Iraq. ISIS members who participated in crimes arising from the common purpose and foresaw the risk of such terror attacks being carried out could be held accountable under JCE III.

However, the foreseeability requirement [p. 550] is neither settled by jurisprudence nor codified. Whether this approach would be confirmed at trial or appeal is a risky proposition. Further, the doctrine of JCE III is often criticized [ibid.] for being overly inclusive and lowering evidentiary thresholds for linking members of a group to crimes falling outside the common purpose. While jurisprudence from ICTs generally acknowledges that individuals who are remote from the core JCE or crime scene [paras 112, 113] can contribute to the JCE’s common plan, it would be a bridge too far to subsume ISIS supporters outside Syria or Iraq spreading propaganda on the internet within any form of JCE [paras 227, 228]. This argument equally applies in relation to ISIS, in that terror attacks outside Syria and Iraq do not further the common purpose of creating a Caliphate.

In any event, most countries have adopted terrorism laws that criminalize recruitment, proliferation, and monetary support of foreign terrorist groups. Individual ISIS supporters outside Syria and Iraq can therefore be held accountable with existing terrorism laws which are regularly applied by domestic courts. [In the second part to this piece, we address the use of JCE to hold accountable women who have committed crimes as participants in a support network for ISIS.]