Om IS och internationell straffrätt
Sammanfattning: ISIS has committed horrible crimes to people in their “caliphate”, especially towards ethnic minorities and women. Their actions are according to the UN Independent Commission of Inquiry considered to constitute crimes against humanity, war crimes and genocide. This essay analyses the possibilities for the international criminal system to investigate and prosecute members of ISIS who have committed the above-mentioned crimes. According to the theory about retributive justice it is vital to punish these individuals because their morally despicable actions deserve it. The punishment also works as a deterrence. Both ways of justifying punishment are represented in international criminal law, the idea is to create retributive justice and deterrence irresectable citizenship, territorial boundaries and political motives. The ICC has jurisdiction to investigate the type of crimes committed by ISIS. However, since Syria is not a part of the Rome statute the court will most likely lack jurisdiction without a referral from the UN security council. The security council has previously stopped a resolution giving the ICC right to investigate the crimes carried out by ISIS in Syria. The possibility to create an ad hoc-tribunal exists based on the UN charter. Creating and ad hoc-tribunal is within the authority of the security council, but they will most likely be prevented to act due to the lack of political unity. National courts can use their jurisdiction according to the active personality principle and universal principle to put ISIS members to justice. The practice of universal jurisdiction is in most cases up to the states themselves to decide. Prosecuting crimes committed in another country is difficult when it comes to providing evidence and especially difficult in this case since Syria is still at war. When ISIS-members who have committed horrendous crimes might go unpunished, retributive justice and deterrence will not be achieved. The mission to create a safer world by providing justice is therefore not accomplished.
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