Recently, there was a piece by Rob Cryer on the OUP blog that analysed the potential criminal liability of Daesh and its members in relation to war crimes, crimes against humanity and genocide, see here.
A response to this piece was offered by Sergei Sayapin on EJIL talk re: the suitability of instituting a ‘hybrid’ tribunal for Daesh. This would be substantively based on ‘islamic’ international criminal law.
This was interesting for three main reasons.
- I wonder whether there is such a thing as ‘islamic’ international criminal law. I don’t think there really can be given the basic fact of international law being identifiable through the consent of states. Would definitely need to read F. Malekian, The Principle of Islamic International Criminal Law but don’t have the time!
- The cost of the tribunal would be enormous. This is based on the evidence of what the ICTY and ICTR cost. Hundreds of millions of dollars. Would this money be better spent rebuilding Syria? This is an issue for transitional justice in general. Are the benefits of international criminal justice worth it? Not sure that number of sentences in ICTY and ICTR make a dent in the criminal responsibility of actors these two conflicts.
- Linked to no. 1 – would not the Sunni/Shia divide in Islam, and in the ME in general, preclude the possibility of an ‘agreed’ hybrid tribunal. Insofar as the tribunal is ‘Shia’ based – this could alienate supporters of Daesh such as Saudi Arabia.
For these reasons, I think an ICC focused transitional justice would be better.