Thread by @mariekedehoon

1/ Legal advice by Dutch govt's external advisor @ANollkaemper on the legality of a multilateral tribunal to prosecute #ISIS. Concludes that such a tribunal will unlikely be able to effectively and legitimately prosecute ISIS members. I'll translate: rijksoverheid.nl/documenten/rap…

2/ The q posed was on legal limitations and what conditions would be required to establish a tribunal in absence of a UN mandate and consent by #Syria or #Iraq. This is not about domestic prosecution of ISIS crimes such as in Iraq, Syria or Eur states,within existing legal orders

3/ The advice explains that such national prosecution would have legal and practical advantages vis-a-vis international prosecution. Important to focus on int'l cooperation to support domestic pros, possibly with a complementary int'l tribunal.

4/ And important that in that int'l cooperation the focus is on ensuring that international law is followed, such as rights to fair trial, guarding against death penalty, and providing consular support.

5/ Another key issue is the importance of consent and effective cooperation by #Iraq and #Syria with any form of int'l prosecutions, for jurisdiction over nationals of states other than those involved in the tribunal and access to perpetrators, witnesses and evidence.

6/ @ANollkaemper moreover questions whether 'membership' of #ISIS is a good criterion rather than people's actions. Plus, how to deal with people that were/became members of other groups. Principally, prosecuting only 1 side of a conflict is problematic and would harm legitimacy

@ANollkaemper 7/ Therefore, if a tribunal is established, it is advised to have a mandate over all parties to the conflict. The balancing act here will be between generating broad support for the legitimacy of the tribunal and getting a broad mandate for again the legitimacy of the tribunal.

@ANollkaemper 8/ The advice is also critical on the amount of goals associated with this tribunal, raising unrealistic expectations. Some goals are unrealistic by themselves, others contradicting in what they would require from the tribunal. Goals need to be brought back to what's realistic.

@ANollkaemper 9/ Regarding the idea that a tribunal would prevent return of jihadi's to their home lands, Nollkaemper explains that this violates the right to return to one's own state; and a Trib would only temporarily solve this since it'll have a relatively low sentence for mere membership

@ANollkaemper 10/ Advice moreover explains that if UNSC members oppose (such as Russia) a UNSC based tribunal (such as ICTY and ICTR) is not possible. It would be more alike Nuremberg Trib, based on a multilateral treaties of 'willing states', at least two states and without a max number.

@ANollkaemper 11/ Legally, not many hurdles to drafting such a treaty. But with regard to its legitimacy, important to include many states, including in the region and states involved in the conflict, so that it can try to be credible when ruling on behalf of the 'international community'

@ANollkaemper 12/ Advice also discusses the option of Art 22 UN Charter, but calls that a stretch also on basis of ICJ AO ruling on the matter (1954). In any event, it would also not overcome the problem of non-cooperation if Syria and Iraq don't consent. UNGA could support a tribunal though

@ANollkaemper 13/ Regarding request for support by Syrian Democratic Forces for a Tribunal in NorthEast Syria, support would violate non-intervention principle to create a legal system within Syria (or Iraq) as long as it is not recognized as independent state and Syria/Iraq do not consent

@ANollkaemper 14/ Absent consent Syria/Iraq there won't be territorial jurisdiction, but tribunal could only function only on basis of (delegated) active nationality and universal jurisdiction. Active nationality limits to perpetrators w/ nationality of those states participating in tribunal >

@ANollkaemper 15/ Universal jurisdiction is also very limiting: only for the most responsible, and most states have limited (through their domestic law) the use of universal jurisdiction to those suspects of international crimes that are *on* their territory. (Remember Belgium 1993-2003..)

@ANollkaemper 16/ Even with support of UNITAD and IIIM question is whether (absent cooperation Syria/Iraq and given conflict situation) there'll be sufficient evidence to prosecute many individuals for genocide/CAH/war crimes to justify the significant financial/political resources it'll cost

@ANollkaemper 17/ That raises the q of including also crimes other than the 'international crimes', particularly membership of terrorist organization. Nollkaemper states that this is not possible under international law and refers to STL Appeal's Chamber and Control Council Law No 10 judgments

@ANollkaemper 18/ It would be possible by allowing the Trib to rule on the basis of national law. But then restricted to those nationals of states that have national laws that criminalize 'membership of terrorist organization'. Different rules for different defendants. Within one tribunal.

@ANollkaemper 19/ @ANollkaemper is critical about this option. 'Membership' is vague and doesnt distinguish between different roles and culpability of members, membership is very different from the severity of the international crimes that the Trib would also rule on, and sentences will be low

@ANollkaemper 20/ Advice moreover calls for cooperation with Syria and Iraq, IIIM, UNITAD as well as SDF for access to evidence and suspects. It advises against trials in absentia. And draws attention to sufficient and stable financial resources to ensure effectiveness but also independence

@ANollkaemper 21/ In short, Nollkaemper's advice to the Dutch government on establishing an international tribunal to prosecute #ISIS members absent UN support or consent of #Syria and #Iraq is very critical (read: negative, and I fully agree), other than as complementing national prosecutions