Prosecuting ISIS

33 Pages Posted: 14 Dec 2014 Last revised: 1 Oct 2015

See all articles by Gerald Waltman

Gerald Waltman

University of Mississippi - School of Law

Date Written: October 17, 2014


The Islamic State of Iraq and Syria (“ISIS”) is a militant organization that has committed crimes against humanity, war crimes, and crimes against foreign citizens in its pursuit of creating a caliphate. This article asserts that ISIS has committed criminal acts and proposes the proper way to prosecute the heinous crimes that the ISIS has committed against the Iraqi and Syrian peoples and the foreign civilians in ISIS’s territory. The first step in prosecuting ISIS for its crimes is to identify the nature of the organization. The second step is to identify the crimes that ISIS has committed and the appropriate venues for prosecuting said crimes.

Part I provides a brief synopsis of the relevant international law. Part II establishes the identity of ISIS, describes its crimes, and analyses its claim to statehood. Part III explores the possibility of prosecuting ISIS’s international crimes before the International Criminal Court, ad hoc international tribunals, or the domestic courts of Iraq and Syria. Part III proposes that the United Nations establish an international tribunal with Iraqi and Syrian representatives to prosecute ISIS’s international crimes-specifically crimes against the law of war and crimes against humanity.

Part IV argues that prosecutions based on the passive personality principle should take priority over territorial or active personality jurisdiction because the offenders harmed their victims because of the victims’ nationality and used the victims as hostages to compel their home countries. The United States’ and other countries’ interest in protecting its citizens abroad and prosecuting offenses against their citizens targeted because of their nationality supersedes the interests of Iraq or Syria in preserving order within their borders through territorial jurisdiction, especially considering the questionable status of Iraq’s or Syria’s abilities to effectively exercise jurisdiction or prosecute over ISIS’s offenses against foreigners.

The passive personality principle should also take primacy over any interest another State has in exercising active nationality jurisdiction over its citizens’ offenses abroad. While it is novel to exercise passive personality in preference to both territorial and national jurisdiction, such an application is appropriate when the offenders victimize the victims because of their nationality, which would cause the passive personality State’s interest in prosecuting the offenses supersedes the interest of the territorial or active nationality State.

Keywords: ISIS; Islamic State of Iraq and Syria; passive personality jurisdiction; international crimes; crimes against humanity; war crimes; ad hoc tribunals; hostage; terrorism; International Criminal Court; United Nations; Security Council

Suggested Citation

Waltman, Gerald, Prosecuting ISIS (October 17, 2014). Available at SSRN: or

Gerald Waltman (Contact Author)

University of Mississippi - School of Law ( email )

Robert C. Khayat Law Center
P.O. Box 1848
University, MS 38677
United States


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