Yesterday, during what appears to be the near-conclusion of the battle for Mosul in Iraq, Iraqi forces moved further into the centre of the old town and, as they did, came across the ruins of the famed al-Nuri Mosque. The 12th century mosque, the same holy site where the ISIS caliphate had been proclaimed in 2014, was destroyed by ISIS militants last week. So upon their arrival, the government forces found rubble and little else.
At first, ISIS appeared to claim that the attack on the mosque was the result of an allied air strike, though this has been ardently denied by others and hasn’t been confirmed by any other source. Of course the destruction of such a sacred shrine is beyond the pale, and it rightly elicited global condemnation. The intentional destruction of an undefended place of worship is, after all, a war crime. The only problem is that, for such a crime to be prosecuted before the International Criminal Court (ICC), which sits in the Hague, Netherlands, the relevant country needs to have signed up to the Rome Statute of 1998. Iraq never did. And so, while such senseless destruction is quite clearly a reprehensible act, there appears to be little way of attracting the Court’s jurisdiction, at least initially.
The ICC’s jurisdiction will extend to the territory of Rome Statute member states; but because Iraq is not one of these, actions taking place in Iraq are not prima facie covered. The only ways in which actions such as those of last week could lead to a charge before the ICC would be if they were committed by nationals of a country that is, unlike Iraq, a member state of the Rome Statute (such as Jordan, Afghanistan, France, the UK and 120 others), if Iraq itself accepted the ICC’s jurisdiction (which does not appear likely) or if ICC jurisdiction was extended by unanimous vote of the UN Security Council. But short of any of these situations arising, the activities would not lead to any prosecution under international criminal law.
Under international law more generally, the activities in Mosul (not to mention equally destructive actions on the part of ISIS elsewhere in Iraq and Syria) would be illegal. The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (Hague Convention), to which Iraq is a party, stipulates that acts of hostility directed against cultural property such as religious monuments are prohibited, except in the event of imminent military necessity. Now, clearly there is no military necessity in blowing up an undefended mosque; so much is clear. The only problem is that, under international law, there is no way of pinning responsibility for illicit acts on ISIS for the simple reason that ISIS is not a “state”: it does not have, nor will ever have, sufficient recognition amongst other states, the sine qua non of statehood under international law.
And so, despite the deplorable act committed, there is very little that can be offered under international criminal law or international law more generally. Any recourse would have to be found under local law. Clearly such wanton destruction of a sacred shrine would be illegal under Iraqi law. This would then be the only avenue of prosecution and punishment, provided the wrongdoers are ever apprehended.