Obama exploring how to prosecute Islamic State for genocide

The Obama administration, having declared two months ago that the Islamic State is committing genocide, is now grappling with how to actually prosecute the terrorist network's fighters for the crime.

Early-stage discussions about international tribunals and other means of justice are taking place in the White House and the State Department, people familiar with the talks told POLITICO. Any genocide prosecution, however, could be years away, a task made all the more complicated by the unusual nature of the Islamic State and the high bar for evidence.

The administration's top priority remains defeating the jihadists on the battlefield in Iraq and Syria, an approach that has been more about killing than capturing the enemy.

The discussions on prosecutions come as President Barack Obama and his aides, who spent months deciding whether to even use the word "genocide," face growing pressure to prove that invoking the label has serious consequences, even if it doesn't lead to an increase in America's military commitment.

On Thursday, a House subcommittee is holding a hearing titled "The ISIS Genocide Declaration: What Next?" Some lawmakers also are pushing legislation making it easier to arm and protect Christians, Yazidis and other groups threatened by the Islamic State, which also is known as ISIS, ISIL or Da'esh.

House Foreign Affairs Committee Chairman Ed Royce is among those urging the administration to work with the international community to set up tribunals to try the jihadist fighters for genocide and other war crimes.

"It’s critical that we actually defeat the terrorists and bring those responsible for these atrocities to justice," said Royce, a Republican from California. "The president’s lack of a plan is inexcusable.”

Secretary of State John Kerry declared on March 17 that the Islamic State is committing genocide against Yazidis, Christians and Shiite Muslims, a rare step for the U.S., which has historically tried to avoid the label. But Kerry added that his declaration did not amount to the conviction of any individuals.

"The full facts must be brought to light by an independent investigation and through formal legal determination made by a competent court or tribunal," he said. "The United States will strongly support efforts to collect, document, preserve, and analyze the evidence of atrocities, and we will do all we can to see that the perpetrators are held accountable."

Shaun Coughlin, a foreign affairs officer in the State Department's Office of Global Criminal Justice, would not confirm nor deny if the administration is examining ways to prosecute the jihadists for genocide. Instead he said the administration supports efforts to hold accountable those behind "heinous acts."

"There are venues at national and international levels in which accountability could be pursued, including the International Criminal Court in appropriate circumstances," Coughlin said.

Prosecuting members of the Islamic State for a crime like genocide, a term that carries unusual weight in the international legal lexicon, will involve dealing with a web of complicated issues.

For one thing, the Islamic State is not recognized as a bona fide state and its members are thus considered "non-state actors." The group also has attracted fighters from all over the world, meaning individual nations may have different points of view on how their citizens should be treated.

The terrorist network also has an administrative hierarchy, which could prompt questions about which fighters should be held responsible for acts planned by their superiors. And many of the local residents of Iraq and Syria whom the group has enlisted may have had no choice in the matter.

As the U.S.-led coalition fighting the Islamic State prepares for battles in urban centers such as Mosul, Iraq, and Raqqa, Syria, the administration is reportedly grappling with the more basic question of where to imprison a potentially large number of detainees.

Turning over detainees to the Iraqi government is an option the U.S. already has used because Baghdad is an ally. But it's not that simple in Syria, where the U.S. has backed rebel factions seeking to oust President Bashar Assad. (Whether Assad, who is backed by Russia, will ever be held responsible for his regime's crimes is another issue the U.S. and its allies are pondering.)

Beyond detaining them, trying to prove that members of the Islamic State committed genocide could require a special legal architecture and extensive evidence, some analysts said.

U.S. law defines genocide as killing or other specified acts committed with a "specific intent to destroy, in whole or in substantial part, a national, ethnic, racial or religious group." It's a different, higher bar than the more general "crimes against humanity," "war crimes" or other allegations, even if the punishments ultimately are similar.

"Genocide is a very difficult crime to prove. It’s a specific intent crime. You almost have to have a smoking gun to do it," said David Michael Crane, the founding chief prosecutor of the Special Court for Sierra Leone, a war crimes tribunal that dealt with the fallout from the African country's 1990s civil war.

Crane indicted former Liberian President Charles Taylor for his role in the Sierra Leone conflict; the African leader was eventually convicted of war crimes and crimes against humanity, and is serving a 50-year prison sentence — one of the most high-profile such cases.

Overall the international community has a mixed record of holding to account perpetrators of genocide and related crimes. Sudanese President Omar Bashir, for instance, has been indicted by the International Criminal Court for genocide in the Darfur region, but he has refused to appear and has traveled abroad freely despite an outstanding warrant for his arrest. On the other hand, the International Criminal Tribunal for Rwanda convicted dozens of people for their roles in the 1994 genocide. Those convicted typically get long prison terms.

Crane has talked to members of the Obama administration about ways to bring Islamic State members to justice over allegations including genocide. He said he expects little to get done anytime soon, in part because it's an election year.

"We can do this, we have the experience, the jurisprudence. The challenge is the political will to do it," Crane said.

Steve Oshana, an Assyrian Christian activist who also has dealt with administration officials on how to hold the Islamic State accountable, said his sense is that they'd rather set up a new tribunal with global allies than use the International Criminal Court, which is exceedingly slow.

"Certainly there's no talk about the U.S. setting up its own tribunal," Oshana added. "What they don’t want to do is to create more fodder for ISIS propaganda. It would have to be an international deal."

U.S. lawmakers appear on board with that idea. Just days before Kerry's declaration, the House of Representatives overwhelmingly passed a resolution urging the creation of a war crimes tribunal that could bring justice to anyone suspected of genocide, war crimes and crimes against humanity in Syria.

Coughlin, the State Department official, said the U.S. Transitional Justice Global Initiative is helping civil society members in Iraq develop protocols and gather evidence to hold human rights violators accountable. At least 29 Iraqi civil society activists have collected some 600 narratives from victims and witnesses of atrocities, Coughlin said.

Some observers worry that such programs aren't moving fast enough. They fear that evidence that can prove genocide — whether it's documentation or mass graves — will be lost or destroyed as the fighting continues.

They also point to concerns that certain ethnic and religious minorities will remain vulnerable to violence from other armed groups even after the Islamic State is defeated, especially if the array of grievances that gave rise to the terror network are not addressed.

"Fighting ISIS is not the same as having a comprehensive strategy to prevent genocide, mass atrocities and war crimes. It’s an essential aspect, but there’s more to it," said a congressional aide familiar with the administration's talks.