Amal Clooney wants to take ISIS to court for what she says is a "clear case of genocide".
The international human rights lawyer has made headlines in recent days for telling world leaders at the United Nations they should be "ashamed" for their failure to "prevent or even punish" the militant group for a "genocide that has gone completely unaddressed and ignored".
She has added she would be "delighted" to be on the team if Syrian President Bashar al-Assad is ever taken to court for war crimes. Together with her husband George Clooney and the UK foreign secretary Boris Johnson, she has set about trying to persuade governments to collect evidence of ISIS' crimes for a prosecution.
But is it possible take ISIS to court?
The White House, the European Parliament and UN human rights report have all ruled that ISIS is committing genocide – a term that carries significant moral and legal obligations to act. All signatories of the genocide convention, which include both the UK and US, are required to prevent and punish acts of genocide wherever they arise.
But while the declarations of genocide by political bodies is significant, they will not allow a prosecution of ISIS leaders.
The International Criminal Court (ICC) is the body that can bring the perpetrators to trial for charges such as genocide, crimes against humanity and war crimes. That is the ultimate goal for Clooney if she wants to bring ISIS to justice. But the difficulty is that the ICC is not allowed to launch an investigation independently. It has to be invited to do so.
There are two options for kick-starting an ICC investigation. The first is for the states involved to invite the ICC to come in and carry out an inquiry. In the case of ISIS that would require Syria and Iraq to ask the ICC in. But neither country is a party to the Rome Statute which established the ICC in 1998. So neither can ask the ICC to investigate, even if they wanted to.
The second option to launch an ICC investigation is for the United Nations Security Council (UNSC) to authorise it. The difficulty with this is that the UNSC conventionally gives the ICC a geographical area to investigate, rather than a particular body. So in this example the UNSC would tell the ICC to investigate possible acts of genocide in Syria and / or Iraq.
But the UNSC is unlikely to do that because Russia is a permanent member of the UNSC. Russia openly supports Assad and any investigation into crimes in Syria would include those committed by the president. Evidently Russia does not want this as it would most likely result in their ally being convicted of war crimes.
So even if the UK, the US, France or China (the other permanent members) brought forward a resolution to ask the ICC, Russia would likley veto it. Tobias Ellwood, a UK foreign office minister, told MPs earlier this year: "Any referral to the International Criminal Court by the UN Security Council will be possible only with a united Council and ideally with the co-operation of countries in which alleged crimes have been committed."
He said the UK government had already tried to refer the situation in Syria to the ICC in 2014 but it had been vetoed by Russia and China.
But Fiona Bruce MP told Christian Today the 2014 referral was against Assad and so was a "completely different issue".
She said: "It was not about the genocide of Daesh [ISIS] which in my view no country would condone. I believe the referral should be made without comparison to 2014 and am confident it will not be vetoed."
But as long as the investigation covers an entire geographical area, the assumption is that Russia would veto again.
There is, however, one last possibility for the UNSC to agree on a referral. That would be if the resolution was specifically to investigate crimes committed by ISIS, rather than crimes committed in an area.
A source working with the UN told Christian Today they were trying to offer this as a route forward but as it broke with convention it was much more difficult.
But another source close to the campaign told Christian Today Russia is likely to veto any action of the ICC, even if it is only against ISIS, because they view the ICC as too Western and too political. They see it as an "instrument of Western retribution," the source said.
So even if a resolution was made only in reference to ISIS and not Syria more broadly, which would be unprecedented, it is unlikely to get past Russia.
It seems the system and the odds are stacked against Clooney's efforts.
