New UN Team Investigating ISIS Atrocities Raises Questions About Justice in Iraq and Beyond

On September 21, the United Nations Security Council (UNSC) unanimously passed resolution 2379 to pursue accountability for atrocity crimes perpetrated in Iraq by the Islamic State (also called ISIS, ISIL or Da’esh). The resolution, in paragraph 2, requests the UN Secretary-General

to establish an Investigative Team, headed by a Special Adviser, to support domestic efforts to hold ISIL (Da’esh) accountable by collecting, preserving, and storing evidence in Iraq of acts that may amount to war crimes, crimes against humanity and genocide committed by the terrorist group ISIL (Da’esh) in Iraq . . . to ensure the broadest possible use before national courts, and complementing investigations being carried out by the Iraqi authorities, or investigations carried out by authorities in third countries at their request.

Many have praised the UNSC’s initiative. U.S. Ambassador to the UN Nikki Haley called the resolution “a landmark” in “demonstrating that justice is never beyond reach, that no victim is voiceless, and that no perpetrator is above the law.” International human rights attorney Amal Clooney, who represents Yazidi victims of ISIS atrocity crimes, stated that the resolution is “a huge milestone for all those who’ve been fighting for justice for victims of crimes committed by ISIS.” Iraqi Foreign Minister Ibrahim al-Jaafari declared the development “a victory for justice, a victory for humanity, and a victory for the victims.”

Particular countries were pivotal to the adoption of UNSC resolution 2379. The United Kingdom is credited with drafting the resolution and providing approximately $1.3 million to set up the investigative team. And the United States contributed to the drafting process.

The desirability of such an investigative team is well understood. ISIS has perpetrated widespread and systematic murder, kidnapping, sexual violence (including forced marriage and sexual slavery), and destruction of cultural heritage. Last month, Secretary of State Rex Tillerson stated: “ISIS is clearly responsible for genocide against Yezidis, Christians, and Shia Muslims in areas it controls or has controlled” and “is also responsible for crimes against humanity and ethnic cleansing directed at these same groups, and in some cases against Sunni Muslims, Kurds, and other minorities.” Tillerson’s declaration echoes virtually verbatim a statement last year from his predecessor, John Kerry. The European Parliament and a UN body similarly concluded that ISIS has committed genocide.

The creation of this investigative team is thus a welcome, even if belated, development. However, this initiative prompts questions about the body’s scope, use of evidence, comparison to Syria, and precedential value. 

Scope

By the terms of UNSC resolution 2379, the investigative team is to focus exclusively on ISIS in Iraq. And yet other groups within Iraq are also suspected of committing serious human rights violations. Sen. Patrick Leahy (D-Vt.) and Human Rights Watch (HRW) (here, here, and here) have accused Iraqi and/or Kurdistan Regional Government forces of committing abuses. Such groups would not come under the UN investigative team’s mandate. The Iraqi government would presumably not have provided its consent if so.

Already some are criticizing the investigative team’s scope. The same day the UNSC adopted the resolution, the Global Centre for the Responsibility to Protect lamented “the limited focus” of the resolution. The NGO added: “No voices should be marginalized or silenced in the pursuit of justice in Iraq, including those of Sunni families who have faced sectarian reprisals in territory reclaimed from ISIL.” (Iraq’s Sunni community fears such violence from Shiite militias.) Similarly, HRW denounced the resolution as “flawed,” “shortsighted,” and “selective,” stating that the UNSC failed to include within the investigative team’s mandate “abuses by Iraqi and international forces.” HRW thus recommended broadening “the investigations to includes abuses by all sides in the conflict.”

Use of Evidence

UNSC resolution 2379 states that the investigative team should collect, preserve, and store evidence “to the highest possible standard” and that the evidence should be used “in fair and independent criminal proceedings, consistent with applicable international law.” While the resolution emphasizes the importance of internationally recognized due process standards, it is not yet clear which specific prosecutorial fora will use the evidence. The resolution states, in paragraph 5 (which emphasizes Iraq’s “jurisdiction over crimes committed in its territory”), that the evidence should be used in criminal proceedings “conducted by competent national-level courts, with the relevant Iraqi authorities as the primary intended recipient.”

However, the resolution, also in paragraph 5, additionally allows for evidence to be used as “determined in agreement with the Government of Iraq on a case by case basis.” Some have interpreted that language to include the possibility of use by international courts. A hybrid tribunal (such as has been employed for Bosnia and Herzegovina, Cambodia, Kosovo, Lebanon, Sierra Leone, and Timor Leste)—combining lawyers, judges, and other professionals from both Iraq and the international community—might be another option. Indeed, there is precedent for such a mixed court in Iraq; the Iraqi High Tribunal, which some consider a hybrid tribunal, tried Saddam Hussein and certain members of his regime.

Comparison to Syria

The UNSC’s creation of a team to investigate atrocity crimes perpetrated in Iraq by ISIS follows recent efforts by the UN to investigate similar abuses in Syria. On August 22, 2011, the UN Human Rights Council (UNHRC) established the Independent International Commission of Inquiry on the Syrian Arab Republic (COI) to

investigate all alleged violations of international human rights law since March 2011 in the Syrian Arab Republic, to establish the facts and circumstances that may amount to such violations and of the crimes perpetrated and, where possible, to identify those responsible with a view to ensuring that perpetrators of violations, including those that may constitute crimes against humanity, are held accountable.

More recently, on December 21, 2016, the UN General Assembly (UNGA) created the International, Impartial, and Independent Mechanism to Assist in the Investigation and Prosecution of Those Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011 (IIIM). Some experts, such as Harvard Law School Professor Alex Whiting and Human Rights Watch Senior International Justice Counsel Balkees Jarrah, noted that a UNGA mechanism to investigate atrocity crimes was unprecedented.

That the investigation of atrocity crimes for Syria and Iraq have proceeded in different components of the UN is no coincidence. A UNSC-backed option was not possible in the case of Syria because Syria did not provide its consent. The regime of President Bashar al-Assad is accused of perpetrating atrocity crimes in Syria and would thus object to any UN effort to hold him and his supporters accountable. Concerned about violations of sovereignty, Russia and China have thus blocked meaningful accountability efforts for Syria through the UNSC. Russia’s veto is driven by a second reason: Vladimir Putin’s administration is accused of committing abuses alongside Assad. No state can veto initiatives of the UNGA or the UNHCR, enabling those institutions to be viable sponsors of atrocity investigations in Syria.

Unlike Syria, Iraq fully consented to UNSC resolution 2379. Last month, Iraqi Foreign Minister al-Jaafari sent a letter to the UNSC president requesting “the international community to provide assistance, so that we can make use of international expertise in our effort to prosecute the terrorist entity ISIL” and noted that his government would work with the United Kingdom to present a relevant draft UNSC resolution. At the same time, al-Jaafari stressed that “Iraq must maintain its national sovereignty and retain jurisdiction, and its laws must be respected, both when negotiating and implementing the resolution.” Resolution 2379 faithfully fulfills al-Jaffari’s requirement of protecting Iraq’s sovereignty. The first preambulatory clause reaffirms the UNSC’s “respect for the sovereignty, territorial integrity and unity of Iraq” and the fifth paragraph “[u]nderscores that the Investigative Team shall operate with full respect for the sovereignty of Iraq and its jurisdiction over crimes committed in its territory.” To reinforce this text in the resolution itself, when explaining their support for the initiative, the ambassadors to the UN of China, Bolivia, and Ethiopia all stressed the importance of maintaining’s Iraq’s sovereignty.

Given the UNSC’s primary responsibility for “the maintenance of international peace and security,” and thus the UNSC’s additional enforcement powers over other UN components, the investigative body for Iraq is inherently stronger than its counterparts created for Syria by the UNGA and the UNHRC. Whether the country in which the atrocity crimes were perpetrated consented to the investigative body, and whether a veto-wielding memo of the UNSC was implicated in those crimes, determined the forum in which the investigative bodies for Syria and Iraq could be created—and thus their relative strength.

A development last month further underscores the role the UNSC plays in accountability for atrocity crimes, even when it is not the sponsor of an investigative body. On August 6, former chief prosecutor of the UN International Criminal Tribunals for Rwanda and for the Former Yugoslavia Carla del Ponte, one of the three members of the Syrian COI, resigned in frustration over the body’s lack of progress. She stated: “I give up. The states in the Security Council don’t want justice . . . . I can’t any longer be part of this commission which simply doesn’t do anything.” She added: “It was all about the inaction of the Security Council because if you look at all the reports we have published, we have obtained nothing in terms of injustice.” Even though it was the UNHRC that created the COI, that del Ponte still held the UNSC ultimately responsible for accountability in Syria further suggests that the latter body is viewed as dominant in this issue area and investigative bodies established outside the UNSC are fundamentally weak.

Precedential Value

UNSC resolution 2379’s preamble emphasizes that ISIS “constitutes a global threat to international peace and security” and is a “terrorist group.” The international community, including the UNSC, should also pursue atrocity prevention and accountability even where suspected perpetrators do not constitute such a global threat and may not qualify as terrorists. For example, Burma’s military is perpetrating atrocity crimes (possibly amounting to genocide) against the Rohingya. Hopefully UNSC resolution 2379 will set a precedent for helping to collect evidence elsewhere, as in Burma, where atrocity crimes rage.

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While seeking accountability for ISIS atrocity crimes is certainly laudatory, UNSC resolution 2379 raises significant questions about justice in Iraq and elsewhere. Regarding the investigative team, what will be its overall cost; which states, besides the United Kingdom, will provide financial and technical support; will its mandate be expanded to include atrocity crimes perpetrated in Iraq by groups other than ISIS; what will its relationship, if any, be with the COI and IIIM, given that ISIS also operates in Syria; and will its staff be as frustrated as del Ponte was about the COI? Regarding eventual prosecutions of ISIS affiliates in Iraq, which courts (e.g., national courts in Iraq or foreign countries, a hybrid tribunal, an international court) will use the evidence collected, preserved, and stored by the investigative team and will prosecutions within Iraq meet internationally recognized due process standards? Regarding justice more generally, which other transitional justice measures besides the investigation and prosecution of suspected ISIS atrocity perpetrators will be implemented in Iraq; if Assad is removed from power and his successor consents, would the UNSC set up an investigative mechanism for Syria; and will the UNSC-backed investigative team for Iraq be used as a model for collecting evidence of atrocity crimes elsewhere, such as in Burma? International lawyers, atrocity survivors, and other observers await answers to these questions before assessing whether UNSC resolution 2379 truly promotes justice.

Image: UN/Evan Schneider

 

About the Author(s)

Zachary D. Kaufman

Lecturer in Law and Fellow at Stanford Law School, Visiting Scholar at the Hoover Institution, Senior Fellow at Harvard University John F. Kennedy School of Government’s Carr Center for Human Rights Policy Follow him on Twitter (@zacharykaufman ).