Back in September, we covered the establishment by the U.N. Security Council of a novel “Investigative Team” to investigate international crimes (genocide, crimes against humanity and war crimes) committed by members of the Islamic State in Iraq and the Levant (ISIL/Da’esh) in Iraq. In the months since, the U.N. Secretary-General has been working to generate Terms of Reference (ToR) guiding the investigators’ work that were acceptable to the Government of Iraq. After several extensions of the deadline to resolve disagreements over whether the Team’s work could support domestic proceedings that would lead to the death penalty, the ToR are now complete and are available here. This clears the way for the appointment of a Special Adviser who can then recruit his or her team of investigators and begin their crucial work.
By way of background, in August 2017, following the liberation of Mosul, the Government of Iraq requested assistance from the Security Council in ensuring accountability for international crimes committed by the ISIL/Da’esh. The letter indicated a preference for criminal proceedings under Iraqi law, noting:
It is therefore important to bring to justice, in accordance with Iraqi law, the members of the terrorist gangs of ISIL who have committed such crimes. … Iraq must maintain its national sovereignty and retain jurisdiction, and its laws must be respected, both when negotiating and implementing the resolution.
The Security Council complied on the basis of a resolution drafted by the United Kingdom and asked the 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 the highest possible standards … 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…
In this regard, the resolution has a singular focus on crimes committed by ISIL, with no mandate to look into crimes attributable to governmental forces, at the federal or regional level (e.g., Kurdistan Regional forces); militia such as the Popular Mobilization Forces; or international forces for that matter. In fact, the resolution suggests that Iraq will be in a position to dictate “any other uses” of the evidence generated “on a case by case basis.” Although having Baghdad’s consent will be crucial to the Investigative Team’s ability to operate in the country, it comes at the expense of an impartial investigation that follows the evidence rather than focuses on a single armed group, no matter how heinous.
The newly released ToR instruct the Investigative Team to:
- Collect evidence to the highest possible standards to ensure the broadest possible use before national courts in Iraq.
- Establish standard operating procedures for collection, analysis, and archiving of potential evidence.
- Organize, preserve, and catalogue all evidence in accordance with international criminal law standards and Iraqi domestic law and establish an uninterrupted chain of custody and a system of data protection.
- Adopt procedures to obtain the informed consent of, and for the protection of, victims and witnesses.
- Enter into agreements with member states and organizations to support its work.
- Provide capacity building and legal assistance to the Government of Iraq.
- Liaise with an Iraqi Steering Committee, which will provide the necessary assistance and security to fulfill the team’s mandate free of interference.
The sticking point on the finalization of the ToR had been the continued availability—and pervasiveness—of the death penalty in Iraq. UNSCR 2379 made oblique reference to due process concerns that have plagued the Iraqi judicial system when it indicated that the information gathered
should be for eventual use in fair and independent criminal proceedings, consistent with applicable international law.
Although a de facto moratorium on the death penalty is in place in Kurdistan (the legislation is here), Iraq has one of the highest rates of capital punishment and executions in the world. Individuals can be sentenced to death for committing a range of offenses well beyond those involving the taking of life; the most common charge concerns violations of Iraq’s anti-terrorism legislation. Indeed, a death sentence was recently handed down in the first case involving a foreign fighter in Iraq, a Russian national charged with “carrying out terrorist operations” against Iraqi security forces. Additional mass executions followed.
The availability of the death penalty in Iraq complicates the provision of international assistance to domestic judicial proceedings. Debate over how to handle the death penalty delayed the completion of the ToR, which were supposed to be issued on November 20, 2017, but were then subject to multiple extensions. An early draft indicated that
The Investigative Team will only share evidence for use in criminal proceedings in which capital punishment will not be carried out.
Several abolitionist states insisted that this proscription was an important factor in their support for the measure, but it appears that they found a way to accommodate Iraqi preferences and legal traditions. The final ToR thus speak only of the collection of evidence to ensure its usability and admissibility in:
fair and independent criminal proceedings, consistent with applicable international law, conducted by competent domestic courts in Iraq and other States, and in any other uses to be determined in agreement with the Government of Iraq on a case by case basis.
As it stands, this issue will remain to be finessed at the operational level once a Special Advisor has been appointed.
Now that the ToR are finalized, the Secretary General can appoint a Special Adviser, who must be a person of high moral integrity with the highest level of professional competence. The Special Adviser will, in turn, recruit international experts and Iraqi investigative judges to begin work.
A key candidate for Special Adviser will be my ex-boss, Ambassador Stephen Rapp, former Ambassador-at-Large for War Crimes Issues in the U.S. State Department. It is difficult to imagine a person more qualified for this post. Following a career as a U.S. federal prosecutor, Rapp was Chief of Prosecutions and Senior Trial Attorney with the International Criminal Tribunal for Rwanda, where he prosecuted acts of genocide, and then Chief Prosecutor of the Special Court for Sierra Leone, where he led the prosecution of Charles Taylor and achieved the first convictions in history for sexual slavery and forced marriage as crimes against humanity. He has the legal skills necessary to investigate complex international crimes but also the diplomatic acumen to navigate the region’s roiling political waters and the sensitivity to work with the most vulnerable of victims.
I have written a longer article on the Investigative Team and its ability to bring justice for the Yezidi genocide that is available here; it will be published in part in the Journal of International Criminal Justice this spring.