By Hajar Baker, Iraq.
Since Da’esh’ takeover of Mosul in 2014, discussions emerged both domestically and internationally on the legal framework within which affiliates of the terrorist group should be prosecuted for their perpetrated atrocities. By the time the UNITAD mechanism to promote accountability for crimes committed by the Islamic State in Iraq and the Levant (Da’esh) was established in 2017, the Iraqi judiciary has processed, and is continuously processing the prosecution of thousands of affiliated perpetrators, both nationals and foreign fighters of Da’esh. Despite horrendous crimes committed by the terrorist group credibly amount to core international crimes, perpetrators are nevertheless prosecuted mainly on charges of terrorism, pursuant to ordinary criminal legislations. This paper assesses the legal and judicial response to Da’esh’s crimes committed on Iraq’s territory. The first part studies the nature of crimes committed by Da’esh, establishing that they amount to core international crimes and violations of Jus cogens norms of international law. Pursuantly, it situates Iraq’s legal obligations under international law. The second part examines the capacity of Iraq’s legislative framework to prosecute crimes perpetrated by Da’esh, thus identifying its deficiency to prosecute international crimes. It essentially problematizes Iraq’s prosecution of international crimes as ordinary crimes and exposes the significance of prosecuting atrocities committed by Da’esh in a comprehensive transitional justice context. It purports to argue that Iraq’s refraining from naming the crimes committed by Da’esh as appropriate and shaming them accordingly is enduringly detrimental to the Iraqi judiciary, and to the evolution of national and international criminal law and jurisprudence. The last part examines the prospects of post-Da’esh justice framework within the Iraqi legal system, along with the support of UNITAD and in accordance with international criminal law and transitional justice necessities. If carefully established and engineered, international investigative mechanisms assisting national prosecutions of international crimes could be the new norm of adequate responses to international crimes. The paper therefore proposes a legal framework pursuant to which Iraq could assume its international legal responsibility of prosecuting international crimes in national courts, thus leading a model of national response to international crimes, with the support of UN mechanisms.
Keywords: Iraq, Da’esh, transitional justice, international criminal law, national prosecutions, atrocities, survivor-centered approach, universal jurisdiction, counterterrorism law, UNITAD.
The Islamic State in Iraq and the Levant’s (Da’esh) 1 takeover of Northern Iraq in 2014 and its establishment of the Caliphate(2) marked unprecedented barbarism of terrorist organizations in the 21st century. Adopting an outspoken ideology of takfirism(3) against minorities and dissidents from the group’s radical interpretation of Islam, Da’esh engaged systematically in committing crimes against those it identified as such. (4) Among its targeted groups were the Yazidi minority, identified by the terrorist group as ‘infidels’. Reports on crimes perpetrated against women and children involved various forms of slavery - particularly sexual slavery, human trafficking and rape. (5) The systemic recruitment of minors and use of the latter as human shields are established through empirical research and analysis. (6) Following the siege of Mount Sinjar and the region around it in August 2014, (7) mass graves identified in the city of Kojo alone are up to 63 mass graves, (8) out of more than 200 mass graves left by the terrorist group. (9) Footages and reports of perpetrated acts, credibly constituting international crimes, (10) were part of Da’esh’s tools of terror and resonated shockingly in the international community. (11) In an attempt to address these atrocities, decisions and statements were issued considering the massacre committed by Da’esh against Yazidis a crime of genocide. (12) The Iraqi government in turn has issued a Council of Ministers’ decision deeming crimes perpetrated by Da’esh against specific constituents of the Iraqi nation, a crime of genocide.(13)
Since the emergence of modern international criminal law after World War II, marked by the Nuremberg and Tokyo trials,(14) international politics and dynamics of conflicts proved to be decisive in designing the method of international legal response to address international crimes, resulting in various mechanisms of accountability. (15) Responses varied from judicial mechanisms initiated under Chapter VII of the United Nations Charter such as those of the International Criminal Tribunal for Yugoslavia (ICTY), (16) the International Criminal Tribunal for Rwanda (ICTR), (17) internationally assisted tribunals as that of the Iraqi High Criminal Tribunal , referred to as the Iraqi High Tribunal (IHT), (18) and the landmark establishment of the permanent treaty-based International Criminal Court (ICC). (19)
Despite different models of judicial mechanisms, Da’esh’s atrocities in Iraq and Syria have renewed the discourse on the prospects of prosecuting perpetrators within the current international criminal framework. (20) Whether or not the ICC will conduct preliminary proprio motu investigations pursuant to article 15 of the Rome Statute, or whether the United Nations Security Council (UNSC) will act under Chapter VII of the UN Charter and refer the case of Da’esh to the ICC, pursuant to article 13 of the Rome Statute, have been continuously raised following the insurgence of Da’esh. (21)
Yet the limitations of referring cases to the ICC for legal(22) and geopolitical reasons(23) immediately resonate. Iraq is not a state party of the Rome statute and thus the ICC has no jurisdiction over Iraqi nationals. (24) Besides, and unlike the case of Libya, Darfur and Uganda, or that of establishing ad hoc tribunals such as that of ICTR and ICTY, the UNSC is unlikely to use its power under the Rome Statute(25) or that of the United Nations Charter to create international tribunals as subsidiary organs to implement measures under Chapter VII of the Charter. (26) The United States, Russia and China are veto members, are not members of the Rome Statute, and whose number of citizens have been involved with Da’esh. (27) Moreover, governments who have had their nationals affiliated with Da’esh are wary of taking responsibility of their citizens, further burdening the Iraqi judicial system with the prosecution of foreign fighters.(28) This altogether appeared to be a deadlock for an international criminal response to Da’esh. The inaction by the international community towards crimes committed by Da’esh have raised great doubt in the willingness and ability of the international legal system and the international community- mainly portrayed by the UNSC- to adopt decisive responses similar to previous atrocities.
Yet this manifest instrumental deadlock within the current international legal system to address atrocities has triggered a new model of mechanism within the United Nations when encountering realpolitik’s obstruction with international criminal justice. (29) In the case of Syria, The United Nations General Assembly (UNGA) created the International, Impartial and Independent Mechanism to assist the investigation and prosecution of those responsible for the most serious crimes under international law committed in the Syrian Arabic Republic since March 2011, known as the (IIIM) or the ‘Syria mechanism’. (30) A similar mechanism was established for Da’esh’s perpetrated crimes in Iraq, this time by a Security Council Resolution S/RES/2379 (2017), (31) known as UNITAD. (32)
Requested by the Iraqi government to assist in achieving accountability against Da’esh through collecting, preserving and storing evidence, (33) UNITAD was widely welcomed as a development to deliver justice for Da’esh victims. (34) Yet while it is at the outset of conducting its investigative work in Iraq since January 2019(35) and the exhumation of mass graves as part of its investigative mandate, the judiciary in Iraq seems determined to conduct judicial proceedings against thousands of affiliates and perpetrators of various rankings, according to the Iraqi legislative framework, (36) with convictions that are often life imprisonment and capital punishments. (37) Discussions emerged on the prospects of a tribunal or legal mechanism to prosecute Da’esh members in Iraq, to complement national legal proceedings of prosecutions. (38) This is not without shortcomings, and is likely to consume some time before a final model sees the light. So how should the national judicial response to Da’esh’s crimes reconcile to that of the international mechanism, in order to achieve a successful model of prosecution within the national judicial framework, with the assistance of international mechanisms, all together consistent with the particularities of transitional justice necessities? (39)
The following part examines the crimes perpetrated by Da’esh and the legislative framework according to which they are adjudicated, pursuantly establishing its deficits of delivering justice within a transitional justice context and obligations under international criminal law.