A New Mechanism for Syria, But What About Iraq?

By Ewelina U. Ochab – FORBES MAGAZIN  –  2017-03-29  –   Since their rise as a major terrorist group in the Syria and Iraq conflicts, Daesh has perpetrated some of the worst atrocities and war crimes that we have witnessed in years. It has become clear that the atrocities committed by Daesh against religious minorities such as Yazidis or Christians, amongst others, have been genocidal in nature: a genocide which has been recognised by several international institutions, including the Council of Europe, European Parliament, US Department of State, and states, namely, UK House of Commons, and the Parliaments of Canada, Australia and France.

Although military actions and humanitarian assistance are ongoing, the importance of investigating these atrocities, and the prosecution of the perpetrators of genocide, cannot be underestimated. As Daesh’s crimes are not a problem only for Syria and Iraq, but an international problem, the response to them must be international too. States must act together to bring such criminals to justice, an action which can be taken under the umbrella of the United Nations. As yet, however, the United Nations has not taken any decisive step towards the prosecution of Daesh and its members for their crimes — they have not, for instance, been following their established processes used to prosecute previous genocidal atrocities in Bosnia and Rwanda.

Despite the lack of decisive action in general, there has however been some movement in regards to the situation in Syria in particular. In 2011, the UN Human Rights Council established the Independent International Commission of Inquiry on the Syrian Arab Republic (the Commission of Inquiry) to investigate the conflict situation in Syria. The Commission of Inquiry was given the mandate to investigate all crimes in Syria since March 2011. This means not only those crimes committed by Daesh, but also other atrocities perpetrated by the Syrian regime, militias, and other actors involved (including Jabhat Al-Nusra, a lesser-known extremist group). On 16 June 2016, the Commission of Inquiry released a report focusing on the atrocities committed by Daesh, recognising those committed against Yazidis as genocidal.

The Commission of Inquiry is, therefore, the first UN body to clearly brand Daesh’s atrocities as genocidal (however, the report did not consider atrocities committed against other minorities). The report also called upon the UN Security Council to adopt a resolution referring the situation to the International Criminal Court or to establish an ad hoc tribunal. These recommendations have not been taken up by the members of the UN Security Council, largely because of deteriorating relations between its’ Members; some of whom would be very likely to veto any action (or resolution) that applied to the Syrian conflict.

Subsequently, in December 2016, the UN General Assembly passed a resolution establishing the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011. The mechanism will:  collect, consolidate, preserve and analyse evidence of violations of international humanitarian law and human rights violations and abuses and;    prepare files in order to facilitate and expedite fair and independent criminal proceedings, in accordance with international law standards, in national, regional or international courts or tribunals that have or may in the future have jurisdiction over these crimes, in accordance with international law.

This is a late, small, but positive step forward. Obtaining, securing and preparing evidence for any future proceedings is crucial to ensure the administration of justice. Nonetheless, the steps taken are in relation to Syria only and Iraq has gained less international attention.

On September 19, 2016, the UK Foreign Secretary, with the Foreign Ministers of Iraq, launched a global campaign to hold Daesh to account for the crimes committed in Iraq. Unfortunately, over the following months, the coalition has made no indication as to how it intends to bring Daesh perpetrators to justice at the international level. The coalition has not submitted any plan for the collection of evidence, the conduct of investigations, or achievement of prosecutions. Some reports suggest that the coalition is awaiting confirmation from the Iraqi government on how to proceed. While the Iraqi government has not confirmed its position how to prosecute members of Daesh, steps need to be taken urgently to obtain and preserve evidence of their crimes and to ensure that such evidence can be admissible in future prosecutions.

A number of NGOs has been collecting evidence of atrocities committed in the region. However, the information obtained may not be admissible in court due to a lack of crucial information, as the information is collected by NGO staff who are not legally trained. Consequently, interviews with victims would have to be conducted a second time for the evidence to comply with legal standards, a process which may be distressing for the victims concerned and which would make the evidence collection by NGOs largely a futile, not least a potentially damaging, exercise. It is, therefore, necessary for independent and professional evidence collection mechanisms to be established.

Ideally, the chosen route to prosecution should involve the establishment of a commission of experts on genocide by the UN Security Council, as was done for the investigations of previous genocidal atrocities in Bosnia and Rwanda. A commission of this sort would be able to consider the present evidence, identify gaps in information, collect further evidence in a professional manner in accordance with proper legal standards, and present their opinion confirming the nature and extent of the atrocities under investigation. The commission would ultimately enable a confirmation of the extent of the genocide in Syria and Iraq, and which atrocities, in particular, are of genocidal character. Furthermore, the commission could secure the evidence for future proceedings. Without the establishment of such an effective high-level investigation, one needs to look into other, less favourable options. The British-Iraqi coalition could follow the UN lead by establishing an expert panel to assist in the investigation of and prosecution for atrocities committed in Syria. A similar mechanism could be established for the crimes committed by Daesh in Iraq.

This step to collect and preserve the evidence of Daesh atrocities in Iraq is urgently needed. As more of the Nineveh Plains is liberated from Daesh control, displaced people are beginning to arrive to clear the area of the remnants of conflict, rebuild, and allow for the return of their families and businesses to the region. As people rebuild and normality returns, however, the evidence of Daesh’s atrocities is being removed. In addition, with the return of infrastructure, those victims who remained during the conflict can move away, taking their testimonies with them. These testimonies, if not recorded now, will likely disappear — pushing the chance for justice further into the future.