(New York) – The United Nations Security Council has missed a key opportunity to address war crimes and rights abuses by all sides to the conflict in Iraq, Human Rights Watch said today. The council unanimously adopted a resolution on September 21, 2017, that establishes an investigative team to collect and preserve evidence of serious crimes allegedly committed by the extremist group Islamic State (also known as ISIS) – which is needed – but fails to include within its mandate abuses by anti-ISIS forces.
“No one denies the importance of tackling the widespread atrocities by ISIS in Iraq, but ignoring abuses by Iraqi and international forces is not only flawed, it’s shortsighted,” said Balkees Jarrah, senior international justice counsel at Human Rights Watch. “The pursuit of justice is essential to all victims who saw their loved ones tortured and killed, or houses burned and bombed, regardless of who is responsible.”
The resolution mandates the UN secretary-general to establish an investigative team headed by a special adviser to collect and preserve evidence of war crimes, crimes against humanity, and genocide by ISIS members in Iraq, for anticipated use in future criminal proceedings in Iraq or possibly in other national courts. It stipulates that “any other uses” of the evidence collected by the team is to be “determined in agreement with the Government of Iraq on a case by case basis.”
However, the team can and should play a positive role in advocating for federal Iraqi and Kurdistan Regional Government (KRG) authorities to bring charges against ISIS suspects for the full range of crimes they have committed, improve respect for due process rights of suspects and detainees, and to take a more victim-centered approach to national accountability efforts. It can and should seek to convince the Iraqi government to allow it to broaden the investigations to include abuses by all sides in the conflict.
An initiative aimed at documenting serious crimes by ISIS is a positive first step to support accountability efforts in Iraq, Human Rights Watch said. ISIS forces in Iraq have carried out human rights abuses, war crimes, crimes against humanity, and what the UN-mandated Commission of Inquiry on Syria found to be genocide. Human Rights Watch has repeatedly called for international support for efforts to bring ISIS members to justice. But beyond ISIS atrocities, Iraq urgently needs investigations of serious crimes by all sides to the conflict.
The United Kingdom submitted the resolution after working closely with the Iraqi government to establish an investigative body for ISIS crimes in Iraq through the Security Council. Their discussions began in September 2016 after the United Kingdom, together with Iraq and Belgium, began a global campaign at the UN General Assembly to bring ISIS to justice.
The UK decided to formally move forward with the draft resolution in August after receiving Iraq’s consent through a letter to the Security Council. Iraq made clear that it was working with the UK on a resolution “in line with Iraq’s national sovereignty and jurisdiction at both the negotiation and implementation stages.”
Iraqi authorities face a complex task to bring to justice ISIS suspects. Iraq is prosecuting thousands of detainees under counterterrorism legislation, for crimes tied to their affiliation with ISIS. However, Human Rights Watch research has found that abuse is rampant in the detention of ISIS suspects and that serious due process violations are undermining the judicial proceedings. Iraqi authorities are not charging any suspects for serious international crimes such as crimes against humanity, war crimes, or genocide, which are not criminal offenses under Iraqi law, or even rape or slavery, which are. The authorities have made no efforts to solicit victims’ participation in the trials.
Iraq is also not a member of the International Criminal Court (ICC). Prime Minister Haider al-Abadi told Human Rights Watch in March 2016 that Iraq has no plans to join – out of apparent concern that the court would be able to examine grave abuses by government security forces.
The European Union and the UN human rights office have called on Iraq to join the ICC, which would allow for possible prosecution of serious crimes by all parties to the conflict.
While abuses by Iraqi and KRG forces, as well as historically Shia military units regularized into state forces known as the Popular Mobilization Forces, have been longstanding, the battle against ISIS has given these forces latitude to carry out abuses under the guise of fighting terrorism.
During operations to retake Mosul, Iraqi forces frequently tortured and executed those captured in and around the battlefield with complete impunity, sometimes posting photos and videos of the abuses on social media sites. Since 2014, KRG and Iraqi Popular Mobilization Forces units have also carried out widespread destruction of civilian property in Sunni areas recaptured from ISIS.
Despite repeated promises to investigate wrongdoing by security forces, al-Abadi has yet to demonstrate that Iraqi authorities have held a single soldier accountable for murdering, torturing, or otherwise abusing Iraqis in this conflict. As far as Human Rights Watch has been able to determine, Iraqi and KRG courts have not opened investigations into the vast majority of human rights abuses by Iraqi army, federal police and PMF forces, and Kurdish and other anti-ISIS security forces in their battle against ISIS.
The lack of impartial justice could undermine longer-term prospects for stability and development. An imbalance in accountability efforts threatens to open new divisions and could breed a resurgence of ISIS-like groups at a moment when the Iraqi government has a unique opportunity to move the country toward meaningful reconciliation, Human Rights Watch said.
The resolution that establishes the ISIS-focused investigative team stipulates that evidence the team collects should be used in “fair and independent criminal proceedings, consistent with applicable international law,” and that the team should act consistent with its terms of reference, the UN Charter, and UN best practice. It does not explicitly exclude the use of evidence in proceedings that allow for the death penalty, one of only two penalties laid out in the federal Iraqi counterterrorism law, as well as a sentence KRG judges have handed down for counterterrorism convicts within the KRG judicial system.
Human Rights Watch opposes capital punishment in all countries and under all circumstances. Capital punishment is unique in its cruelty and finality, and it is inevitably and universally plagued with arbitrariness, prejudice, and error. A majority of countries in the world have abolished the practice.
The resolution asks the UN secretary-general to prepare, within 60 days, terms of reference “acceptable to the Government of Iraq” to guide the investigative team’s work for the Security Council’s approval. The Security Council stipulates that the terms of reference should specify the appointment of Iraqi investigative judges and other criminal experts to the team to work “on an equal footing alongside international experts”.
Though the Security Council resolution notes that the team should complement Iraqi investigations, it is unclear how its work will, in practice, interact with ongoing investigations by federal Iraqi and KRG security forces, as well as other nongovernmental efforts in Iraq to document ISIS crimes. The investigative team should ensure that its own efforts are not duplicative, at the risk of re-traumatizing victims and witnesses, and do not significantly delay the application of justice, to the detriment of victims as well as detainees being held in inhumane conditions.
“The real test for this new UN-mandated investigation is whether it can help Iraq end the rampant impunity in the country that has fed into the endless cycles of violence,” Jarrah said. “Ensuring justice for ISIS crimes – however essential – is not enough. What Iraq needs is a much more comprehensive approach that ends the selective prosecutions for abuses that have plagued the country for decades.”
