Expected Council Action
In September, the Security Council is expected to renew the mandate of the UN Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL (UNITAD), which expires on 21 September.
Key Recent Developments
UNITAD was set up through resolution 2379 of 21 September 2017 for an initial period of two years and was renewed for another year in resolution 2490 of 20 September 2019. The Council had asked the Secretary-General to establish an investigative team to support Iraqi domestic efforts to hold the Islamic State in Iraq and the Levant (ISIL) accountable for crimes it committed in the country “by collecting, preserving, and storing evidence in Iraq of acts that may amount to war crimes, crimes against humanity and genocide”. Additionally, the investigative team is responsible for promoting accountability globally for atrocity crimes committed by ISIL in order to counter ISIL narratives that have led people to join the terrorist group. On 31 May 2018, the Secretary-General appointed Karim Asad Ahmad Khan as Special Adviser and head of UNITAD. In July, the Iraqi government requested the Secretary-General to reappoint Khan for a year. The investigative team formally began its work on 20 August 2018. To date, the Special Adviser has submitted and briefed the Council on four reports.
According to resolution 2379, UNITAD is to be “impartial, independent, and credible”, operating within its terms of reference, the UN Charter, UN best practices and relevant international law, including international human rights law. The investigative team has an assessed budget of around $21 million for 2020, covering core infrastructure and staffing needs. Additionally, it relies on voluntary contributions made to the trust fund established by resolution 2379 and on in-kind contributions, including the provision of expert personnel. Current contributors to the trust fund are Cyprus, Denmark, the EU, Germany, the Netherlands, the Philippines, Qatar, Slovakia, the UK, the United Arab Emirates and the US. Commitments to the trust fund currently amount to about $5 million. UNITAD’s overall staff stands at about 150. Expert personnel from Australia, Finland, Germany, Jordan, Saudi Arabia, Sweden and the UAE are currently seconded by their respective governments.
As required by resolution 2379, UNITAD is implementing its mandate according to “UN best practices”, meaning that no evidence may be shared for criminal proceedings in which capital punishment may be imposed. The death penalty, however, is incorporated into the Iraqi legal system. The international crimes UNITAD is mandated to investigate are not yet incorporated as such into Iraq’s domestic legal system. Acts falling under crimes against humanity, genocide and war crimes are currently prosecuted as terrorist crimes. Draft legislation, suggested by Iraqi President Barham Salih last November, would amend the Iraqi High Tribunal Law; it is currently before the Iraqi parliament. The amendment would allow for the prosecution of ISIL members for international crimes.
UNITAD’s investigative strategy focuses on the mass killing of unarmed Iraqi air force cadets from Tikrit Air Academy (also known as “Camp Speicher”) in June 2014, attacks committed by ISIL against the Yazidi community in the Sinjar district in August 2014, crimes committed by ISIL in Mosul between 2014 and 2016, and crimes against the Christian, Kaka’i, Shabak, Shi’a, Sunni, and Turkmen communities. UNITAD’s investigations are focusing on those ISIL members who bear the greatest responsibility among the leadership as well as regional and mid-level commanders.
Resolution 2379 says that the Iraqi authorities are “the primary intended recipient” of evidence collected by UNITAD. So far, no evidence has been shared with the Iraqi authorities, but discussions continue about the transmission of evidence. The resolution also refers to the possibility that evidence collected by the investigative team could complement “investigations carried out by authorities in third countries at their request”. The investigative team is currently supporting cases in Finland, France and Germany. UNITAD has received a further five formal requests from states as well as indications by other states that they intend to request support.
Human Rights-Related Developments
During its 44th session, the Human Rights Council (HRC) on 8-9 July considered the report (A/HRC/44/41/Add.1) of Cecilia Jimenez-Damary, the HRC Special Rapporteur on the human rights of internally displaced persons (IDPs). Jimenez-Damary conducted an official visit to Iraq from 15 to 23 February 2020, travelling to Baghdad, Erbil, Ninewa governorate (including Mosul), and Dohuk. Her report said that because 6 million people were displaced between 2014 and 2017 as a result of the conflict with ISIL, Iraq has struggled to support the humanitarian needs and achieve sustainable solutions for some 1.4 million people who are still displaced, as well as addressing the difficulties encountered by those who returned to their places of origin. Jimenez-Damary’s report raised concerns about the “access constraints faced by humanitarian actors operating in Iraq” and recent camp closures, leading to forced returns and secondary displacement. The report also addressed the reports of sexual and gender-based violence against IDPs.
Key Issues and Options
The immediate issue for the Council is the renewal of UNITAD’s mandate. If the government of Iraq continues to support UNITAD in its current form and requests its extension, an option for the Council would be to renew UNITAD without changes.
Council and Wider Dynamics
Council members are generally supportive of UNITAD, as is the Iraqi government. Members whose national jurisdictions do not have the death penalty remain concerned that evidence shared by the investigative team with the Iraqi authorities might be used in criminal proceedings in which the death penalty could be imposed. Other members are of the opinion that the use of the death penalty is Iraq’s sovereign right, a point routinely emphasised by Iraq as well. Another issue frequently raised by some members is the prosecution of foreign terrorist fighters currently on Iraqi soil. Some of the governments concerned have been reluctant to take back their nationals in order to prosecute them, leading to criticism that they are outsourcing their legal obligations. Some members also continue to emphasise the need to include in the Iraqi national legal system the international crimes that UNITAD is mandated to investigate.
The UK is the penholder on UNITAD.
UN DOCUMENTS ON IRAQ
|Security Council Resolutions|
|20 September 2019S/RES/2490||This resolution renewed the mandate of UNITAD until 21 September 2020.|
|21 September 2017S/RES/2379||This resolution established an investigative team tasked with collecting, storing and preserving evidence of ISIL crimes in Iraq.|
|Security Council Letters|
|17 June 2020S/2020/547||This was a letter transmitting the briefing provided by Karim Asad Ahmad Khan on 15 June.|
|15 August 2018S/2018/773||This was a letter from the Secretary-General, notifying the Council that the Investigative Team on Iraq/ISIL accountability will begin its work on 20 August 2018.|
|9 February 2018S/2018/118||This was a letter from the Secretary-General to the Council containing the terms of reference for the investigative team to support domestic efforts to hold ISIL accountable by collecting, preserving and storing evidence of war crimes committed by ISIL in Iraq.|