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 18 September.
Background and Key Recent Developments
UNITAD was established by resolution 2379 of 21 September 2017 for an initial period of two years. Its mandate was renewed for one year by resolution 2490 of 20 September 2019 before being renewed for a further year by resolution 2544 of 18 September 2020. In establishing UNITAD, the Council 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, also known as Da’esh) 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”. UNITAD is also responsible for promoting accountability globally for atrocity crimes committed by ISIL. UNITAD formally began its work on 20 August 2018.
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 approximately $21 million for 2021, 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, such as the provision of expert personnel. Cyprus, Denmark, Germany, the Netherlands, the Philippines, Qatar, Slovakia, the UK, the United Arab Emirates (UAE), the US, and the EU have contributed to the trust fund. UNITAD currently employs more than 200 staff. Expert personnel from Australia, Finland, Germany, Jordan, Saudi Arabia, Sweden, and the UAE have been seconded by their respective governments.
On 31 May 2018, the Secretary-General appointed Karim Asad Ahmad Khan as Special Adviser and head of UNITAD. Khan served in this role until June, when he left UNITAD to become the Chief Prosecutor of the ICC. The appointment of Khan’s successor is currently being finalised and an announcement is expected soon. During his tenure, Khan briefed the Council on six reports regarding the work of UNITAD. He opened investigations into the mass killing of unarmed Iraqi air force cadets and military personnel at Tikrit Air Academy 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; crimes against the Sunni, Christian, Kaka’i, Shabak and Shia Turkmen communities; and the development and use of chemical weapons by ISIL. Specialised thematic units also began investigating sexual and gender-based crimes, crimes against children, and the financing of ISIL.
Pursuant to 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 could be imposed. The international crimes that UNITAD is mandated to investigate have not been directly incorporated into Iraq’s legal system. As a result, offenders who have engaged in conduct that contravenes international criminal law are usually charged with terrorism offences. Under Iraqi law, the death penalty can be imposed for these offences, and this has prevented UNITAD from sharing evidence regarding potential violations of international criminal law with Iraqi authorities. Draft legislation incorporating international crimes into Iraq’s legal system, which is designed to rectify this issue, was introduced into the Iraqi parliament in October 2020. The draft legislation progressed through Iraq’s legislative process, but its progress has stalled in the lead up to the 10 October parliamentary elections. At the time of writing, it had not been adopted.
During his May briefing to the Council, Khan announced that UNITAD had finalised initial case briefs in relation to the mass killings at Tikrit Air Academy and the attacks against the Yazidi community in the Sinjar region. In finalising these briefs, UNITAD concluded that numerous international crimes were committed against the Yazidi, including genocide, extermination, enslavement, sexual violence, forcible transfer, persecution on religious and gender grounds, and conscription of children. UNITAD also determined that the attacks at Tikrit Air Academy constitute war crimes, namely murder, torture, cruel treatment, and outrages upon personal dignity. Khan further advised the Council that UNITAD had made arrangements to transfer evidence concerning financial crimes that were committed in support of ISIL to the Iraqi judiciary and noted that the parliament of the Kurdistan region is currently considering legislation that will establish a court with special jurisdiction over international crimes. The Iraqi Supreme Court has since issued an advisory opinion that raises several constitutional issues concerning the proposed legislation. These are currently being considered by authorities in Baghdad and Erbil.
Although resolution 2379 provides that the Iraqi authorities “are the primary intended recipient” of evidence collected by UNITAD, it 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”. According to the sixth report on UNITAD’s work, which was issued in May, 14 states have requested UNITAD’s assistance with ongoing national proceedings.
Human Rights-Related Developments
On 3 August, the UN Assistance Mission for Iraq (UNAMI), through its Human Rights Office and along with OHCHR, published a report titled Human Rights in the Administration of Justice in Iraq: legal conditions and procedural safeguards to prevent torture and ill-treatment. The report, covering 1 July 2019 to 30 April, finds that while the country’s legal framework explicitly criminalises torture and sets out procedural safeguards to prevent it, “torture is a reality in places of detention throughout Iraq”. It provides an analysis of risk factors for torture and ill-treatment during interrogations and in places of detention, as well as targeted recommendations to the government of Iraq and the Kurdistan Regional Government to build compliance with the protective framework set out in international and Iraqi law.
Women, Peace and Security
On 3 August, the Special Representative on Sexual Violence in Conflict, Pramila Patten, participated in an online event organised by the Free Yazidi Foundation titled “Seven-Year Commemoration of the Yazidi Genocide”. In her remarks, Patten stressed that over 3,000 Yazidi women are still missing, that no convictions of ISIL members for sexual violence crimes have been recorded in Iraq, and that Yazidi women have been stigmatised after caring for children conceived as a result of conflict-related sexual violence.
Referring to Security Council resolution 2467 on women, peace and security, Patten called on the government of Iraq to “design and implement a comprehensive and survivor-centred transitional justice strategy” with the UN and the international community’s support. Noting that the “trauma of genocide is continuously compounded by poverty”, the Special Representative echoed the demands of Yazidi survivors for livelihood opportunities, peace, safe return to their homes, and family reunifications. Patten also called for accountability, reparations, and the right of survivors to political participation.
With reference to Iraq’s March 2021 Yazidi Survivors Law, which deals with accountability for conflict-related sexual violence and assistance to survivors, Patten stressed that the bylaws that will implement this legislation, which are currently being drafted, “need to be as flexible as possible to reach the largest number of beneficiaries”. Resolution 2576, which renewed the mandate of UNAMI until 27 May 2022, underlined the importance of the effective implementation of this law and the need for accountability for the perpetrators of sexual and gender-based violence and emphasised the importance of providing support, reparations, and redress for survivors.
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 an extension, as is expected, then the Council could renew UNITAD’s mandate without making any substantive 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 Iraqi authorities might be used in criminal proceedings in which the death penalty could be imposed. Others take the view that the use of the death penalty is Iraq’s sovereign right, a point Iraq routinely emphasises.
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 and prosecute them, leading to criticism that they are outsourcing their legal obligations. This issue came to a head in the Council in August 2020, when the US vetoed a draft resolution proposed by Indonesia on the prosecution, rehabilitation and reintegration (PRR) of foreign terrorist fighters (FTFs) because the draft did not include the word “repatriation”, instead it had agreed language from previous resolutions that referred to the “return” of FTFs.
Some members also continue to emphasise the need for Iraq to incorporate the international crimes that UNITAD is mandated to investigate into its legal system.
The UK is the penholder on UNITAD.
UN DOCUMENTS ON IRAQ
|Security Council Resolution|
|18 September 2020S/RES/2544||This resolution renewed the mandate of UNITAD until 18 September 2021.|
|Security Council Letter|
|1 May 2021S/2021/419||This letter transmitted the sixth report of the Special Adviser and head of UNITAD Karim Asad Ahmad Khan.|