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 in Iraq (UNITAD). The current mandate expires on 17 September.
Background and Key Recent Developments
The Council established UNITAD through resolution 2379 of 21 September 2017 for an initial period of two years, following a request by the Iraqi government. It has since renewed the mechanism annually, most recently with resolution 2651 of 15 September 2022. The team is mandated to support Iraqi domestic efforts to hold 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”. The collected evidence is intended to support investigations carried out by Iraqi authorities or by authorities in third countries at their request.
Resolution 2379 emphasised that UNITAD should be “impartial, independent, and credible” and act consistently with its terms of reference, the UN Charter, UN best practice, and relevant international law, including international human rights law. UNITAD’s investigative priorities include the development and use of chemical and biological weapons by ISIL; 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; the mass killing of unarmed Iraqi air force cadets from Tikrit Air Academy in June 2014; and crimes committed against the Christian, Kaka’i, Shabak, Shi’a Turkmen, and Sunni communities. Specialised thematic units are also investigating sexual and gender-based crimes, crimes against children, and the financing of ISIL.
Because UNITAD is implementing its mandate in accordance with “UN best practice”, it does not share evidence for criminal proceedings in which capital punishment could be imposed. At present, the international crimes that UNITAD is mandated to investigate have not been incorporated into Iraq’s legal system. As a result, perpetrators who have committed acts that contravene international criminal law are usually charged with terrorism offences. Under Iraqi law, the death penalty can be imposed for these offences, which has prevented UNITAD from sharing its evidence of ISIL’s potential violations of international criminal law with Iraq’s government—the primary intended recipient. In October 2020, a draft law that would incorporate international crimes into Iraq’s domestic legal system was proposed in the Iraqi parliament, but the legislation has not advanced since then. On 6 March, UNITAD and Iraqi authorities announced the establishment of a joint working group to study the issue further.
UNITAD is led by a Special Adviser who is responsible for developing the team’s investigative strategy, promoting accountability globally for atrocity crimes committed by ISIL, and providing biannual updates to the Council on the team’s activities. On 7 September 2021, UN Secretary-General António Guterres announced the appointment of Christian Ritscher of Germany as the second Special Adviser and head of UNITAD, succeeding Karim Asad Ahmad Khan of the UK, who now serves as ICC Prosecutor.
During his latest briefing to the Council on 7 June, Ritscher noted UNITAD’s most recent achievements and outlined advances in its different areas of investigation. He described progress in the team’s case-assessment reports on ISIL’s gender-based crimes, crimes against children, and crimes committed against the Sunni population in Al-Anbar and against the Christian communities in Nineveh. He also described the team’s continued provision of capacity-building and technical assistance to Iraqi judicial authorities, including a large-scale effort to digitise ISIL records and battlefield evidence “to ensure that this evidence is admissible before any competent court, whether in Iraq or in other States where prosecutions of ISIL members for international crimes are taking place”. He said the effort has so far led to the digitisation of eight million pages of evidentiary material.
During the June briefing, Ritscher reiterated that “the purpose of UNITAD’s work in Iraq is not simply to establish a record for ISIL crimes, but to hold ISIL members who committed such heinous international crimes accountable through evidence-based trials and before competent courts”. He identified “an appropriate legal framework” as the “most important element” and “main challenge” to achieving this outcome. He underscored that UNITAD remains committed to supporting the Iraq-led process for the implementation of a legal framework that will enable the prosecution of ISIL’s criminal acts as international crimes before national courts, and noted the establishment of the joint working group as a positive development in that regard.
On 13 June, UNITAD, India, and Iraq hosted an event at UN headquarters in New York titled “ISIL’s Use of Chemical Weapons: Global Threat”. Speakers at the event included Ritscher; Ambassador R. Ravindra (India); Charge d’Affaires Sarhad Fatah (Iraq); Ali Noaman Jabbar, Judge of the Taza Investigation Court in Iraq’s Kirkuk governate; and UNITAD investigators and UN technical experts.
The Secretary-General’s latest biannual report on the threat posed by ISIL to international peace and security, dated 31 July, said that the group continued to command between 5,000 and 7,000 members across Iraq and Syria, “despite sustained counterterrorism operations by Member States”. According to the report, counterterrorism efforts by Iraqi forces continued to result in a reduction in ISIL activities, but the group has still maintained its low-grade insurgency, exploiting security gaps along the border of the Kurdistan region of Iraq to enable attacks and resupply its cells in desert and mountainous areas.
Key Issues and Options
The primary issue for the Council in September is the renewal of UNITAD’s mandate. According to resolution 2379, mandate renewals are “to be decided at the request of the Government of Iraq or any other government that has requested the Team to collect evidence of acts that may amount to war crimes, crimes against humanity, or genocide, committed by [ISIL] in its territory”. In practice, this has been interpreted to mean that UNITAD’s annual mandate renewals are dependent upon the Council’s receipt of a letter from Iraq requesting the extension. This year, pending receipt of the letter, the UK is likely to seek another straightforward one-year extension.
Council and Wider Dynamics
Both the Council and the Iraqi government are generally supportive of UNITAD. Since the team’s establishment, its annual mandate renewals have been requested by Iraq and unanimously adopted by Council members.
Differences exist, however, regarding the interpretation of UNITAD’s mandate. Certain members, particularly those that have abolished capital punishment in their own legal systems, remain concerned about the possibility that evidence collected by UNITAD might be used in criminal proceedings in which the death penalty could be imposed, and emphasise the need for Iraq to incorporate international crimes into its legal framework. Some of these members share the UN’s view that UNITAD’s mandate prevents it from providing evidence to Iraqi authorities while there is still a possibility that this evidence would be used in cases that could result in the death penalty.
Others argue, however, that Iraq bears primary responsibility for determining how to prosecute those who have committed crimes on its territory and encourage UNITAD to share evidence with Iraqi authorities as soon as possible. These members tend to suggest that Iraq is intended to be the main recipient of evidence collected by UNITAD and often emphasise the importance of respecting Iraq’s sovereignty when it comes to pursuing accountability for international crimes.
The Council has typically renewed the team’s mandate through straightforward extensions, but during negotiations in 2022, the latter group—supported by Iraq—was successful in calling for a new preambular paragraph underscoring “the importance of sharing evidence collected by [UNITAD] with the relevant Iraqi authorities, in a timely manner, for eventual use in fair and independent criminal proceedings”. To placate opposing members, however, the UK, which is the penholder on UNITAD, also included language specifying that this must be done “consistent with applicable international law and the Investigative Team’s Terms of Reference”. It is likely that the same issue will affect negotiations over this year’s renewal.
UN DOCUMENTS ON UNITAD
|Security Council Resolution|
|15 SEPTEMBER 2022S/RES/2651||This resolution extended UNITAD’s mandate for one year.|
|Security Council Letter|
|22 MAY 2023S/2023/367||This letter transmitted the tenth report of the Special Adviser and head of UNITAD.|