ISIL (Da’esh) Accountability: Vote on Draft Resolution
Tomorrow (21 September), the Security Council is expected to adopt a resolution on accountability for crimes committed by the Islamic State in Iraq and the Levant (ISIL) also known as Da’esh, on the territory of Iraq. The UK, the penholder in the Council, worked closely with Iraq in drafting this resolution, which was first circulated to all 15 Council members on 12 September. It passed through silence on Monday (18 September) and was put in blue the same day.
The spread of ISIL throughout the territory of Iraq and Syria starting in 2014 has been linked to widespread atrocities against civilian populations. Over the course of the past two years, UN member states, including Iraq, have continued to call for accountability for these crimes. On 31 May and 16 June 2016, Canada sent letters to the president of the Council calling for an investigation of the war crimes, crimes against humanity and genocide in Iraq and Syria that may have been committed by ISIL (S/2016/499 and S/2016/545). Furthermore, Canada asked the Council to establish a mechanism for “investigating reports of violations of international law by ISIL in Iraq and Syria, for determining whether these violations constitute acts of genocide or other serious international crimes and for identifying the perpetrators of such violations and measures to ensure accountability for the crimes…including referral to the International Criminal Court, as appropriate” (S/2016/545).
During the 2016 UN General Assembly, UK Foreign Secretary Boris Johnson and Foreign Ministers Ibrahim Al-Jafari of Iraq and Didier Reynders of Belgium launched a global initiative on accountability related to ISIL crimes, whose main objectives were defined as: supporting national and international efforts to bring ISIL to justice; empowering survivors; and ensuring that the pursuit of justice unites communities (local, national and international).
Although the governments of the UK and Iraq worked on their initiative for almost year, the proposal of establishing an accountability mechanism gained momentum with Iraq’s 14 August letter (S/2017/710) to the Council asking for the assistance of the international community in Iraq’s efforts to prosecute ISIL and announcing that it was working with the UK to present a draft resolution to the Council on this issue. In the letter, Iraq emphasised that it must maintain its “national sovereignty and retain jurisdiction, and that its laws must be respected, both when negotiating and implementing the resolution”.
The Draft Resolution
The draft resolution was circulated to all Council members on 12 September. The changes made during the negotiations were primarily of a technical rather a substantive nature. It seems that considerable deference was paid during the negotiations to Iraq’s emphasis on “maintain[ing] its national sovereignty and retain[ing] jurisdiction”, as outlined in its 14 August letter.
The draft requests the Secretary-General to establish an investigative team consisting of Iraqi investigative judges and other criminal experts as well as international experts. The team will support Iraq’s domestic efforts to hold ISIL accountable by collecting, preserving and storing evidence of acts that may amount to war crimes, crimes against humanity and genocide committed by ISIL in Iraq. The draft indicates that Iraqi authorities will be the primary intended recipients of the evidence collected by the team. However, the evidence collected by the team could eventually be used in criminal proceedings in national-level courts (Iraqi or otherwise) or complement investigations that are carried out in third countries. Any other uses of the evidence would require the approval of the government of Iraq.
Another important aspect of the draft resolution is related to the potential request by another state for the collection of evidence, by the team, of crimes committed by ISIL on its own territory. In this case, the Council would have to approve the request and could further request the Secretary-General to provide separate terms of reference pertaining to the operation of the team in another state.
The team, whose initial mandate will be two years, will be headed by a Special Adviser to be appointed by the Secretary-General. The Special Adviser will also work to promote efforts to bring accountability for ISIL crimes globally and work with survivors to ensure that their interests in achieving accountability of ISIL are recognised in a manner consistent with relevant national laws.
While the draft appears to have widespread support in the Council, some issues were raised during the negotiations. Some members wanted to include broader language on accountability focusing not just on accountability for ISIL but for other groups as well for crimes committed in Iraq Some further questioned whether the geographic focus of the draft should be wider, given the international reach of ISIL. However, it appears that members were sensitive to Iraq’s desire to keep the focus on crimes committed by ISIL on Iraqi territory.
Financing of the implementation of the resolution was another matter of discussion. The initial draft envisioned that all aspects of implementation of the resolution would be financed by the UN. However, it seems that the US, supported by some other members, suggested that the Secretary-General should establish a trust fund for additional voluntary contributions. This reference was included in the final draft.
In terms of next steps, according to the draft, the Secretary-General is requested to submit to the Council for its approval terms of reference for the investigative team’s mandate that are also acceptable to the government of Iraq. The resolution will further require the Special Adviser to present a report to the Council on the team’s activities within 90 days of the start of its operations and every 180 days thereafter.