ISIL/Da’esh Accountability: Briefing and Consultations on UNITAD
Tomorrow (26 November), the Security Council is scheduled to hear a briefing by Karim Asad Ahmad Khan, the Special Adviser and head of the UN Investigative Team for Accountability of Da’esh (UNITAD), followed by consultations. This will be Khan’s third briefing to the Council. His statement is expected to focus on his third report (S/2019/878) and further developments since it was shared with Council members in mid-November. Kachi, a civil society briefer, is also expected to speak.
Kachi may share the experience of having lost family members to ISIL crimes and describe his support for UNITAD in the implementation of its mandate.
On 21 September 2017, the Council adopted resolution 2379, which requested 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, UNITAD is tasked to promote accountability globally for atrocity crimes committed by ISIL in order to counter ISIL narratives that have led people to join the terrorist group. UNITAD is characterised by resolution 2379 as “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 $19.5 million for 2019; it also relies on voluntary contributions made to the trust fund established by resolution 2379 and on in-kind contributions, including the provision of expert personnel. According to Khan’s third report, contributors to the trust fund so far are Cyprus, Germany, the Netherlands, the Philippines, Qatar, Slovakia, the UK, the United Arab Emirates, and the US. Some of the contributions are earmarked for specific aspects of the investigative team’s work. Germany’s contributions are earmarked for the investigation of financing of ISIL crimes, for example, and the United Arab Emirates’ contributions will support UNITAD’s work with regard to sexual and gender-based crimes.
UNITAD’s implementation strategy entails three initial areas for investigation: 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 the mass killing of unarmed Iraqi air force cadets from Tikrit Air Academy (also known as “Camp Speicher”) in June 2014. According to the Special Adviser’s third report, UNITAD has made progress in all these three areas. In Sinjar, five more excavations (in addition to the twelve referred to in his second report) were conducted. With regard to crimes committed in Mosul and Camp Speicher, the investigative team has focused on the collection of existing evidence held by Iraqi authorities. Due to an increase in voluntary contributions, UNITAD has added more areas for investigation to the initial ones. Those include crimes committed against Turkmen, Sunni, Shabak, Kaka’i and Christian communities. In order to be closer to affected communities and to ensure witness protection, UNITAD now has a facility in northern Iraq.
Khan may also go into detail on progress in UNITAD’s recruitment process. According to his report, UNITAD’s overall staff stands at 105, representing all of the UN’s regional groups. Women make up 53 per cent of substantive and support positions, as well as half of the senior management positions. Iraqi nationals continue to make up more than one-third of professional staff. Expert personnel from Germany and Sweden are working with UNITAD; Australia, France, Finland, Turkey, and Saudi Arabia have further committed to providing experts.
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. In that context, UNITAD has continued mapping ISIL command structures as they existed in 2014 and has identified 74 individuals from these command structures, of whom 17 are confirmed to be in the custody of Iraq. On 31 October, ISIL/Da’esh confirmed the death of its leader Abu Bakr al-Baghdadi near Barisha, Syria, during a raid conducted by US special forces.
Khan may elaborate on ways that his team is engaging with the Iraqi government, the Kurdistan Regional Government, affected communities (including religious communities and local and tribal leaders), non-governmental organisations, survivors, groups representing communities affected by ISIL, UN member states and groups of states, the UN system, other international organisations, entities from the private sector and academia.
Khan may further present the investigative team’s priorities for the next half year. Those include, among others, completing the recruitment of all national professional staff by December and finishing mass excavations in at least three more sites.
The challenges faced by UNITAD may also feature in the meeting. The international crimes that UNITAD is mandated to investigate are not incorporated into the domestic legal system of Iraq and are currently prosecuted as terrorist crimes. According to the Special Adviser’s latest report, the government of Iraq is working towards introducing legislation that would allow for ISIL crimes to be prosecuted as genocide, war crimes, and crimes against humanity. Meanwhile, it seems that due to “limitations on the number of forums in which evidentiary material collected by the Investigative Team can be used”, the investigative team has been unable to share evidence with the Iraqi government. UNITAD is, under resolution 2379, implementing its mandate according to “UN best practices”, meaning that no evidence may be shared for criminal proceedings where capital punishment may be imposed. The death penalty is incorporated into the Iraqi legal system. Together with Iraqi authorities, UNITAD was, however, able to support proceedings against two Iraqi nationals before the Finnish Appeals Court.
If Council members decide to make statements after Khan’s briefing, they are generally expected to express support for the ongoing work of Khan and his team. Countries such as China and Russia may again bring up the issue of the prosecution of foreign terrorist fighters currently on Iraqi soil. Some of the governments concerned have shown reluctance to take back their nationals in order to prosecute them. Other members may welcome Iraq’s efforts to incorporate into its domestic legal system, the international crimes that UNITAD is mandated to investigate.
Members whose national jurisdictions do not have the death penalty continue to be concerned about the possibility that evidence shared by the investigative team 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. That issue, and how UNITAD can address it in the future, may arise during consultations.