What's In Blue

Posted Wed 14 Sep 2022

Iraq: Vote on UNITAD Mandate Renewal*

Tomorrow morning (15 September), the Security Council is expected to vote on a draft resolution renewing the mandate of the UN Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL (UNITAD) for one year, until 17 September 2023.

Background

UNITAD was established through resolution 2379 of 21 September 2017 for an initial period of two years, following a request by the Iraqi government. According to resolution 2379, further extensions of UNITAD’s mandate may be requested by Iraq “or any other government that has requested [UNITAD] to collect evidence of acts that may amount to war crimes, crimes against humanity, or genocide, committed by ISIL (Da’esh) in its territory”. Since 2019, UNITAD’s mandate has been renewed for one-year periods every September, most recently by resolution 2597 of 17 September 2021.

When UNITAD was created, the Council asked the Secretary-General to establish an investigative team to support Iraq’s domestic efforts to hold the Islamic State in Iraq and the Levant (ISIL, also known as Da’esh) accountable for international 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, which formally began its work on 20 August 2018, is also responsible for promoting accountability globally for atrocity crimes committed by ISIL.

In an 11 September letter to the Council president, Iraqi Minister of Foreign Affairs Fuad Hussein requested the renewal of UNITAD’s mandate for another year, while stressing the importance for UNITAD to hand over all evidence and materials collected by the investigative team to Iraqi authorities within a specific and clear time frame. In the most recent Council briefing on UNITAD, which was held on 8 June, Iraq said that the major challenge for the investigative team is to “deliver justice and to submit all evidence to the Iraqi Government as soon as possible”. Iraq also underscored that “UNITAD’s mandate is not complete if it stops at collecting, preserving and storing evidence without allowing the use of that evidence in national legal contexts.”

At present, 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.

Certain Council 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. 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.

Draft Resolution

The UK, the penholder on UNITAD, circulated a first draft of the resolution to Council members on 12 September. It seems that the initial draft stipulated a one-year straightforward renewal of UNITAD’s mandate as set out in resolution 2597. Several Council members apparently submitted proposals aimed at trying to address the Iraqi concerns about the importance of handing over the evidence collected by UNITAD to Iraqi authorities in a timely manner. Yesterday (13 September), the UK placed a revised draft text under silence until this morning (14 September). This draft included an additional 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, consistent with applicable international law and the Investigative Team’s Terms of Reference”. After passing the silence procedure, the draft was put in blue today.

The draft resolution in blue retains UNITAD’s mandate, as set out most recently in resolution 2597, and renews it until 17 September 2023. Apart from amendments to relevant dates and document numbers, the draft resolution retains the main elements from resolution 2597. The main change is the addition of the abovementioned preambular paragraph on the importance of sharing evidence collected by UNITAD with the relevant Iraqi authorities in a timely manner.

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*Post-script: On 15 September, the Security Council unanimously adopted resolution 2651, which renewed the mandate of the UN Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL (UNITAD) for one year, until 17 September 2023.

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