What's In Blue

Posted Thu 14 Sep 2023

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 a final one-year non-extendable term, until 17 September 2024.

Background

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 through resolution 2651 of 15 September 2022. The team is mandated to support Iraqi 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”. 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. 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 in Iraq 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. 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, including by inviting “concerned parliamentarians and other experts as they deem needed”.

During his latest briefing to the Council on 7 June, Special Adviser and head of UNITAD Christian 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 both the “most important element” and the “main challenge” to achieving this outcome. Ritscher underscored that UNITAD remained committed to supporting the Iraqi-led process for the implementation of a legal framework that would 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.

Some 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.

According to resolution 2379, renewals of UNITAD’s mandate 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. In a 5 September letter to the Council, Iraqi Minister of Foreign Affairs Fuad Hussein requested the renewal of UNITAD’s mandate for “a period of one year without the possibility of extension”. The letter emphasised that during this period, the team “must turn over all evidence that it obtained in Iraq from the time that it began fulfilling its mandate in 2017”. It also requested UNITAD not to share further evidence with third countries and to disclose to Iraqi authorities the evidence that the team has previously shared, “so that the Government can consider such evidence with those countries in order to promote national and international efforts to prosecute the perpetrators and deny them safe haven”.

In a joint statement dated 12 September, a group of Iraqi and international civil society organisations expressed concern about Iraq’s request for a non-renewable extension of UNITAD’s mandate. The statement noted that the team was established following advocacy by survivors aiming to ensure that evidence of ISIL crimes would be preserved “until a holistic strategy from both Iraq and the international community would be in place to address ISIL crimes”, claiming that “[t]his has yet to happen”. The statement described the prospect of UNITAD’s closure as “all the more alarming since Iraq currently has no legal framework in place to use UNITAD’s evidence and also has no experience prosecuting international crimes”. It added that Iraq has not communicated any plan on how it is planning to advance this process without UNITAD’s expertise.

Draft Resolution

The UK, the penholder on UNITAD, circulated an initial draft of the resolution to Council members on Monday (11 September) and convened consultations on the text on the following day. On Wednesday (13 September), the penholder circulated a revised draft and placed it under silence procedure until today (14 September). China and Russia broke silence on that draft. Subsequently, the penholder placed a second revised draft directly in blue, without another silence procedure.

The draft resolution in blue takes note of Iraq’s request for a non-extendable one-year extension of UNITAD’s mandate and “decides accordingly to extend the mandate of the Special Adviser and the Team until 17 September 2024 only”. It further notes Iraq’s request for UNITAD to share its evidence with national authorities within this period, and requests the Secretary-General to submit to the Security Council, by 15 January 2024, a report “setting out recommendations for implementing this request with full respect for the sovereignty of Iraq”. It also requests UNITAD, with Iraq’s approval, to determine the modalities for evidence sharing with third countries and to communicate to Iraq what previous evidence has been shared. Finally, it requests the Special Adviser to develop, by 15 March 2024, in consultation with Iraq, a roadmap for the completion of the team’s mandate, including with respect to Iraq’s request for evidence, and the necessary steps for the team’s closure.

It appears that Iraq’s request for a final, non-renewable mandate extension was a significant issue during the negotiations. The penholder’s initial draft noted “the request from the Government of Iraq contained in its letter” and subsequently decided to extend the mandate for one year, without further specification. However, following proposals from several Council members—including Brazil, China, Russia, and the United Arab Emirates (UAE)—the first revised draft more specifically noted “the request from the Government of Iraq for a non-extendable one-year extension” before extending the mandate. After China and Russia broke silence on that draft, the draft in blue notes the request “for a non-extendable one-year extension” and decides “accordingly” to extend the mandate for one year only.

Another issue during the negotiations was whether and how the Council should mandate the team to share its evidence with Iraq. While some members apparently sought to directly instruct the team to do so, others were of the view that it was necessary to request the Secretary-General to pronounce a position on the issue, since the impediment to evidence sharing was apparently partially rooted in interpretation of “UN best practice”. Reflecting the latter position, the penholder’s initial draft requested the Secretary-General to submit a report with recommendations “addressing” Iraq’s request. Following comments from members seeking a more direct mandate, however, the draft in blue calls for recommendations “implementing” the request, “with full respect for the sovereignty of Iraq”.

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