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Bringing Daesh To Justice - On The Road To Nowhere?

On September 21, 2017, the UN Security Council unanimously passed the resolution 2379 aimed at establishing a mechanism for bringing Daesh to justice. It establishes an Investigative Team tasked with collecting evidence of Daesh atrocities in Iraq. The resolution has received widespread praise. However, the resolution, as a whole, may be too weak to ensure justice for the victims.

The UN Security Council votes on the resolution 2379. (Photo credit: DON EMMERT/AFP/Getty Images)

The Resolution

The resolution requires the UN Secretary-General to establish an Investigative Team in Iraq consisting of Iraqi judges who will work together with Iraqi and international experts. The Investigative Team has been given a mandate of two years and will be led by a Special Adviser appointed by the UN Secretary-General.

The Investigative Team will support the Iraqi domestic courts by ‘collecting, preserving, and storing evidence in Iraq of acts that may amount to war crimes, crimes against humanity and genocide committed by [Daesh] in Iraq.’ The evidence obtained is to be used ‘before national courts, and complementing investigations being carried out by the Iraqi authorities, or investigations carried out by authorities in third countries at their request.’ The resolution also raises the possibility for the newly established team to collect evidence of Daesh atrocities in countries other than Iraq. Any such request would first need to be approved by the UN Security Council.

The resolution can be praised for expanding the scope of the atrocities in focus to ‘murder, kidnapping, hostage-taking, suicide bombings, enslavement, sale into or otherwise forced marriage, trafficking in persons, rape, sexual slavery and other forms of sexual violence, recruitment and use of children, attacks on critical infrastructure, as well as its destruction of cultural heritage, including archaeological sites, and trafficking of cultural property.’ The destruction of cultural heritage and trafficking of cultural property remain an element of the Daesh atrocities that have not gained widespread attention. Considering the patterns of such atrocities perpetrated by Daesh aimed at the destruction of the signs of religious minorities in various regions - the atrocities cannot be neglected or degraded in their importance. In fact, they contribute to the establishment of the specific intent to destroy the protected groups - specific intent is of course required for the atrocities to be classified as genocide.

However, the main genocidal crime perpetrated against Christians, namely forced displacement, was excluded from the resolution. This despite the fact that in August 2014, over 120,000 Iraqi Christians from Nineveh Plains were forcibly displaced to Kurdistan and other regions. Similarly, thousands of Yazidis were forcibly displaced from Sinjar. The failure to include forced displacement in the resolution causes concerns. Is it aimed at excluding the cases of forcibly displaced Christians or Yazidis from the investigation? Is it 'merely' gross negligence of the drafters who managed to forget about this mass atrocity? Lastly, as cultural heritage received more attention than the forcible displacement of thousands of people - is it the ultimate failure of the drafters to, yet again, put more value to the destruction of cultural properties than to the suffering of thousands of people fleeing for their lives. The issue whether forced displacement will be within the scope of the inquiry will have to be clarified. It may be the case that the Investigative Team will consider the atrocities even if they are not expressly included in the resolution (and especially as the list of atrocities is included in the preambular and not operative paragraphs of the resolution). One can hope so. However, as any action starts with the recognition of the problem - it is doubtful.

The resolution is very clear in its purpose. Once instigated, it is envisaged that Daesh fighters will be prosecuted by ‘competent national-level courts’ and not international or hybrid tribunals. Any other use of the evidence obtained by the Investigative Team is to be ‘determined in agreement with the Government of Iraq on a case by case basis.’ The fact that Daesh fighters are to be prosecuted by Iraqi national courts also causes concerns that cannot be neutralised by the operative paragraph encouraging ‘Member States, and regional and intergovernmental organisations, to provide appropriate legal assistance and capacity building to the Government of Iraq in order to strengthen its courts and judicial system.’


(c) 2017 Forbes

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