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Council Of Europe Leading The Legal Fight Against Daesh

On 27 January 2015, Parliamentary Assembly of the Council of Europe (PACE), an assembly of parliamentarians from 47 European countries, adopted Resolution 2091 (2016) Foreign fighters in Syria and Iraq recognising, as the first international institution, the atrocities committed by Daesh fighters as ‘genocide and other serious crimes punishable under international law.’ The Council of Europe is an international organization established in 1949 with the aim of upholding human rights, democracy, and the rule of law in Europe. Despite its European focus, the Council of Europe has also been vocal on issues pertaining to situations outside of Europe, especially where the link to European affairs is present. This is certainly true concerning the Daesh atrocities perpetrated against religious minorities in Syria and Iraq and the issue of European Daesh fighters. Indeed, over the last couple of years, PACE has been at the forefront of the international attempts to recognize the Daesh atrocities as genocide and to work towards bringing them to justice.

A member of the US-backed Syrian Democratic Forces (SDF) removes a Daesh flag in the town of Tabqa, about 55 kilometres (35 miles) west of Raqa city, on April 30, 2017, as they advance in their battle for the group's de facto capital. (Photo credit: DELIL SOULEIMAN/AFP/Getty Images)

The Resolution 2091 was followed by similar recognitions and recommendations by the European Parliament, the US Congress and State Department, the UK House of Commons, the Parliaments of Australia, Canada, France, Austria, and Hungary. Despite the growing consensus among international institutions and states that atrocities committed against Daesh amount to genocide, genocide that these states are under an obligation to prevent and punish, the act of punishing the atrocity has not been carried out.

In October 2016, Pieter Omtzigt, Dutch Parliamentarian, was announced the rapporteur on ‘prosecuting and punishing crimes against humanity or possible genocide’ to prepare a report and a resolution in response to his findings. Omtzigt held a hearing on the topic that was followed up by an inquiry on states’ exercise of the universal jurisdiction over Daesh crimes under international criminal law.

The inquiry revealed that while a number of states prosecuted the so-called Daesh foreign fighter returnees (Daesh fighters coming from countries across Europe), the fighters were not prosecuted for the crime of genocide or crimes against humanity or complicity in these crimes, but for lower crimes, such as terrorism, funding of terrorism, membership in a terrorist organisation etc. Despite such prosecutions being important, they do not fulfil states’ obligations under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Convention on Genocide). Moreover, the number of prosecutions is significantly lower than the number of returnees across the states.

For example, in the case of the UK, the number of Daesh foreign fighters that joined Daesh in Syria or Iraq is assessed at over 850, according to Soufan Group. The official assessments are also that approximately half of them have returned to the UK (425+). However, as in accordance with the information provided by the UK Government to Omtzigt’s response, as of January 2017, there have been only 101 convictions. This means that 300+ of Daesh foreign fighters, who are now back in the UK face no criminal accountability after it is highly likely that they committed crimes in Syria and Iraq, crimes amounting to genocide, crimes against humanity or war crimes. This raises several questions regarding how effective the UK approach to countering domestic terrorism is: the UK Government continues to propose new laws or policies to counter terrorism (or broadly defined extremism) limiting the rights of all, but at the same time does not want to deal with the individuals that are at the centre of the problem: the returning Daesh foreign fighters. The failure to bring Daesh foreign fighters to justice is visible across Europe.

Omtzigt’s report was adapted by PACE in September 2017 and only a month later, on October 12, 2017, PACE further adopted his resolution ‘Prosecuting and punishing the crimes against humanity or even possible genocide committed by Daesh.’ The resolution passed with overwhelming support. The most noteworthy provisions of Resolution 2190 include calling upon members of the Council of Europe to ensure that they prosecute Daesh fighters whether by exercising the universal jurisdiction, prosecuting for the crimes committed within their jurisdiction, and aren’t obstructing a UN Security Council referral to the ICC.

Resolution 2190 sent a very clear message, which is that the responsibility to prosecute Daesh fighters for their crimes does not lie exclusively with Iraq or Syria. States and international institutions must work together towards this aim. Omtzigt was clear in his report that the leading Daesh fighters should be prosecuted by an international tribunal, as this has been done in relation to other international mass atrocities. Resolution 2190 is also non-binding, however it is still an important political signal. Resolutions like this one have been used to establish domestic policies on issues of international concern.

Omtzigt has a clear plan for the Netherlands that he will be proposing to the Dutch government. Already on December 22, 2017, the Dutch government published a letter regarding the Daesh atrocities perpetrated against religious groups in Syria and Iraq. The letter states that Daesh in all likelihood commits genocide and crimes against humanity. It further states that the Convention on Genocide applies. As the Netherlands will take a seat at the UN Security Council in January 2018, Omtzigt will be asking the Dutch government to lead the efforts to establish an international or hybrid tribunal to prosecute leading Daesh fighters. The step is crucial to ensure justice for the victims. Justice that cannot be done using domestic courts only. Daesh crimes indeed require international attention and common efforts.

(c) 2017 Forbes

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