As UNITAD Determined The Daesh’s Atrocities As Genocide, Will The U.N. Security Council Act?
On May 10, 2021, the United Nations Investigative Team to Promote Accountability for Crimes Committed by Da’esh/Islamic State in Iraq and the Levant (UNITAD) updated the U.N. Security Council about the progress of investigations against Daesh fighters. Among the discussed next steps were domestic prosecutions in Iraq for war crimes, crimes against humanity and genocide in 2022, namely, once Iraq introduces relevant laws concerning international crimes. UNITAD further updated the U.N. Council about other states prosecuting Daesh fighters. However, little was said about the option of an international tribunal, a step called for by survivors and families of victims.
During his speech, Mr. Karim Khan QC, Special Adviser and Head of UNITAD confirmed that “based on [its] independent criminal investigations, UNITAD has established clear and convincing evidence that genocide was committed by [Daesh] against the Yazidi as a religious group.” He further added that “The intent of [Daesh] to destroy the Yazidi, physically and biologically, is manifest in its ultimatum – applied remorselessly to all members of their community – to convert or die.” Lastly, he emphasized that these crimes are ongoing, and as such, require a comprehensive response.
Understandably, this was not the first time the Daesh atrocities were considered against the element of genocide in Article II of the UN Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). The Council of Europe, the European Parliament, the U.S. Congress and the State Department, the Dutch Government, the U.K. House of Commons, the Lithuanian, Canadian, Australian, French, Hungarian, and Austrian Parliaments and others have all recognized the Daesh atrocities as genocide. However, UNITAD is a U.N. body specifically established to collect the evidence, analyze it, and preserve for future prosecutions. The amount to evidence gathered and considered by UNITAD has not been available to anyone before. While not a judicial body, UNITAD’s determination of the atrocities as genocide should be given the significance it deserves.
What does it mean for the U.N. Security Council that UNITAD recognized the atrocities as genocide? It means that the U.N. Security Council must act to prevent further atrocities and punish the perpetrators.
As UNITAD collects and preserves the evidence of the Daesh atrocities, it is crucial to ensure that there is a tribunal that will be able to engage with the evidence and secure prosecutions. UNITAD resembles the commissions of experts established by the U.N. Security Council to consider the atrocities in Bosnia and Rwanda. In both cases, once the commissions of experts determined the atrocities as genocide, the U.N. Security Council proceeded with establishing ad-hoc tribunals to prosecute the perpetrators, namely, the International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR).
Despite the establishment of UNITAD, the U.N. Security Council has not yet made proposals to follow this up with a resolution establishing an ad hoc tribunal. It would be a logical (and a crucial) next step for the U.N. Security Council to establish an ad-hoc tribunal to prosecute Daesh fighters for their crimes in Iraq. Indeed, during the U.N. Security Council meeting on May 10, 2021, Nadia Murad, Nobel Peace Prize laureate and advocate for Yazidis, stressed that “public trials and recognition of the genocide will help avert future violence and facilitate the healing of survivors. (...) international tribunals are needed to address the universal magnitude of [Daesh]’s crimes.” Nadia Murad and Amal Clooney of Doughty Street Chambers have been calling upon the U.N. Security Council to refer the situation in Iraq to the International Criminal Court or establish an ad-hoc tribunal. Similarly, Pieter Omtzigt, Dutch Parliamentarian, has been working with experts on a proposal to establish such an ad-hoc tribunal. Later, several states came together to consider such an option. However, neither resulted in concrete proposals and steps towards implementation.
If the international community cannot unite in purpose to prosecute Daesh, a non-state actors, there is little hope that it could ever address atrocities perpetrated by state actors. This inaction in the face of genocide must be addressed as a matter of urgency.