Justice for ISIL Victims Part 1: A Constitutional Perspective

Efforts to hold ISIL accountable for the heinous crimes committed that may amount to genocide, crimes against humanity, and war crimes, and to attain justice for its victims are stalling due to Iraq’s inadequate constitutional framework and overwhelmed judicial system. Confirming long-held fears, the United Nations established, on 10 May 2021, that there is “clear and compelling evidence” that the unimaginable atrocities suffered by the Yazidis at the hands of ISIL amount to genocide¹. A young Yazidi survivor of sexual enslavement describes the horrific events, recounting² that “when I woke up there were scars on my body and blood all over my clothes, [but] they raped me again and again.” And another 2,868³ Yazidi women and girls enduring a similar fate remain missing.

However, years after ISIL fighters were killed, driven into hiding, or captured amidst a military offensive in northern Iraq and north-eastern Syria, their victims’ demands for justice remain for the most part elusive. Despite the fact, that there has been a surge in arbitrary arrests and detention after the territorial defeat of ISIL, pre-trial detention centers are overcrowded as the judicial system is unable to absorb the vast number of suspects. Thousands of ISIL suspects, including thousands of children, have been detained, many sentenced to death in trials that lasted mere minutes⁴, but most are still waiting to learn of their charges and to get a court hearing.

To support domestic prosecution efforts, the UN Security Council established the UN Investigative Team for Accountability of Da’esh/ISIL (UNITAD)⁵ in 2017 to collect, store and preserve evidence and assist in the preparation of criminal case files for crimes that may amount to genocide, crimes against humanity, and war crimes. However, after almost three years of painstaking work to prepare cases that meet the highest standards of international criminal law, a key challenge for the Investigative Team in the present context remains its inability to actually share evidence with Iraqi authorities, or any other state for that matter. Although the death penalty has been abolished by the Coalition Provisional Authority in 2003, it was later re-instated by Iraqi authorities and there is political pressure to hand down capital punishment for ISIL members responsible for the most serious crimes. However, as a UN body the Investigative Team is rightly not at prevue to share evidence that might assist in proceedings resulting in the death sentence.

Another challenge is that the domestic legal framework appears entirely unprepared to deal with the consequences of ISIL’s emergence. Although the Iraqi Constitution (2005)⁶ clearly stipulates in its Article 7 that entities that promote terrorism, accusations of others being infidels (takfir) or ethnic cleansing, are prohibited and this shall be regulated by law, in the contemporary legal framework international crimes are not criminalized. Thus, Iraqi courts could not prosecute ISIL suspects for crimes that may amount to genocide, crimes against humanity, or war crimes. It is not clear what type of support or collaboration between UNITAD and the Iraqi authorities were envisaged by the Security Council when establishing the investigative body given the existing obstacles. For the Investigative Team to be able to fulfill its mandate, Iraq has to reform its judicial system. In fact, having ratified a number of pertinent treaties, including the Genocide Convention and the Convention against Torture, Iraq is under an obligation⁷ to establish jurisdiction and to lead criminal law proceedings for crimes committed on its territory.

One avenue that is being explored is the adjudication of cases against ISIL members in a re-activated Iraqi High Tribunal. Following the U.S. invasion in 2003, the Tribunal was established as a hybrid mechanism to try members of the deposed Baathist regime for genocide, crimes against humanity, war crimes, or other serious breaches of international human rights and humanitarian law and of Iraqi law. To exercise jurisdiction over international crimes committed by ISIL, the statue of the Tribunal would require a number of amendments and approval from the legislature. The statute would require amendments in terms of (a) subject matter, to try ISIL members, (b) temporal jurisdiction, to adjudicate crimes committed since the rise of ISIL, and (c) personal and territorial jurisdiction to potentially establish extraterritorial jurisdiction over crimes committed by foreign nationals and/or outside Iraqi territory. In additional to criminalizing international crimes under domestic law, the re-activation of the Tribunal would allow Iraqi authorities to circumvent challenges regarding the death penalty as Article 24 of the statute clarifies that sentencing concerning international crimes may refer to judicial precedents and relevant decisions taken in international criminal tribunals.

However, there are a number of significant hurdles in pursuing this avenue. Chief among them is parliamentarians’ reluctance to adopt an amended statute as it is highly unpopular to refrain from adopting the death sentence for the most heinous crimes committed by ISIL, while thousands of ISIL suspects have been convicted and sentenced to death under the terrorism law for mere allegiance to the jihadist group. Moreover, the Tribunal itself is surrounded with controversy as it served to prosecute Baathist members, which mainly belonged to the Sunni community, and may now be seen as a tool for the persecution of Sunnis. The fact that the U.S. played a major role in the establishment of the Tribunal does also not bode well.

Meanwhile, the government of the autonomous Kurdistan Region has introduced a draft legislation⁸ for a special criminal court to adjudicate international crimes committed by ISIL within the region and the ‘disputed territories.’ The legal basis for the tribunal was devised with assistance from UNITAD and is expected⁹ to embody the highest standards of international criminal law. After the draft legislation successfully passed a first reading in the Kurdistan Parliament, it is expected to be approved in a second reading. With the Kurdistan Regional Government’s Prime Minister, Masrour Barzani, vowing¹⁰ to continue collaborating closely with the Investigative Team in preparation for the first public trial, Baghdad would be under pressure to follow suit.

In the absence of applicable regulations in the Iraqi criminal law, ISIL suspects are being charged with terrorism related crimes. Tried under Iraq’s Anti-Terrorism Law (No. 13/2005)¹¹, many suspects have been sentenced to death for mere membership in a terrorist organization, without any distinction being made for the severity of the crimes committed. Failing to adhere to international standards, or even the Iraqi criminal procedure code, suspects are held in overcrowded and inhumane conditions and convictions are based on forced confessions with rampant allegations of torture being a key feature of interrogations. Draconian sentencing is often unleashed on those convicted, including children. In one case¹², a 14 year-old boy was sentenced to 15 years in prison for admitting that he and his family were forced to serve as human shields for ISIL.

The UN Assistance Mission for Iraq (UNAMI) found that terrorism-related trials fail to live up to basic fair trial standards and are putting “defendants at a serious disadvantage¹³.” This is in direct contravention to Iraq’s Constitution, which guarantees that defendants are entitled to counsel provided by the state. In fact, court-appointed defense lawyers¹⁴ are quite open about their misgivings over having to represent “terrorists” and their preconceived notion of “guilt.” From a victims’ perspective, a failure to recognize the heinous crimes committed by ISIL that amount to genocide, crimes against humanity, and war crimes as such, diminishes the gravity and gruesomeness of the inconceivable agony inflicted on Iraq’s communities. From an investigative stand point, convictions for mere membership of individuals that could serve as witnesses and offer critical testimony often result in the loss of essential evidence that could lead to the identification of ISIL members responsible for the most serious crimes. Especially in light of the severe sentencing, with association and membership often resulting in the death-sentence and non-combatant participation in 25 years in prison, the criminal law proceedings involve extremely high stakes¹⁵.

Efforts to promote justice and to achieve accountability have to be undertaken in a politically sensitive manner and seek to foster social cohesion rather than being perceived as a campaign to persecute and marginalize the Sunni community. While most ISIL members ascribed to the Sunni branch of Islam, Sunnis also suffered at the hands of ISIL and were subject to serious crimes committed by militias and armed services—representing various religious and ethnic groups but mostly dominated by the Shia community—in their military offensive to combat ISIL. While ISIL as a non-state actor active in a non-international armed conflict, but also as a terrorist group, does evidently not enjoy combatant immunity, the Shia militias that are nominally linked to the Iraqi Armed Forces do benefit from such immunity. To promote some sense of fairness and accountability, forces fighting for or affiliated with the armed services that have committed the most serious crimes should also face legal consequences. At the communal level, as well, individuals have often become victims of deep-seated sectarian divides or communal tensions, with suspects being arrested simply at the behest of rival families who report individuals for their alleged association to ISIL. Thus, transitional justice in post-conflict Iraq has to be fair and holistic to avoid sowing the seeds for the emergence of ISIL 2.0.

The Iraqi judicial system is utterly inadequate for dealing with such a sheer insurmountable number of cases—to be sure, as would the judicial system of any other country. Between January 2018 and October 2019 alone, the Iraqi judiciary processed over 20,000 cases¹⁶ of terrorism-related crimes, and still, thousands remain in backlog. Just in relation to international crimes committed in the Sinjar district, UNITAD has identified 1,444 suspects¹⁷ responsible for genocide, crimes against humanity, and war crimes. Mechanisms applying extraterritorial jurisdiction at the international, regional, or national level may offer alternative avenues to attain justice for the heinous crimes suffered by victims of ISIL. The international community has to shoulder part of the responsibility, especially states whose nationals have joined ISIL. States should repatriate and prosecute foreign nationals, particularly as the application of the death penalty and the absence of due process guarantees is in direct violation of treaty law to which many of these states are parties.