As UNITAD has determined that the atrocities committed by Daesh were genocide, will the UN Security Council act?
On May 10, 2021, the United Nations Investigative Team to Advance Accountability for Crimes Committed by Daesh / Islamic State in Iraq and the Levant (UNITAD) briefed the UN Security Council on the progress of investigations against Daesh fighters. Among the next steps discussed were national prosecutions in Iraq for war crimes, crimes against humanity and genocide in 2022, that is, after Iraq introduces the relevant laws regarding international crimes. UNITAD further informed the UN Council of other states prosecuting Daesh fighters. However, little has been said about the option of an international tribunal, a measure requested by survivors and families of victims.
During his speech, Mr. Karim Khan QC, Special Advisor and Head of UNITAD confirmed who “based on [its] independent criminal investigations, UNITAD has established clear and convincing evidence that the genocide was committed by [Daesh] against the Yazidis as a religious group. He further added that “the intention of [Daesh] destroying the Yazidis, physically and biologically, manifests itself in its ultimatum – applied without remorse to all members of their community – to convert or die. Finally, he stressed that these crimes are ongoing and as such require a comprehensive response.
Naturally, this was not the first time that Daesh atrocities were considered against the element of genocide in Article II of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). . The Council of Europe, the European Parliament, the United States Congress and the Department of State, the Dutch government, the United Kingdom House of Commons, the Lithuanian, Canadian, Australian, French, Hungarian and Austrian parliaments and others have all recognized Daesh’s atrocities as genocide. However, UNITAD is a United Nations body specially created to collect, analyze and store evidence for future prosecution. The amount of evidence gathered and examined by UNITAD was previously not accessible to anyone. Although not a judicial body, UNITAD’s determination of atrocities as genocide must be given the importance it deserves.
What does it mean to the UN Security Council that UNITAD has recognized the atrocities as genocide? This means that the UN Security Council must act to prevent further atrocities and punish the perpetrators.
As UNITAD collects and stores evidence of atrocities committed in Daesh, it is essential to ensure that there is a tribunal that will be able to discuss the evidence and ensure prosecution. UNITAD resembles the expert commissions created by the United Nations Security Council to examine the atrocities in Bosnia and Rwanda. In both cases, after expert commissions characterized the atrocities as genocide, the UN Security Council proceeded to create ad hoc tribunals to prosecute the perpetrators, namely the International Criminal Tribunal for ex-Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda. (ICTR).
Despite the creation of UNITAD, the United Nations Security Council has yet to make any proposals to follow up on a resolution establishing an ad hoc tribunal. It would be a logical (and crucial) next step for the UN Security Council to establish an ad hoc tribunal to prosecute Daesh fighters for their crimes in Iraq. Indeed, during the meeting of the UN Security Council on May 10, 2021, Nadia Murad, Nobel Peace Prize laureate and lawyer for the Yazidis, stress that “public trials and recognition of the genocide will help prevent further violence and facilitate the healing of survivors. (…) international tribunals are needed to cope with the universal scale [Daesh]the crimes of. Nadia Murad and Amal Clooney of Doughty Street Chambers called on the United Nations Security Council to refer the situation in Iraq to the International Criminal Court or create an ad hoc tribunal. Likewise, Pieter Omtzigt, a Dutch parliamentarian, worked with experts on a proposal to create such an ad hoc tribunal. Later, several states came together to consider such an option. However, neither has resulted in concrete proposals and implementation steps.
If the international community cannot unite to prosecute Daesh, a non-state actor, there is little hope that it will ever be able to remedy the atrocities perpetrated by state actors. This inaction in the face of genocide must be addressed urgently.