The UN Security Council votes on the resolution 2379. (Photo credit: DON EMMERT/AFP/Getty Images)
ishtartv.com
- forbes.com
Ewelina
U. Ochab, Oct 13, 2017
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
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.’
The
Empirical Reality
Reports
suggest that the national courts may not be capable of prosecuting Daesh
fighters for genocide, crimes against humanity and war crimes.
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