ISIS prosecutions: putting Iraqi and Syrian victims’ rights first

Impunity Watch, PAX for Peace and the Syrian Center for Media and Freedom of Expression co-organised a side-event on “ISIS prosecutions: putting Iraqi and Syrian victims’ rights first” at the 18th session of Assembly of States Parties to the International Criminal Court (ICC) on 3 December 2019 in The Hague.

Though ISIS has been militarily defeated, the question of how to hold perpetrators accountable and deliver justice for victims in Iraq and Syria remains unresolved. Debates over how and where to hold ISIS criminals accountable tend to be led by states that prioritise their own interests, overshadowing the priorities and needs of victims, whose rights to justice, truth, redress and guarantees of non-recurrence are not being held. This side-event aimed to broaden the debate around prosecution for ISIS criminals to encompass the whole range of victims’ rights, and to provide a platform for members of directly affected communities to express their voices on post-ISIS justice in Iraq and Syria.

The panel discussion, mediated by Impunity Watch’s

Middle East and North Africa (MENA) Programme

Officer Frances Topham Smallwood, addressed several

aspects with a special focus on the victims’ perspectives

on justice for crimes committed by ISIS. Panellists touched

on the possible role for an international or hybrid tribunal

to hold ISIS perpetrators accountable if routes to an ICC

referral are blocked. Panellists addressed the question of

what role Member States can play in prosecuting ISIS

perpetrators, including their nationals, before their own

courts. The discussion also revolved around how the

international community can support national fair trials

in Iraq without concurrently supporting the death penalty.

“I am talking today on behalf of all the victims and not only the Yazidis. If perpetrators are not held accountable through fair trials, you or your children might be the victims in the future,” said Basma AlDakhi. Basma comes from the Yazidi community which was singled out for unspeakable atrocities by ISIS. She now works as a peace mediator in northern Iraq. “We are calling for the prosecution of the perpetrators to avoid the repetition of these crimes,” AlDakhi added.

Syrian advocate on behalf of ISIS victims Khalil Alhaj Saleh called for the establishment of an international tribunal as part of a comprehensive transitional justice process. Khalil is from the Syrian city of Raqqa, the former capital of ISIS. Saleh explained that such a tribunal should hold accountable “all perpetrators without any exceptions, and the Syrian regime is at the top of that list.” Alhaj Saleh’s brother was kidnapped by ISIS in 2013, and his fate and whereabouts remain unknown.

Mazen Darwish, Executive Director of the Syrian Centre for Media and Freedom of Expression, was also among the panellists. “We are concerned that justice is being transformed into a politicised and counter-terrorism issue only, especially in Europe,” he said. Darwish is a Syrian lawyer and activist as well as a former political detainee in the Syrian regime’s prisons. He is known for his work bringing Syrian war criminals to account in European courts. Darwish emphasised that

selective justice and holding accountable some

perpetrators while leaving others to enjoy impunity sets

a dangerous precedent. “Eventually, we will all pay the

price,” he warned.  

Later during the day, the panellists held a similar

discussion at Humanity House in The Hague.

They interacted with an audience of university students,

activists, and researchers, among others.

Download our latest Policy Brief: ISIS-only tribunal:

selective, politicised justice will do more harm than good 

 

 

Background

In mid-2014, ISIS overran swathes of territory across western Iraq and eastern Syria, establishing a ‘caliphate’ that committed gross human rights violations against the populations under its control likely amounting to war crimes, crimes against humanity and genocide. ISIS has now been militarily defeated by various armed groups, Iraqi and Syrian state forces, and international air power, finally losing the last of its territory in Iraq and Syria in late 2017 and early 2019 respectively. However, the group continues to launch sporadic attacks and has left physical destruction, social divisions and mass displacement in its wake, as well as tens of thousands of direct and indirect victims searching for answers and justice.

 

ISIS’ ranks were mainly Iraqis and Syrians, but the group’s global brand appeal attracted thousands of foreign fighters from all over the world, making accountability a matter for the international community as well as Iraq and Syria. Various efforts have been made toward holding ISIS accountable, but are problematic or have shortcomings. In both countries, but especially in Syria, ISIS was by no means the only party to commit international crimes. Though ISIS systematically committed crimes on a scale that deserves special recognition, holding just one set of perpetrators accountable while others enjoy impunity undermines the basic principle that justice is impartial and would likely have conflict worsening results in the medium to long term.

 

Domestically, Iraq has sentenced thousands of alleged ISIS members to death or lengthy prison sentences in trials that frequently fail to meet basic standards of fairness. Cases are mainly brought under anti-terror legislation, meaning defendants are convicted on the basis of ISIS membership rather than actual deeds, and victims have little opportunity to participate in or be properly informed of proceedings. In the Kurdistan Region of Iraq (KRI), a body has been established to gather evidence of ISIS’ crimes and support victims. In Syria, the Kurdish-dominated, US-backed Syrian Democratic Forces (SDF) have held trials for Syrian ISIS members, but lack the resources to do so effectively and the prosecutions have questionable legal standing. ISIS members have also been prosecuted for their crimes in several national trials in Europe, notably in Germany and the Netherlands, though there is widespread resistance to repatriating foreign fighters held in Syria and Iraq to face justice at home.

 

On the international level, in September 2017, the UN Security Council passed Resolution 2379 ordering the establishment of an investigative team (known as UNITAD) to collect evidence and assist Iraqi and potentially other courts in prosecuting ISIS criminals. It does not have a mandate to examine crimes by other parties, but has been collecting evidence on ISIS crimes including the persecution of Yazidis, the Speicher killings, and the crimes that accompanied the occupation of Mosul. In addition, international meetings took place twice in 2019 to explore an initiative proposed by Sweden and endorsed by the Netherlands to establish an international tribunal to hold ISIS accountable. But the proposal faces significant legal and political obstacles, and runs the risk of encouraging impunity for some perpetrators of international crimes and worsening rather than alleviating conflict in the longer term through its selective approach.