The Coalition for Genocide Response Webinar heard calls from Baroness (Helena) Kennedy QC and Lord (David) Alton for an ad hoc international criminal Tribunal to be established in Iraq to bring those responsible for genocide against Yazidis and other minorities to justice.
Remarks by Lord Alton:
In thanking Dr.Ochab and the Coalition for Genocide Response for instigating this webinar today I would like to use my speaking opportunity to revive the idea of establishing an ad-hoc tribunal for Daesh in Iraq. Over the past five years I have repeatedly called for the perpetrators of atrocity crimes and genocide against Yazidis, Christians and other minorities in Northern Iraq to be arraigned before the courts. This is not just about demonstrating our determination to seek justice for the victims – many of who were women – but also to demonstrate to other new offenders that they may believe they can get away with blue murder but one day they too will be held to account.
There are very few weapons which liberal democracies have in their arsenal and which can be used without inflicting more heartbreak on the beleaguered and suffering communities – but the rule of law is one such weapon and marks out our nations from those regimes led by dictators and autocrats.
In 2019, taking evidence in that region left me in no doubt about the scale of the horrors which have occurred with Assyrians, Syriacs, Chaldeans and Yazidis suffering grievously –subjected to repeated cycles of appalling violence including genocide.
Pre-dating Islam, these ancient peoples have been decimated in systematic campaigns to eradicate and eliminate them, their culture, and their way of life. Their crime is simply to live differently from the majority.
But gathering evidence from survivors did not reveal a determined international effort to bring perpetrators to justice.
Two men whose families fled from Mosul and another whose home was burnt down in Sinjar told me that no one from the international community, or the Governments in Baghdad or Irbil, had ever asked to meet them or to take their statements. Yet the claim is repeatedly made that “we are collecting evidence “ and that perpetrators will “be brought to justice”.
I also collected evidence from Yazidi survivors and met their spiritual leader, the late Baba Sheikh.
On August 3, 2014, Daesh launched a violent attack against Yazidis in Sinjar.
Daesh fighters killed hundreds, if not thousands of men. The victims’ mass graves continue to be discovered to this day – and recently we say photographs of disinterred remains being give the dignity of reburial. On becoming British Foreign Secretary, Boris Johnson said that Daesh “are engaged in what can only be called genocide of the poor Yazidis” – and yet, to this day his Government have still not recognised it as a genocide.
As part of the same campaign, Daesh fighters abducted boys to turn them into child soldiers and women and girls for sex slavery.
More than 3,000 women and girls are still missing, and their fate is unknown.
Some investigations and prosecutions of the Daesh perpetrators have been conducted in some domestic courts. However, two main problems have emerged. First, those prosecutions conducted to date have been for lower offences, specifically for terrorism-related offences (and not for other offences, such as ‘murder, kidnapping, (…), sale into or otherwise forced marriage, trafficking in persons, rape, sexual slavery and other forms of sexual violence, recruitment and use of children’, forced transfer of population, destruction of cultural heritage and much more, or for international crimes such as genocide, crimes against humanity or war crimes). Second, the procedure surrounding such trials, especially in Syria and Iraq, has been problematic.
The first step towards justice was made when, in September 2017, when the UN SC passed a resolution 2379 establishing an Investigative Team (UNITAD), headed by a Special Adviser, to support domestic efforts to hold ISIL (Da’esh) accountable by collecting, preserving, and storing evidence in Iraq of acts that may amount to war crimes, crimes against humanity and genocide committed by the terrorist group Daesh in Iraq, to the highest possible standards.
In May 2021, Karim Khan QC, the then Special Adviser and Head of UNITAD, briefed the UNSC on recent developments, including UNITAD’s finalised two case briefs related to attacks committed by Daesh against the Yazidi community in Sinjar in August 2014 and the mass killing of unarmed Iraqi air force cadets from Tikrit Air Academy (Camp Speicher) in June 2014.
Among others, UNITAD identified 1,444 suspected perpetrators responsible for the attacks against the Yazidis, including 14 members deemed most responsible for the atrocities classified as war crimes, crimes against humanity and even genocide. UNITAD further identified 20 members of Daesh most responsible for the attack on Camp Speicher.
UNITAD has been doing important work to ensure justice for the survivors and families of victims.
However, UN SC resolution 2379 identifies Iraqi domestic courts as the primary venue to deal with prosecutions. This is problematic for several reasons.
Among other problems, Iraqi domestic law does not criminalise such international crimes as genocide. An attempt to introduce this crime into domestic law is underway. However, the very introduction of the relevant laws does not mean that the Iraqi courts will be able to prosecute the perpetrators for the crime. Indeed, there are several concerns in relation to the capacity of the Iraqi judiciary system in dealing with these cases that go far beyond the need to introduce laws on genocide.
These will need to be addressed and the international community needs to extend a helping hand to assist the Iraqi judiciary.
However, as I have argued since 2016, we also need to explore other options, including the option of establishing an international criminal tribunal for Daesh in Iraq.
There is an important benefit of pursuing this option that cannot be achieved with domestic proceedings – and this is to put the perpetrators on trial before the whole world, prosecute the perpetrators in accordance with the rule of law and due process, and send a message to others that one cannot get away with genocide. Domestic proceedings in Iraq, as they are currently undertaken, cannot achieve this aim.
Also, Daesh fighters came from all over the world, and so, all States have a duty to work together and address the issue of impunity and ensure justice.
As such, I propose that the UK should table a UN SC resolution to establish an ad-hoc tribunal, the International Criminal Tribunal for Daesh in Iraq that would follow the establishment of UNITAD (UN SC 2379) and so would mirror the approach taken by the UN SC to the situation in Rwanda and Bosnia.
The jurisdiction of the proposed ad-hoc tribunal would be tailored to ensure support from the UN SC. Its territorial jurisdiction would be limited to Iraq only. The personal jurisdiction is limited to Daesh fighters only (and does not include, for example, any Iraqi soldiers who may have committed war crimes in the combat against Daesh).
Again, the first step to collect and preserve the evidence of the atrocities by Daesh has been done. Justice is only one step away – and this step is an ad-hoc tribunal.