B Explanatory memorandum
by Mr Pieter Omtzigt, rapporteur
1 Introduction
1. The motion underlying this
report was tabled on 11 October 2016. It recalled the crimes committed
by Daesh, considered that they could be classified as at least war
crimes and crimes against humanity, whilst remaining equivocal on
whether or not they amounted to genocide, and mentioned the difficulties
in bringing the matter before the International Criminal Court (ICC).
It was referred to the Committee on Legal Affairs and Human Rights
for report on 25 November 2016.
2. Prior to this, I had tabled a motion that unequivocally supported
the Assembly’s previous assessment that the conduct in question
could be considered genocide.
Note I
intend to maintain that approach. The distinction is important:
recognition of the crime of genocide entails positive obligations
under international law, notably by requiring States Parties to
the 1948 United Nations Convention on the Prevention and Punishment
of the Crime of Genocide (“1948 Genocide Convention”) to take action.
The international community thus has a moral and legal duty to the
victims of Daesh’s atrocities to be clear and honest in its assessment
of the situation and to be resolute in bringing the offenders to
justice for the full extent of their crimes. This Assembly must
not regress to a weaker position.
3. Beyond this difference, the two motions share a common goal:
to find ways to overcome the obstacles to bringing members of Daesh
to justice and to encourage the international community to take
urgent and effective action on the matter. This remains the primary
goal of my report.
4. In the course of the preparation of the report, the committee
held a hearing with the participation of Ms Nadia Murad, a Yazidi
survivor of Daesh and winner of the Assembly’s 2016 Václav Havel
Human Rights Prize; Mr Geoffrey Robertson QC, former President of
the United Nations Special Court for Sierra Leone; and Ms Ewelina
Ochab, legal researcher and PhD scholar at the University of Kent
(United Kingdom). A questionnaire was also issued: I would like
to thank the parliaments of the 22 member and observer States which
replied.
Note
2 Origins and evolution of DaeshNote
5. The origins of Daesh lie in
the Al-Qaeda in Iraq (AQI) group established by Abu Musab Al-Zarqawi
in 2004, itself based on an earlier Iraqi jihadist group. In 2006,
after Al-Zarqawi was killed in a United States air strike, AQI merged
with other Iraqi jihadist groups and renamed itself Islamic State
of Iraq (ISI). In 2011, ISI, now led by Abu Bakr al-Baghdadi, joined
with the Al-Qaeda affiliate Jabhat Al-Nusra group fighting in Syria.
In 2013, this alliance split, with a new group, Islamic State in
Iraq and Syria (ISIS, otherwise known as Daesh), emerging the larger.
Daesh initially prioritised the forcible creation of a “State” over
fighting the Syrian Government, which led to clashes with other
armed groups and Daesh’s withdrawal to its strongholds in north-eastern
Syria, where it consolidated its military and financial capacity.
Significant territorial gains in Iraq in July 2014 greatly added
to Daesh’s resources and allowed its further expansion into eastern
Syria, where the complex on-going conflict and power vacuum provided
opportunities.
6. The rapid rise of Daesh meant that, initially, the threat
that it posed was badly underestimated by the international community.
Its sudden, spectacular military successes attracted foreign financial
and material support, including foreign fighters. Arms and material
intended for moderate groups often found their way to extremists,
including Daesh, further enhancing its capacities. This allowed
Daesh to extend its territorial control, including seizure of economic
resources: in June 2014, when overrunning Mosul, it stole perhaps
as much as US$400 million from the Central Bank of Iraq;
Note and at its peak, it controlled more than
80% of Syria’s oil infrastructure, from which it earned around US$500
million in 2015, contributing to total revenues of around US$1 billion.
Note These
economic resources allowed it to pay fighters generously, further
attracting recruits. Since then, Daesh’s situation has deteriorated
significantly: by early July 2017, Iraqi forces had retaken all
but a small area of central Mosul,
Note and
its Syrian stronghold, Raqqa, was surrounded and under attack by
US-backed Arab and Kurdish forces.
Note As its territorial
losses have mounted, so have its revenues fallen: by one estimate,
from US$81 million per month in the second quarter of 2015 to US$16
million in the second quarter of 2017.
Note
7. Daesh has a hierarchical structure with a central command.
At its head, Al-Baghdadi holds absolute power, exercised through
various bodies including a military council and a network of regional
and local emirs and military commanders, enforcing strict discipline
and full territorial control. Daesh’s leadership structure is dominated
by foreign fighters.
Note In
the areas it controls, it operates a primitive administrative system
with morality and general police, courts, and bodies to manage recruitment,
tribal relations and education, as well as some basic services made
possible by its financial resources. On 29 June 2014, Daesh declared
a “Caliphate” initially based on the areas it controlled in northern
Iraq and eastern Syria, but with far wider geographical pretensions.
This further motivated recruits to join the group.
8. Tens of thousands of non-Syrian and non-Iraqi “foreign fighters”
have travelled to the region to join Daesh, although their number,
and the flow of new recruits, has declined since the high-point
of Daesh’s military successes in 2015: from around 31 500 in mid-2014
to around 25 000 in early 2016;
Note by August 2016, it was reported
that Daesh had only 15 000 to 20 000 fighters left in total.
Note The
foreign fighters come from at least 86 countries: of Council of
Europe member States, the largest numbers of foreign fighters came
from France, Germany, Russia, Turkey and the United Kingdom; per
head of population, significant numbers came also from Austria,
Belgium, Bosnia and Herzegovina, Denmark, Sweden and “the former
Yugoslav Republic of Macedonia”. 3 700 come from just four European
countries: the United Kingdom, Germany, Belgium and France.
Note It
is said that 20-30% of foreign fighters from Western countries return
home;
Note this proportion may increase as
Daesh continues to lose territory and its capacities are further
degraded. Some of the past returnees have been involved in the planning
and execution of large-scale terroristic attacks: a number of terrorists
involved in the November 2015 Paris attacks (130 civilian deaths) and
the March 2016 Brussels attacks (32 deaths) had returned from fighting
for Daesh in Syria, and the perpetrator of the 2017 Manchester suicide
bombing (22 deaths) had engaged with Daesh in Libya and Syria.
Note
3 Crimes
committed by Daesh
9. As early as 2014, the specially
constituted United Nations Independent International Commission
of Inquiry on the Syrian Arab Republic (IICISAR) concluded that
Daesh, as an armed group within the meaning of common Article 3
of the Geneva Conventions and customary international law, had committed
a catalogue of war crimes and crimes against humanity. In its report,
the IICISAR describes Daesh as a “cohesive and co-ordinated group”
functioning under “responsible command” with a “hierarchical structure”,
able to “impose a policy on its members and ensure the co-ordinated
implementation of decisions made by its leadership”. “The commanders
of [Daesh] have acted wilfully, perpetrating these war crimes and
crimes against humanity with clear intent of attacking persons with
awareness of their civilian or hors de combat status. They are individually criminally
responsible for these crimes.”
Note I see no reason to question this assessment,
nor have I heard it being questioned by any serious commentator
on the situation in Syria and Iraq.
10. International mechanisms have, quite properly, been cautious
in determining whether Daesh has committed the specific crime of
genocide. In August 2014, the Special Adviser of the United Nations
Secretary-General on the Prevention of Genocide and the Special
Adviser on the Responsibility to Protect were particularly circumspect,
noting that “the reports we have received of acts committed by the
‘Islamic State’ may also point to the risk of genocide”.
Note In March 2015, the United Nations High
Commissioner for Human Rights stated in slightly more definite terms
that “it is reasonable to conclude, in the light of the information
gathered overall, that some of those incidents [of attacks by Daesh
against religious and ethnic groups] may constitute genocide”. In
particular, “information pointed to the intent of ISIL to destroy
the Yazidi as a group when perpetrating those acts and to the existence
of a manifest pattern of attacks against that community, whose identity
is based on its religious beliefs. If confirmed, such conduct may
amount to genocide”.
Note
11. The IICISAR’s assessment has likewise evolved over time, as
evidence mounted of the nature and extent of Daesh’s atrocities.
In August 2015, it noted Daesh’s religious motivation when targeting
the Yazidi community, which it regards as pagan and infidel, with
particularly egregious violations committed against women and girls.
It also reported on patterns of religiously discriminatory attacks
against Christian communities. Nevertheless, despite reiterating
its conclusion that Daesh had committed war crimes and crimes against
humanity, the IICISAR did not at this stage qualify its actions
as genocide.
Note
12. The June 2016 report of the IICISAR sought specifically to
determine whether Daesh had committed the crime of genocide against
the Yazidi community in Iraq.
Note Taking into account the accumulated
evidence available at that time, the IICISAR was now able to make
an unequivocal finding: “ISIS has committed, and continues to commit,
the crime of genocide, as well as multiple crimes against humanity
and war crimes, against the Yazidis. … ISIS seeks to destroy the
Yazidis in multiple ways, as envisaged by the drafters of the 1948
Genocide Convention.”
Note The IICISAR did not consider
the atrocities committed against other religious minorities.
13. There is, however, some disagreement on the genocide issue.
The disagreements fall under two heads. First, whether any determination
of the issue must be left to an (international) judicial body. And
second, whether the definition of genocide under international law
is satisfied by the established facts concerning Daesh’s acts in
Syria and Iraq. A further controversy, falling under the second
head, concerns the question of which ethnic and religious groups
have been victims of genocidal acts committed by Daesh. I will address
each of these issues in turn.
3.1 Whether
determination of the genocide question must be left to a judicial
body
14. This objection has been expressed
by some governments, including in countries whose parliaments have
recognised the genocide and called on their governments to act.
I sincerely hope that it does not reflect a reluctance to accept
the legal consequences of a State’s recognition of commission of
genocide. This would be a betrayal of the essential principles underlying
the 1948 Genocide Convention and an obstruction to achievement of
its purpose. I would also disagree with those who may say that qualification
of the actions of Daesh as genocide could be prejudicial to subsequent
criminal proceedings. Political recognition by governments of Daesh’s
genocide does not prejudice criminal proceedings against individual
suspects brought by independent prosecutors in independent courts,
as individual guilt would still have to be established in each case.
15. There is a spiralling perversity to this objection. Without
acceptance by governments that the case for Daesh’s genocide is
established to what one might call a
political standard
of proof, and a resulting acceptance that this entails legal obligations
under the 1948 Genocide Convention to prevent and punish it, there
is far less chance that the courts will ever be given the opportunity
to determine the matter to the criminal standard of proof; and so
governments will continue to reserve their position, and the courts
will remain unable to act, and so on. In the meantime, the genocide
will have continued and annihilation of the targeted population
been accomplished. As the British politician Lord Alton said following
the United Kingdom parliamentary debate, “Having no formal mechanism
to refer evidence of genocide to the high court simply leads to
government buck-passing and hand-wringing. They repeatedly say that
determining whether a genocide is under way is a matter for the
courts but then refuse to provide a trigger for a referral. Parliament
… needs to force the government’s hand. Otherwise we might as well
rip up the genocide convention as a worthless piece of paper”.
Note It
is essential for governments, after careful, informed deliberation,
to take this decision in order for the 1948 Genocide Convention
to be effective. The Dutch Advisory Committee on Issues of Public
International Law and the External Advisor on Public International
Law have noted that “[t]he government is the most important representative
of the state in international relations. So it is primarily the
task of the government to ascertain whether genocide or crimes against
humanity have been or are being committed in another state”.
Note
3.2 Whether
the definition of genocide under international law is satisfied
16. The atrocities perpetrated
by Daesh fulfil the definition of genocide in Article II of the
1948 Genocide Convention. The
mens rea (criminal
state of mind) of genocide is an “intent to destroy, in whole or
in part, a national, ethnic, racial or religious group, as such”;
the
actus rei (criminal acts)
include killing, causing serious bodily or mental harm, deliberately
inflicting conditions of life calculated to bring about the group’s
physical destruction in whole or in part, imposing measures intended
to prevent births and forcibly transferring children of the group
to another group. Daesh’s atrocities, which include killings, torture,
rape and other sexual violence (which may be considered as forms
of serious bodily or mental harm
Note), enslavement, forced displacement, removing
children from their families and many other crimes, correspond to
many of the acts listed in Article II. These atrocities are being
committed predominantly against religious groups, for example Christians,
Yazidis, and other minorities, and are committed with specific intent
to destroy the groups in whole or in part. Daesh targets religious
minorities in Syria and Iraq as it wants to establish a purely Islamic
State and so abolish religious pluralism in the region. It is true
that Daesh also commits crimes against the population at large;
there is, however, no evidence that this is done with the specific
intent necessary to classify these other crimes as genocide.
17. It is noteworthy how many of the genocide risk factors set
out in the “Analysis Framework” of the United Nations Special Adviser
on the Prevention of Genocide apply to the circumstances surrounding
Daesh’s actions – for example: the presence of illegal arms and
armed elements; the motivation of Daesh’s leading actors; its motivation
to target a group and separate it from the rest of the population;
its use of exclusionary ideology and construction of identities
in terms of “us” and “them”; its depiction of a targeted group as
unworthy or inferior so as to justify action against it; a permissive
environment created by ongoing armed conflict that could facilitate
access to weapons and commission of genocide; evidence of Daesh’s
intent to destroy in whole or in part a particular group; the nature
of the atrocities committed, including the systematic rape of women which
may be intended to transmit a new ethnic identity to the child or
to cause humiliation and terror in order to fragment the group;
and the targeted elimination of community leaders and/or men and/or
women of a particular age group (the “future generation” or a military-age
group). Such circumstances enhance the confidence with which Daesh’s
conduct may be qualified as genocide.
3.3 Which
ethnic and religious groups have been victims of Daesh genocide
18. As noted above, the IICISAR’s
detailed 2016 report concluded decisively that Daesh has committed genocide
against the Yazidis. Other authoritative international actors have
come to the same conclusion, including the UN High Commissioner
for Human Rights
Note and the UN Special Rapporteur on minority
issues,
Note as
well as specialised non-governmental organisations (NGOs) such as
Genocide Watch
Note and the
United States Holocaust Memorial Museum.
Note The IICISAR report describes in detail
the treatment of the Yazidis by Daesh, beginning with the armed
attack on their homeland and the siege of Mount Sinjar, which inflicted
upon them conditions of life calculated to bring about destruction
of the group in whole or in part. The Yazidis were then separated
according to age and gender, a measure intended to prevent births
within the group, since Yazidi religious tradition requires both
parents to be Yazidi for a child to be so. Women and pubescent girls were
separated from their male relatives, and married women separated
from unmarried women, meaning that pubescent girls were separated
from their mothers. There was at least one mass killing of older
women (over 60). Groups of women and girls were then forcibly transferred
to mass holding sites, in severely crowded conditions with little
to eat or drink and poor sanitary conditions; many, especially younger
girls, became seriously ill, but received no medical treatment.
Daesh fighters came to these sites to select, purchase and remove
Yazidi women, whom they refer to as
sabaya (slaves)
and consider as chattels; these slave markets developed to include
online auctions, and Yazidi women were often bought and sold repeatedly.
Enslaved women were systematically subjected to rape, other forms
of sexual violence and severe beatings. Survivors who escaped or
were sold back to their families suffer severe psychological consequences
of the extreme mental and physical trauma. Large numbers of men
and pubescent boys were immediately killed, or forcibly converted
to Islam, held captive and made to perform forced labour. Pre-pubescent
boys were removed from their mothers at age seven (forcibly transferred
to another group), then forcibly converted and forced to attend indoctrination
and military training sessions, including as suicide bombers, causing
them serious mental harm; the aim of the forcible conversion and
indoctrination was to destroy their religious identity. The youngest children,
although left with their mothers, were subjected to persistent brutality
including beatings and insults amounting to serious bodily and mental
harm.
19. Daesh propaganda, even prior to the attack on Sinjar, gave
careful consideration to how the Yazidis – whom Daesh consider to
be “devil-worshippers” – should be treated under Daesh’s interpretation
of Islamic law. Daesh’s subsequent treatment of captured Yazidi,
wherever it took place, was clearly consistent with this doctrine.
Other non-Sunni ethnic and religious groups that fell victim to
Daesh were not consistently subjected to the same treatment; this
corresponds to the fact that Daesh doctrine and conduct distinguished
Yazidis, as “pagans” (
mushrik),
from Jews and Christians, as “People of the Book” (
Ahl Al-Kitab). The atrocities committed against
the Yazidis were accompanied by systematic destruction of Yazidi
shrines and temples, a phenomenon which both the International Criminal
Tribunal for the former Yugoslavia and the International Court of
Justice consider may serve evidentially to confirm an intent to
destroy the group, as such.
Note
20. I fully subscribe to the findings of the IICISAR, which are
extensively supported by numerous other sources and authoritative
commentators. There can be no doubt that Daesh has committed and
continues to commit genocide against the Yazidis.
21. It is also widely asserted, including in many parliamentary
declarations, that Daesh has committed genocide against Christian
minorities. The IICISAR has not yet reported on Daesh atrocities
committed against other religious minorities. Other IICISAR reports
do, however, provide some information. These note that although
Daesh claims to consider Christians to be “People of the Book”,
they still suffered forced displacement and deprivation of property;
some 200 000 fled their homes in the Ninewa plains when confronted
by the Daesh onslaught, following which Daesh destroyed historic
Christian churches and cathedrals.
Note IICISAR reports also mention that in September
and October 2013, Daesh attacked and destroyed churches of various
Christian denominations in Ar-Raqqah governate;
Note and in February 2015, Daesh attacked Christian
villages, targeting villagers on the basis of their religion.
Note Another source reports that in June
2014, Daesh attacked Aramean, Assyrian and Chaldean Christians in
the province of Mosul, targeting them on the basis of their religion; confiscated
all churches, homes and other property of Christians after marking
it with the Arabic letter “N” (for “Nasrani”, i.e. Christian); and
sold Christian and Yazidi women as slaves, even publishing a list
of prices for them.
Note Another report
sets out a strongly argued and evidentially detailed case for Daesh’s
violations against Christians to amount to genocide, based on specific
statements, policies and patterns of conduct that correspond to
the requirements of the legal definition set out in the 1948 Genocide
Convention.
Note This report describes
separation of Christian children from their mothers, sexual slavery
of Christian women, the “commonplace” murder of Christians (estimated
at thousands across Syria) and hostage-taking. It refers to Daesh
statements of intent to, for example, “conquer your Rome, break
your crosses and enslave your women [and] sell your sons as slaves
at the slave market”, and to “burn the slaves of the Cross”. According
to the authors, “[t]he plain meaning of these statements, especially
in context, is clear: The so-called Caliphate has slated Christians
for destruction – now and in an apocalyptic battle to come”.
22. It is claimed by some that Daesh tolerates Christians in the
same way that they were tolerated under the “Pact of Umar” that
regulated their status in Muslim caliphates between the 9th and
19th centuries. This assertion has been strongly refuted, essentially
on the grounds that whilst Christians are required to pay a so-called
jizya tax, it does not correspond
in practice to the earlier, historical model: it is set at an extortionately high
rate, those who pay it are nevertheless subject to killing, ill-treatment,
deprivation of liberty and deployment as human shields, and they
are unable to practice their religion, in part due to destruction
of churches and kidnapping of priests.
Note Christians are
faced with an appalling choice: pay the
jizya,
convert to Islam, leave or be killed. The brutal reality is that
Daesh considers Christians as infidels, liable to be killed; its
jizya has been described as “a ploy
from which ISIS could keep the Christians there to take advantage
of them and abuse them” and a “Caliphate publicity stunt”.
Note One widely reported estimate suggests
that around one third of Iraq’s 2014 population of 200 000 to 250 000
Christians have fled the country, with many of those remaining internally
displaced, and perhaps as many as half of Syria’s 2011 population
of around 2 million Christians have left, again with high levels
of internal displacement.
Note It should be
recalled that Daesh also has a presence in Egypt, where it has been
systematically attacking churches and driving Coptic Christian communities
from their homes.
Note
23. The nature and scope of the atrocities committed against Christians
by Daesh, the consequences of those atrocities on the Christian
communities of especially Iraq and Syria as groups and Daesh’s numerous declarations
of doctrinally motivated intent are all extremely well documented
and strongly suggestive of deliberate genocide.
24. The IICISAR has also provided specific information in its
general reports on Daesh crimes committed against non-Sunni Muslims,
including Shi’a, whom Daesh considers to be apostates or heretics;
many commentators and some of the parliamentary declarations consider
also these acts to amount to genocide. Virtually all of the tens
of thousands of Turkmen and Shabaks living in villages around Mosul
fled in the face of Daesh’s 2014 capture of the city. Many, including
children, were nevertheless captured, ordered to “repent” of their
“heretical” views, tortured and killed, and their mosques and properties
were pillaged.
Note During these attacks, Daesh tortured
and killed more than a thousand Shi’a whom they had deliberately
separated from Iraqi soldiers they had captured. In August 2015,
a Daesh bomb killed at least 76 people in a majority Shi’a district of
Baghdad.
Note In July 2016, Daesh again attacked
a Shi’a district of Baghdad, killing more than 300.
Note Later the
same month, Daesh attacked the Mausoleum of Sayed Mohamed bin Ali
al-Hadi, a Shi’ite holy place in central Iraq, killing at least
40 people.
Note In
April 2017, a Daesh suicide bomber attacked buses carrying mainly Shi’a
villagers during an agreed exchange from rebel-held areas, killing
126 people, of whom 80 were children.
Note
25. The nature and scope of the atrocities committed against non-Sunni
Muslims by Daesh, the consequences of those atrocities on these
communities, especially in Iraq and Syria, as groups and Daesh’s numerous
declarations of doctrinally motivated intent are all well documented
and strongly suggestive of deliberate genocide.
4 The
position of national and international actors on the genocide issue
26. As the evidence has mounted
and the position of independent monitoring mechanisms has evolved,
a growing number of important national and international actors
have also concluded that Daesh has committed genocide. The Parliamentary
Assembly was one of the first, in January 2016, when it found that
Daesh had “perpetrated acts of genocide and other serious crimes
punishable under international law” and called on States to “fulfil
their positive obligations under the [1948 Genocide Convention]
by taking all necessary measures to prevent genocide”.
Note The
European Parliament adopted a similar resolution the following month, stating
that Daesh was committing genocide against Christians, Yazidis and
other religious minorities, and urging the United Nations Security
Council to refer the matter to the ICC.
Note
27. Similar positions have been adopted in several Council of
Europe member States. As early as 15 December 2015, the Seimas of
the Republic of Lithuania stated that “atrocities against Christians
and representatives of other religious minorities which are targeted
in the Middle East, particularly in Iraq and Syria, and North Africa
solely on religious grounds can be considered as genocide”. The
United Kingdom House of Commons, on 20 April 2016, by a unanimous
vote of 278 members, stated its belief that “Christians, Yazidis, and
other ethnic and religious minorities in Iraq and Syria are suffering
genocide at the hands of Daesh” and called on the United Kingdom
Government “to make an immediate referral to the UN Security Council
with a view to conferring jurisdiction upon the ICC so that perpetrators
can be brought to justice”. On 8 December 2016, the French National
Assembly considered that the violence and crimes committed by Daesh
against Christian, Yazidi and other minority populations met the
criteria of the definition of genocide, called on the French Government
to recognise this genocide officially and invited the government
to seize the UN Security Council of the matter, in order that it
give the ICC competence to prosecute these crimes. Also in 2016,
the Hungarian Parliament declared that Daesh’s atrocities “shall
be considered to be acts of genocide, crimes against humanity and
war crimes”. On 7 June 2017, the Austrian National Council endorsed
the European Parliament resolution, whilst also calling for a formal
declaration by the UN Security Council that ISIS atrocities against
Christians and other religious and ethnic minorities are acts of
genocide, and for prosecution of these crimes before the ICC.
28. Countries outside Europe have likewise taken position. On
14 March 2016, the United States House of Representatives, by a
unanimous vote of 393 members, passed a resolution recognising the
atrocities committed against Christians, Yazidis, and other ethnic
and religious minorities in Iraq and Syria as genocide. On 15 March
2016, the United States Senate declared that the atrocities perpetrated
by Daesh against Christians, Yazidis, and other religious and ethnic
minorities in Iraq and Syria constitute war crimes, crimes against
humanity, and genocide. On 17 March 2016, the US Secretary of State,
in a carefully considered, closely argued speech, stated that “Daesh
is responsible for genocide against groups in areas under its control, including
Yazidis, Christians, and Shia Muslims. Daesh is genocidal by self-proclamation,
by ideology, and by actions – in what it says, what it believes,
and what it does… Daesh kills Christians because they are Christians;
Yazidis because they are Yazidis; Shia because they are Shia”. The
Secretary of State went on to note that he was “neither judge, nor
prosecutor, nor jury with respect to the allegations of genocide,
crimes against humanity, and ethnic cleansing by specific persons.
Ultimately, the full facts must be brought to light by an independent
investigation and through formal legal determination made by a competent
court or tribunal. But the United States will strongly support efforts
to collect, document, preserve, and analyze the evidence of atrocities,
and we will do all we can to see that the perpetrators are held
accountable”.
Note The
current United States administration has maintained that position,
Secretary of State Tillerson stating that “ISIS is clearly responsible
for genocide against Yezidis, Christians, and Shia Muslims in areas
it controlled”.
Note The Canadian Government confirmed its
recognition of Daesh genocide of the Yazidis on 16 June 2016, and
on October 2016, the Canadian House of Commons unanimously passed
a motion to the same effect. On 2 May 2016, the Australian House
of Representatives recognised Daesh’s “ongoing genocidal conduct
… against indigenous minorities in Iraq, including the Assyrian
[Christian] people”.
Note Pope
Francis has also asserted that “a form of genocide” is taking place
against Christians in the Middle East.
Note
5 The
legal situation concerning prosecution of Daesh members
29. As noted above, there is no
doubt that Daesh has committed a catalogue of war crimes and crimes against
humanity in Iraq and Syria, and an increasingly widespread acceptance
that it has also committed genocide. Such actions fall within the
jurisdiction of the ICC, as defined by Articles 5, 6, 7 and 8 of
the Rome Statute. Under Article 28, Daesh military commanders would
appear to be responsible for the crimes of those under their command,
given Daesh’s hierarchical structure and strict internal discipline
(see paragraphs 7 and 9 above). The defence of “superior orders”
under Article 33 is unlikely to be available to military subordinates, on
account at the very least of the manifest unlawfulness of the orders
given.
Note
30. Under Article 12 of the Rome Statute, the ICC can only exercise
jurisdiction where the alleged offence occurred on the territory
of, or was committed by a national of a State Party to the Rome
Statute, or a State that has declared its acceptance of the jurisdiction
of the ICC with respect to the crime in question. Otherwise, the
ICC has jurisdiction if the UN Security Council refers “the situation
in which one or more such crimes appears to have been committed”
to the ICC Prosecutor, under Article 13 – as was done, for example,
in the cases of Sudan and Libya.
31. Neither Iraq nor Syria is Party to the Rome Statute and neither
has accepted the ICC’s jurisdiction. The ICC therefore does not
have territorial jurisdiction over all relevant crimes committed
in those countries. As noted in paragraph 8 above, however, many
foreign fighters, including thousands from Council of Europe member
States and other States Parties to the Rome Statute, have joined
Daesh and many will, at some level, have been involved in committing
offences under international law. This potentially brings such persons
within the personal jurisdiction of the ICC, even though the crimes
they have committed did not take place on the territory of a State
within its jurisdiction.
32. Under Article 53 of the Rome Statute, the ICC Prosecutor shall,
having evaluated the information made available to her, initiate
an investigation, unless she determines that there is no reasonable
basis to proceed, considering whether the information available
provides a reasonable basis to believe that a crime within the jurisdiction
of the ICC has been or is being committed. This decision may at
any time be reconsidered on the basis of new facts or information.
33. On 8 April 2015, the Prosecutor issued a “Statement on the
alleged crimes committed by ISIS”. This noted that “the atrocities
allegedly committed by ISIS undoubtedly constitute serious crimes
of concern to the international community and threaten the peace,
security and well-being of the region, and the world”.
Note She recalled
that whilst the ICC does not have territorial jurisdiction over
these crimes, it may nevertheless exercise personal jurisdiction over
alleged perpetrators who are nationals of a State Party. Although
thousands of foreign fighters had joined Daesh, some of whom may
have been involved in the commission of crimes under international
law, it was primarily led by nationals of Iraq and Syria, and so
the prospects of investigating and prosecuting those most responsible
within the leadership appeared limited. She thus concluded that
“the jurisdictional basis for opening a preliminary examination
into this situation is too narrow at this stage”.
34. The Prosecutor’s Statement then noted that decisions of States
not party to the Rome Statute (i.e. Iraq and Syria) to accept the
ICC’s jurisdiction or of the Security Council to confer jurisdiction
on it are wholly independent of the ICC itself. She also emphasised
that the primary responsibility for the investigation and prosecution
of perpetrators of mass crimes rests, in the first instance, with
national authorities, adding that the Office of the Prosecutor remained
committed to working with relevant States to support domestic investigations and
prosecutions. The Office also remained open to receiving additional
information on the positions occupied by State Party nationals within
Daesh, which could justify future reconsideration of her decision.
35. On 17 December 2015, the Global Justice Centre wrote to the
Prosecutor in support of submissions of further detailed information
on foreign fighters and their roles in Daesh made by the Yazda organisation
and the Free Yazidi Foundation, intended to meet the requirements
for opening a preliminary examination into genocide and other crimes
committed against the Yazidis by nationals of States Parties to
the Rome Statute. This letter recalled the policy of the Office
of the Prosecutor as set out in its 2015 Report on Preliminary Examination
Activities, which stated that the Office would “expand its general
prosecutorial strategy to encompass mid- or high-level perpetrators,
or even particularly notorious low-level perpetrators, with a view
to building cases up to reach those most responsible for the most
serious crimes. The Office may also consider prosecuting lower-level
perpetrators where their conduct has been particularly grave and
has acquired extensive notoriety”. It also referred to the significance
that the Prosecutor should give to crimes involving sexual violence,
gender violence or violence against children, in accordance with
Article 54 of the Rome Statute and the Office’s stated policy on
sexual and gender-based crime.
6 Overcoming
the legal obstacles to prosecuting Daesh members
36. There are three obvious solutions
to overcome the obstacles to exercise by the ICC of its jurisdiction over
the crimes committed by Daesh: one, Syria and/or Iraq accept the
ICC’s jurisdiction; two, the UN Security Council refers the situation
to the ICC Prosecutor; and three, the Prosecutor decides to investigate
crimes committed by nationals of a State that is a Party to the
Rome Statute or has accepted the ICC’s jurisdiction.
37. The first of these is unrealistic. The second is also unlikely,
as such a referral would arguably relate to the entire “situation”
in which the crimes were committed. Since serious allegations have
been made concerning the actions of certain permanent members of
the Security Council or their allies,
Note they
may be reluctant to empower the ICC to open an investigation that
could examine not only the crimes of Daesh, but also possible offences
committed by other actors in the course of the wider conflict. This
means that one or more of the permanent members could be motivated
to exercise their veto over any decision to refer the situation
to the ICC. On 22 May 2014, a draft Security Council resolution
to refer the situation in Syria to the ICC was vetoed by Russia
and China, despite all 13 other members – including Council of Europe
member States France, Lithuania, Luxembourg and the United Kingdom
– voting in favour. No subsequent attempt has been made to refer
the situation in Syria and/or Iraq to the ICC and the international
community’s efforts now aim at other solutions to enable prosecution
of the perpetrators of atrocities in Syria. In August 2017, IICISAR member
Ms Carla Del Ponte resigned in protest at the UN Security Council’s
failure to act on the inquiry’s findings and recommendations, arguing
that its work was “not backed by any political will”.
Note
38. The third possible solution to allow prosecution before the
ICC, although only partial in that it would be limited to alleged
perpetrators who are nationals of a State under the ICC’s jurisdiction,
nevertheless offers several important advantages. An investigation
by the Prosecutor would help to secure evidence, including the testimony
of witnesses, to the standard necessary for presentation in court,
including domestic courts. Even if no prosecution of any kind was
ever subsequently brought, this evidence would be available as a
reliable historical record of events. Should the prosecutor decide
to bring charges, this would mark the beginnings of justice for
the victims, make possible conviction and punishment of offenders
and increase the political pressure on the Security Council to refer
the situation to the ICC.
39. An alternative route to justice could be the establishment
of an ad hoc tribunal. Since February 2015, the IICISAR, having
noted the lack of consensus amongst Security Council members on
the question of referral to the ICC, has been recommending that
it consider referring the situation to an ad hoc tribunal;
Note the
March 2016 resolution of the US House of Representatives also called
for the “establishment and operation of appropriate tribunals”.
Various possibilities exist. The UN Security Council has adopted
resolutions establishing ad hoc international criminal tribunals
twice in the past, for the former Yugoslavia in 1993 and for Rwanda
in 1994. There have also been various special courts based on agreements
between the national authorities of the State in which relevant
offences were committed and the United Nations, such as the Special
Court for Sierra Leone, established in 2002, and the Special Tribunal
for Lebanon, established in 2007. Another model might be the special
“hybrid” judicial mechanisms within the domestic legal system, such
as the Special Panels for Serious Crimes in East Timor, established
in 2000, the Extraordinary Chambers in the Courts of Cambodia, established in
2001, or the War Crimes Chamber of the State Court of Bosnia-Herzegovina,
established in 2004, in which international judges sit alongside
national ones. I understand that the Iraqi authorities are somewhat
reluctant to agree to a “special court” or a “hybrid” judicial mechanism.
Consideration could therefore be given to variants on these models,
such as extraordinary chambers within Iraqi courts, composed of
Iraqi judges, but assisted by international experts.
40. As the ICC Prosecutor has noted, however, the primary responsibility
for investigating and prosecuting war crimes, crimes against humanity
and genocide rests with domestic authorities, and the ICC intervenes when
States fail to act. According to Amnesty International, the great
majority of UN member States have legislated to provide for universal
jurisdiction over at least one of these crimes, although this does
not necessarily mean that they can effectively act to enforce international
criminal law, due to obstacles within the legislation.
Note The IICISAR observed as early
as February 2015 that many States have been willing to investigate
and prosecute their own nationals, and that some had shown a willingness
to exercise universal jurisdiction also over foreign nationals;
it urged the international community to use the principle of universal jurisdiction
to investigate and prosecute alleged perpetrators.
Note More
recently, the UN General Assembly has welcomed States’ efforts to
investigate and prosecute crimes committed in Syria, urged other
States to do the same and encouraged information sharing between
States.
Note
41. Most countries that replied to the questionnaire allow for
exercise of universal jurisdiction over offences under international
law, most clearly in the cases of Austria, Canada, Cyprus, Denmark,
Finland, France, Germany, Ireland, Lithuania, the Netherlands, the
Slovak Republic, Slovenia, Sweden, Switzerland and the United Kingdom.
Many countries’ replies made clear their policy of applying criminal
law measures to returnees from Syria and Iraq: Austria, France,
Germany, Spain, Sweden, Switzerland and the United Kingdom all drew particular
attention to their readiness to investigate and, where justified,
prosecute returnees. In France, for example, the Anti-Terrorism
Unit is working on 122 procedures: 170 persons are under investigation,
of whom 105 were remanded in custody. The Netherlands has prosecuted
15 returnees, three of whom were convicted; Norway has prosecuted
eight, with five convicted; and information provided in the United
Kingdom’s reply suggests that eight returnees have been convicted
for terrorist offences. Norway also indicated that it was considering
initiating criminal investigations against persons who had not yet
returned, in order that international arrest warrants could be issued.
Several replies, in particular those of Denmark, Finland, France and
the United Kingdom, described at some length the serious potential
long-term security threat posed by returnees. United Kingdom law
allows for deprivation of citizenship; it has been reported that
over 150 suspected jihadists and criminals have been deprived of
their citizenship and banned from returning to the United Kingdom,
amid fears of an influx of Daesh members resulting from its military
defeat.
Note Denmark
has introduced a ban on travelling to certain affected areas; other
countries allow for seizure of suspects’ passports (France, in the
case of minors, Germany and the United Kingdom).
42. A number of States also underlined the need for deradicalisation
and reintegration measures, notably Austria, Canada, Denmark, Finland,
Ireland, Slovenia and Sweden, the latter stressing the importance
of such measures given the difficulties in obtaining evidence against
and securing convictions of returnees. Re-education measures for
the children of returning Daesh members, who may be too young to
be considered criminally liable for their previous situation but
may have been subject to violent extremist indoctrination, is particularly
important.
43. Whether the crimes of Daesh will be prosecuted before national
or international courts, the gathering of evidence remains an essential
task: the Special Adviser on the Prevention of Genocide, for example,
has called for “all evidence of criminal activity to be properly
documented and secured for future consideration by a court of justice”.
Note The IICISAR has played a particularly important
role in this respect, amongst other things by compiling lists of
alleged perpetrators. The IICISAR, as well as the ICC Prosecutor,
has indicated willingness to share evidence with national authorities.
I have therefore proposed that the Committee ask the Bureau to invite
a representative of IICISAR to address the Assembly during the debate
on this report.
44. On 21 December 2016, the UN General Assembly decided to establish
an “International, Impartial and Independent Mechanism to Assist
in the Investigation and Prosecution of Persons Responsible for
the Most Serious Crimes under International Law Committed in the
Syrian Arab Republic since March 2011”.
Note The
new mechanism will co-operate closely with the IICISAR “to collect,
consolidate, preserve and analyse evidence of violations of international
humanitarian law and human rights violations and abuses and to prepare
files in order to facilitate and expedite fair and independent criminal
proceedings, in accordance with international law standards, in
national, regional or international courts or tribunals that have
or may in the future have jurisdiction over these crimes, in accordance
with international law”.
Note It should be
noted, however, that its mandate extends only to Syria, in relation
to acts committed since 2011 not only by Daesh but by all parties
to the conflict, and does not include Iraq. Furthermore, although
Ms Catherine Marchi-Uhel, a French former judge, was appointed head
of the mechanism in July, it has still not become fully operational,
as it has not yet received the voluntary contributions necessary
to finance its activities.
45. A similar mechanism should be established for the Daesh atrocities
committed in Iraq. Furthermore, individual States can also contribute
to the gathering of evidence, for example by responding to the IICISAR’s recommendation
that States provide expertise, on request, to assist in the preservation
and documentation of mass grave sites.
Note
7 Conclusions
46. Daesh has committed some of
the most appalling crimes the world has seen in recent years, unquestionably
amounting to offences under international law. It has not been possible
to bring the perpetrators to justice in Syria or Iraq, the countries
where these crimes took place. It has not been possible to bring
cases before the ICC, because neither Syria nor Iraq has accepted
its jurisdiction, the UN Security Council has failed to refer the
situation and the ICC Prosecutor has decided not to investigate
alleged perpetrators from States within the ICC’s jurisdiction.
Whilst some States have made laudable efforts to investigate and
prosecute Daesh’s crimes through exercise of universal jurisdiction,
these are far from enough to do justice to the victims or to manifest
the international community’s condemnation. Daesh continues to act
with shameful impunity, and the response of the international community
as a whole remains woefully inadequate.
47. General political recognition of the commission of genocide
by Daesh would help to achieve this, by turning a vicious circle
into a virtuous one. The courts are at present unable to make a
definitive finding on the issue because of lack of jurisdiction
or evidence, but with no such finding, many States are failing to
act on their positive obligations under the 1948 Genocide Convention.
Recognition of the genocide by States followed by concerted action
pursuant to their obligations could provide the ICC in particular
with the opportunity and means to bring Daesh to justice. Of course,
genocide is a perhaps uniquely serious allegation and one that should
not be made lightly, but there is now more than enough evidence
to justify its use in a political sense, as shown by the positions
of a growing number of national and international bodies. It is
also the case that general political qualification of the actions
of Daesh as genocide, whilst having legal consequences for the international
community by paving the way for proper judicial investigations,
in no way prejudices criminal proceedings against Daesh – although
it may be essential if they are ever to be brought to trial.
48. In the meantime, the international community must ensure that
the evidence necessary for eventual prosecution of Daesh members,
whether before domestic or international courts, is collected and
preserved to the necessary standards of admissibility. Just as Nazi
war criminals are still being prosecuted for their heinous crimes
today, so should justice never rest until the criminals of Daesh,
both principal and complicitous actors, are brought to account and
punished their crimes.
49. The Parliamentary Assembly must stand by its condemnation
of Daesh’s crimes, including its commission of genocide, and make
specific recommendations to member and observer States and other relevant
international actors with a view to prosecuting and punishing the
perpetrators, as proposed in the draft resolution.
