C Explanatory memorandum, by Ms Thorhildur
Sunna Ævarsdóttir, rapporteur for opinion
1. The crime of genocide is a
permanent stain on humanity’s conscience. Those who have experienced
the horror of genocide but survived are marked for life. Those who
were not victims will always regret not having been able to prevent
it. It is the most abject manifestation of what a major theorist
of international public law of the 20th century called “the sore
of humanity”.
Note The expression speaks for itself:
the crime of genocide abolishes the concepts of fellow creatures,
of being part of a community of human beings and of shared humanity.
The crime of genocide takes place when people are denied the right
to exist. People are accused of only one crime – the crime of having
been born – and are killed for that crime. It is no coincidence
that Robert Antelme and Primo Levi, who both escaped from Nazi extermination
camps, entitled their accounts of their experience in concentration
camps
The Human RaceNote and
If
This Is a Man,
Note respectively.
2. Like the rapporteur, Mr Pieter Omtzigt, I firmly believe that
such a crime has been committed by Daesh, that this is an irrefutable
fact and that the argument that this must be acknowledged by a court
before any action can be taken is a mere excuse for not acknowledging
the facts. I believe that the States Parties to the 1948 United
Nations Convention on the Prevention and Punishment of the Crime
of Genocide have failed to fulfil their positive obligations to
take all necessary measures to prevent genocide or have done so
only to a very small extent and imperfectly.
3. This is particularly unacceptable given that there were sufficient
warnings. As far back as 2012, in his report on “The situation in
Syria”, the former Chairperson of the Committee on Political Affairs
and Democracy, Mr Pietro Marcenaro, underlined the vulnerability
of minorities in this country. In
Resolution 1878 (2012), which was adopted at the initiative of our committee,
the Assembly first and foremost condemned the abuses committed by
the Syrian regime against its people. But at the same time, it sensed
the danger. Paragraph 10 of the resolution reads as follows: “The
Syrian population is a mosaic of ethnic, cultural and religious
groups and this diversity, together with the territorial integrity
of Syria, must be preserved …” If it needed to be preserved, it
was because it was feared that it was under threat.
4. Two years later, in August 2014, when Daesh had conquered
Qaraqosh, a major Christian centre in Iraq, and had surrounded the
region of Sinjar where a large number of Yezidis live, the Chairperson
of our committee at that time, Ms Theodora Bakoyannis, called for
more help for persecuted religious groups in Iraq.
Note On the occasion of a debate under
urgent procedure, and on the basis of a report drawn up by Ms Bakoyannis,
the Assembly adopted
Resolution
2016 (2014) “Threats against humanity posed by the terrorist group
known as “IS”: violence against Christians and other religious or
ethnic communities”. Paragraph 2 of this resolution is very clear:
“[The
Assembly] draws attention once again to the situation of Christian
and other religious and ethnic communities in the Middle East in
general, and in Iraq and Syria in particular. Due to recent developments
in the region, in particular the attitude of the ‘IS’, the situation
of such communities has evolved from alarming to desperate. In some
places now under the control of the ‘IS’, those communities have
already disappeared.”
5. In 2014, therefore, some religious and ethnic communities
had disappeared from areas in Iraq and Syria. Genocide was at work.
In his report on “The situation in Aleppo” (
Doc. 14197), our colleague Jean-Claude Mignon summarised the situation
after four years of war: “The Assembly rightly underlined that persecution
of religious and ethnic communities had steadily transformed into
a full-scale lethal onslaught.”
Note
6. These warnings from the Assembly were not heeded. I would
like to point to the responsibility that the United States, the
United Kingdom and the coalition of the willing bear for the situation
in Iraq today. Many mistakes were made during and following the
invasion of Iraq that threatened security in the country and the entire
region and contributed to the rise of Daesh. Here I would like to
point to the failure to disarm and demobilise former soldiers in
the Iraqi army, failure to secure weapons storage and the slow progress
of State-building in the wake of the invasion in Iraq, an invasion
which was in violation of international law. Could the members of
the United Nations Security Council have overcome their divisions
and imposed Secretary-General Annan’s 2012 plan for Syria? Could
the central Iraqi Government and the international coalition against
Daesh have done more to protect the Christians of Qaraqosh and the
Yezidis in the Sinjar region in August 2014? I do not intend to
chronicle a foreseeable disaster or to speculate on “what might
have happened if” or to assess the responsibilities or all concerned.
Nevertheless, the cruel fact remains: we did not prevent the genocide
carried out by Daesh.
7. Although States failed to comply with their obligation to
prevent the genocide, most of those who have seen a number of their
citizens set out to join Daesh, have tried to prevent them from
leaving and done so in an increasingly effective manner. In so doing
they have heeded the calls from the Assembly outlined in
Resolution 2091 (2016) on foreign fighters in Syria and Iraq, to “do their
utmost to prevent their own nationals from taking part in such acts
[of genocide]”.
Note That is meagre consolation,
particularly given that the real reason for preventing their nationals
from joining Daesh was, in most cases, to protect national security.
The main fear was the threat that these terrorist fighters might
pose when they returned to their country of origin.
8. Genocide has taken place. Although we did not prevent it,
we still have a duty to try and bring to justice those who planned
it and carried it out. Not only because the victims are entitled
to compensation and to the official recognition of the crime of
which they are the victims, as argued by Ms Amal Clooney, who has
taken up the cause of the Yezidis, but also because we have a moral duty
to punish a crime which destroys any idea of a human community,
any idea of humanity. The aim is to punish a crime which not only
concerns the victims but every one of us.
9. Ideally, the court envisioned in the 1948 Convention should
be set up. But we have been waiting for this court for 70 years
and I think we will still have to wait a long time. Although I would
like to see the matter brought, even if only in part, before the
International Criminal Court, because I believe it has real legitimacy,
I doubt that it will happen. Finally, with regard to the establishment
of an ad hoc court, I do not believe that there will be a sufficiently
broad consensus, in the current international context, to set up
a court along the lines of the International Criminal Tribunal for
the former Yugoslavia (ICTY), the International Criminal Tribunal
for Rwanda or even the Special Tribunal for the Lebanon. Ms Carla
del Ponte, former member of the United Nations Independent International
Commission of Inquiry and former Chief Prosecutor of the ICTY, has
revealed the bitter truth on this issue and pointed to the refusal
of the Security Council to act on this matter.
Note
10. I therefore think that there is no hope of a strictly international
solution. The rapporteur was right to point out in his explanatory
memorandum, and in his draft resolution, that primary responsibility
for the investigation and prosecution of crimes covered by the Rome
Statute rests with the national authorities, especially those of the
States where those crimes have taken place, i.e. Syria and Iraq.
I do not think anyone today has confidence in the Syrian system
of justice and Bashar al-Assad is not likely to request the establishment
of a special or hybrid tribunal. The situation is, however, different
in Iraq.
11. This summer we noted Bagdad’s increased focus on the gathering
of evidence of the crimes committed by Daesh on its territory. In
a letter dated 16 August 2017, Mr Ibrahim al-Jaafari, the Iraqi
Minister for Foreign Affairs, asked the UN Secretary General that
a body be set up to enquire into and prosecute the crimes against humanity
committed by Daesh.
NoteNoteNote The resulting UN Security Council
Resolution of 21 September 2017 asks the Secretary-General to establish
an Investigative Team to “support domestic efforts to hold [Daesh]
accountable by collecting, preserving, and storing evidence in Iraq
of acts that may amount to war crimes, crimes against humanity and
genocide …”.
Note This is welcome support for Iraqi
efforts to hold Daesh members responsible for their crimes in Iraq
and I urge member States to assist the Investigative Team where
possible, for example by providing legal assistance and donating
to its budget. Perhaps this step forward will lead the Iraqi Government, in
the long term, to consider the establishment of a special or hybrid
tribunal, but we have not reached this point yet.
12. The most effective solution in the near future continues to
be universal jurisdiction, at least in areas where it exists. I
therefore think it is essential that those Council of Europe member
States, observers and partners for democracy which have not yet
done so, should provide for such a mechanism in their legislation, by
incorporating in their laws the right to rule on crimes set out
in the Statute of the ICC, enabling them to try any person who has
taken part in such crimes and not only their own nationals. I therefore
believe that paragraph 6.2.1 of the draft resolution is essential.
13. Irrespective of whether you believe that an ad hoc or hybrid
tribunal will be set up in the medium or long term, or, like me,
that the universal jurisdiction of national courts is currently
the only real possibility for convicting Daesh members of the crime
of genocide, it should be borne in mind that the fundamental difficulty for
the courts will be that of proving that the crime was committed.
Where the crime of genocide is concerned, a great deal of evidence
is required for conviction and, as we know, it is an enormous challenge
to preserve tangible elements of proof in a country where war is
still going on.
14. That is why the United Nations Independent International Commission
of Enquiry is so important. I have noted that Ms Carla del Ponte
has strongly criticised the Commission and resigned from it. However,
she has said her resignation is on account of the Security Council’s
failure to take action and the Commission’s lack of powers in terms
of criminal prosecution. She did not cast any doubt on the quality
of evidence of crimes gathered by the Commission.
Note
15. It is therefore necessary that the International Impartial
Independent Mechanism, set up by the UN General Assembly in December
2016, becomes fully operational. In this respect, I would like to
add some further information to Mr Omtzigt’s report. On 2 March
2017, the UN High Commissioner for Human Rights, under whose authority
the Mechanism has been placed, said that the sums required for the
Mechanism to come into operation had been estimated at between 4
and 6 million dollars, while one year’s operation would cost some
13 million dollars
Note. According to the press, in July
2017 the Mechanism had received voluntary contributions amounting
to 9 million dollars, mainly from the Netherlands, Germany and Finland.
Note In other words, the Mechanism has
the funds required for this year which is good news as the sooner
evidence is gathered, the more effective it will be.
16. On the other hand, I agree with the High Commissioner for
Human Rights that it is regrettable that the United Nations refused
to finance this Mechanism out of their ordinary budget and that
they preferred to call for voluntary contributions given the uncertainty
that will cause the Mechanism year in year out. I believe that the
legal, symbolic and memorial importance of this Mechanism justifies
making it a part of the UN budget in order to allow forecasting
and a sustainable work environment. Our Assembly should strongly
recommend this, and the same goes for the Investigative Team.
17. Citizen’s initiatives could also play a critical role in the
gathering of evidence of genocide. NGOs that wish to contribute
to the effective punishment of crimes against humanity and genocide
can do so by collecting evidence in a professional manner with the
help of the
Handbook on Civil Society
Documentation of Serious Human Rights Violations.
Note
18. Irrespective of the quality of the evidence gathered by the
international commission, the Mechanism for Syria and, perhaps in
the very near future, the Mechanism for Iraq, we should be prepared
for the sentencing of members of Daesh on grounds of genocide to
take a long time, even if such convictions are made on the basis
of the universal jurisdiction of national courts. It was 15 years
after the Rwandan genocide that a Rwandan national was first found
guilty of genocide by the Canadian courts
Note and
20 years before the French courts convicted a Rwandan national on
grounds of genocide.
Note
19. This time lag and the difficulty in proving the crime of genocide
give me cause to fear that national courts may be more inclined
to convict members of Daesh on the basis of their anti-terrorist
laws than on the basis of their universal jurisdiction in matters
concerning genocide. The rapporteur’s explanatory memorandum also suggests
this: paragraph 41 gives examples of numerous investigations and
convictions of persons returning to a country, often their home
country, after fighting for Daesh, but all on charges of terrorism.
20. The reason for this is obvious: the national courts want to
ensure that terrorist fighters do not present a security risk. They
therefore use their most effective legal tools to detain them, in
other words anti-terrorist laws. It is easier to prove that someone
belongs or has belonged to a terrorist group than to prove that
they took part in genocide.
21. I believe this approach is understandable and pragmatic given
the current threat of terrorism hanging over us, although I would
like to stress the importance of observing proper legal safeguards
and guaranteeing a fair trial, standards which are sometimes pushed
aside in the eagerness to secure a conviction. It is also paramount
that the use of this effective legal tool, prosecution for terrorist
offences, is not used to the detriment of any endeavours to charge
terrorist fighters with genocide or crimes against humanity. These
two objectives, curbing the terrorist threat and punishing the perpetrators
of genocide, must be pursued either in parallel or consecutively
but failure to exercise the right and obligation to convict for
crimes of genocide cannot become the norm.
22. As highlighted in a recent report by Human Rights Watch, Germany
and Sweden have become the first countries in which individuals
have been tried and convicted of war crimes or crimes against humanity
in Syria. The countries have done this on the basis of universal
jurisdiction and have been able to build on previous experience
with trials of this nature
Note. This is extremely important for
victims of genocide and for all of us as a society and I would like
to commend the countries’ justice systems for their success.
23. We all know that, as with all ordinary offences, there is
a time limitation on terrorist offences. That is not the case where
crimes against humanity or genocide are concerned, precisely because
they are considered in a different category. We owe it to ourselves,
as much as to the victims, not to give up efforts to prosecute the perpetrators.
24. Finally, with regard to foreign terrorist fighters who have
taken part in acts of genocide, it goes without saying that they
should not be entitled to any form of international protection when
they return to Europe, as stated in paragraph 4 of
Resolution 2091 (2016), and explicitly stated in the United Nations Convention
of 28 July 1951 on the Status of Refugees. I think it would be a
good idea to reiterate this in the draft resolution presented by
the Committee on Legal Affairs and Human Rights.
