Prosecuting and punishing the crimes against humanity or even possible genocide committed by Daesh
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly
debate on 12 October 2017 (34th Sitting) (see Doc. 14402, report of the Committee on Legal Affairs and Human
Rights, rapporteur: Mr Pieter Omtzigt; and Doc. 14418, opinion of the Committee on Political Affairs and Democracy,
rapporteur: Ms Thorhildur Sunna Ævarsdóttir). Text
adopted by the Assembly on 12 October 2017 (34th Sitting).
1. The Parliamentary Assembly recalls
its
Resolution 2091 (2016) on
foreign fighters in Syria and Iraq. It reiterates its position that
“individuals who act in the name of … Daesh … have perpetrated acts
of genocide and other serious crimes punishable under international
law. States should act on the presumption that Daesh commits genocide”,
along with its calls on its member and observer States to “fulfil
their positive obligations under the 1948 United Nations Convention
on the Prevention and Punishment of the Crime of Genocide [1948 Genocide
Convention] by taking all necessary measures to prevent genocide”.
2. Numerous national parliaments, including those of Council
of Europe member States such as Austria, France, Lithuania and the
United Kingdom, as well as those of Australia, Canada and the United
States of America, have also condemned Daesh’s actions as genocide,
as have the European Parliament, the United States and Canadian
governments and Pope Francis. These political positions reflect
the expert assessments of authoritative international mechanisms
including the United Nations Independent International Commission of
Inquiry on the Syrian Arab Republic, the United Nations High Commissioner
for Human Rights and the United Nations Special Rapporteur on minority
issues.
3. There is conclusive evidence that Daesh has committed genocidal
acts against members of the Yazidi, Christian and non-Sunni Muslim
minorities including mass and individual killings, and serious bodily
or mental harm, by way of torture, beatings and inhuman and degrading
treatment and, in the case of the Yazidi and Christian groups, rape,
sexual slavery and abuse. Furthermore, there is conclusive evidence
that Daesh has:
3.1 subjected Yazidis
to forced labour, including military service, and terrorist indoctrination,
including training children as suicide bombers, amounting to serious
bodily and mental harm; deliberately inflicted conditions of life
calculated to bring about the Yazidi group’s physical destruction,
in part, by way of subjection to siege and to unsanitary living
conditions and inadequate nutrition without access to medical care;
imposed measures intended to prevent births, by separating Yazidi
women and men; and forcibly transferred children of this group to
another, with subsequent forced conversion and indoctrination of these
children;
3.2 deployed members of Christian minorities as “human shields”,
causing serious bodily or mental harm, and separated Christian children
from their mothers, forcibly transferring them to another group.
4. These acts have been committed by Daesh with intent to destroy,
in whole or in part, the Yazidi, Christian and non-Sunni Muslim
minority groups. In particular, Daesh has made numerous declarations
of doctrine and policy encompassing the destruction of Yazidi, Christian
and non-Sunni Muslim minorities as groups, and declared its intention
to commit specific genocidal acts against them, before and during
commission of these acts. These include descriptions of the Yazidi
as “devil-worshipping pagans” and references to Christians as “slaves
of the cross” whose women and sons would be enslaved. The atrocities
committed by Daesh against all three groups are systematic and entirely
consistent with these declarations. Daesh’s systematic destruction of
Yazidi, Christian and non-Sunni Muslim places of worship is further
evidence of its genocidal intent in committing the above-mentioned
acts. Its theft of homes and property of Yazidis, Christians and
non-Sunni Muslims also indicates a genocidal intent to disperse,
and weaken the cohesion of, these groups, with a view to their destruction.
5. Neither Syria nor Iraq is Party to the International Criminal
Court (ICC), whose material jurisdiction includes the crime of genocide,
as well as other crimes under international law. The United Nations
Security Council has been prevented by the vetoes of two of its
permanent members from referring the situation in Syria to the ICC,
and the ICC Prosecutor has declined to open an investigation in
relation to offences that may have been committed by nationals of
a State Party to the Rome Statute of the ICC. There is thus at present
no international judicial mechanism actually capable of trying Daesh.
In this connection, the Assembly recalls that the primary responsibility
for the investigation and prosecution of crimes covered by the Rome
Statute rests with national authorities, especially those of the
States where those crimes have taken place.
6. On the basis of the foregoing, the Assembly calls on Council
of Europe member and observer States and States whose parliaments
enjoy observer or partner for democracy status with the Parliamentary Assembly,
where applicable, to:
6.1 formally
recognise that Daesh has committed genocide, notably against the
Yazidi people, Christian minorities and non-Sunni Muslim minorities;
6.2 take prompt and effective action in accordance with their
obligation under the 1948 Genocide Convention to prevent and punish
acts of genocide, and their general responsibility to act against
crimes under international law, including by:
6.2.1 providing
for universal jurisdiction over crimes covered by the Rome Statute
of the ICC, where this is not already the case, and, following the
example set by Sweden and Germany, investigating and, where justified,
prosecuting any suspected Daesh members who come within their jurisdiction
or control;
6.2.2 prosecuting all offences committed within their jurisdiction
relating to Daesh’s activities abroad, and in this connection, ratifying
and fully implementing the 2005 Council of Europe Convention on
the Prevention of Terrorism (CETS No. 196) and its 2015 Additional
Protocol (CETS No. 217);
6.2.3 not prioritising, systematically and exclusively, with
regard to the members of Daesh, the application of national anti-terrorist
legislation, to the detriment of their universal jurisdiction when examining
cases involving the crimes described in the Rome Statute of the
ICC;
6.2.4 implementing the recommendations set out in Assembly
Resolution 2091 (2016),
in particular not granting refugee status to fighters who may have
committed acts of genocide and/or other serious crimes prohibited
under international law and who seek international protection on
returning to Europe, in accordance with the exclusion clauses provided
for in Article 1F of the United Nations Convention of 28 July 1951
on the Status of Refugees;
6.2.5 contributing to the collection and preservation of evidence
of Daesh’s crimes, including by making voluntary contributions to
the budget of the United Nations 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, in order
that it may become fully operational without further delay;
6.2.6 supporting the Secretary-General of the United Nations
in setting up the investigative team described in Resolution 2379
(2017) of the United Nations Security Council to support the Iraqi
justice system in gathering evidence of war crimes, crimes against
humanity and genocide committed by Daesh in Iraq;
6.2.7 insisting that the United Nations ordinary budget should,
as soon as possible, contribute to the funding of the mechanism
and of the investigative team;
6.2.8 not obstructing any possible future United Nations Security
Council resolution that may contribute to the prosecution of Daesh
members before an international, hybrid or national tribunal.
7. The Assembly calls on the Iraqi authorities to contribute
to and co-operate with the work of the investigative team. It calls
on the international community to provide the necessary resources
for the investigative team to become promptly operational. It further
calls on the United Nations to consider establishing a special judicial
mechanism for trying crimes committed by Daesh in Iraq, which could
be based on existing international or hybrid models, or a system
based in the Iraqi national courts with assistance from international
experts as advisers rather than judges.
8. The Assembly also calls on:
8.1 Syria
and Iraq to ratify the Rome Statute of the ICC;
8.2 the Independent International Commission of Inquiry on
the Syrian Arab Republic to proceed with its report on genocide
committed by Daesh against religious minorities other than the Yazidis;
8.3 the ICC Prosecutor to reconsider, in the light of subsequent
submissions by concerned parties, her decision not to open a preliminary
inquiry into crimes committed by Daesh.