After Recognition of Genocide – How to Proceed?
On 20 April 2016, the House of Commons unanimously passed a motion recognising the atrocities committed against Christians, Yazidis, and other ethnic and religious minorities by Daesh to be genocide. In addition to recognising the genocide, the motion also called upon the Government to take steps to ‘make an immediate referral to the UN Security Council with a view to conferring jurisdiction upon the International Criminal Court so that perpetrators can be brought to justice.’ As the first anniversary of passing the motion approaches, this step has not been taken yet, neither for Syria nor for Iraq.
The Government instead proceeded in a different direction. On 19 September 2016, the UK Foreign Secretary, alongside the Foreign Ministers from Belgium and Iraq, launched a global campaign to hold Daesh to account for the crimes committed in Iraq. In December 2016, the Attorney General briefed the UN in New York about his role supporting the campaign to bring Daesh to justice and the UK domestic prosecutions of Daesh fighters, of which 71 had been successful. There was no indication whether any prosecution on charges of genocide, crimes against humanity or war crimes had been considered or initiated.
The international coalition has not indicated how it will bring Daesh perpetrators to justice. It has submitted a proposal to the Iraqi government for consideration. The Iraqi government has not made any decision yet. However, urgent steps need to be taken to obtain and preserve the evidence and to ensure that the evidence would be admissible in any future prosecutions. Without this evidence, any future proceedings are at risk of failing. While some NGOs are collecting evidence of the atrocities, the evidence may not be admissible in court as it may be lacking important information, for example, statements of truth from witnesses.
A mechanism to collect and preserve evidence could be established by the UN Security Council or by the UN General Assembly. In the case of the atrocities in Bosnia and Rwanda, the UN Security Council established a commission of experts on genocide that considered the available evidence, collected further information, and prepared an opinion to confirm the nature of the atrocities as genocide. Such a commission would have been able to unequivocally confirm whether the atrocities committed by Daesh amount to genocide. However, a new mechanism could do more than that, namely, collect, preserve, and prepare evidence for any future proceedings.
The coalition could also follow the approach of the UN General Assembly in Syria. The General Assembly has passed Resolution A/RES/71/248, which sets up the 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. The Mechanism for Syria will be established to collect and preserve the evidence of the atrocities, and prepare it for any future prosecutions. A similar mechanism could be established for the crimes committed by Daesh in Iraq.
After establishing a mechanism to collect and preserve evidence, the next step would be to establish a tribunal to prosecute the perpetrators. There are a few options here, namely, an international tribunal as in the case of Bosnia and Rwanda, a regional tribunal, or a national court supported by the United Nations, as in the case of Cambodia. While the Iraqi government has indicated that any future prosecutions would be undertaken by Iraqi courts, a number of considerations suggest that some external assistance would be desirable, if not crucial. First, the Iraqi penal code does not contain any provisions on genocide. The crime of genocide would have to be incorporated into the Iraqi penal code. However, even then, the Daesh fighters would highly likely not be prosecuted for involvement and complicity in genocide because of the prohibition of applying law retrospectively. Second, Iraqi courts, which have never dealt with cases of genocide, may lack experience in dealing with such cases. Third, considering the number of Daesh fighters, including the foreign fighters coming from all over the world, it may be too much of a burden to leave the problem for Iraqi courts to deal with all prosecutions alone.
While the most appropriate tribunal can be decided at a later stage, it is crucial that the mechanism for collecting evidence is established as a matter of urgency. Without this evidence, it will be extremely difficult to initiate proceedings against the Daesh perpetrators. And without bringing the perpetrators to justice and tackling the growing impunity, no sustainable peace will ever be achievable in Iraq.