UNITED NATIONS — For the first time, the United Nations has launched an international investigation into the crimes of the so-called Islamic State. In doing so, the U.N. sends a message to ISIS terrorists that if they commit genocide, war crimes or crimes against humanity, they will be put on trial. And it tells victims that they may finally have their day in court.
Security Council Resolution 2379 was spearheaded by the U.K. government and passed unanimously Thursday by the council’s 15 members. It establishes a U.N. investigative team, led by a special adviser, to collect evidence of ISIS’s crimes in Iraq. This evidence can then be used in trials against ISIS militants around the world. The resolution is a rare show of unity for the council and provides a global response to ISIS that extends beyond the battlefield to include a commitment to punishing individuals through the courts. It is a major victory for ISIS victims, who have bravely campaigned for justice and waited too long for a chance to see their tormentors in the dock.
According to the U.S. State Department, ISIS has “committed the overwhelming majority of serious human rights abuses” in Iraq. The U.N. has documented the terrorist group’s horrific crimes against Shiites, Christians, Sunnis and others as well as crimes amounting to genocide against the Yazidis. Yazidis are neither Christian nor Muslim, and partly because they do not have a holy book, ISIS considers them to be the worst type of infidel.
Nadia Murad, an ISIS survivor who has become the U.N.’s ambassador on human trafficking, is one of thousands of Yazidis who were kidnapped and kept as sex slaves by ISIS militants. Her mother and brothers were executed, and her nephews were taken as child soldiers. Nadia cannot understand why, even though the genocide began over three years ago, no ISIS member has been put on trial for it. Instead, evidence has been disappearing every day: witnesses have fled, medical evidence has been lost and documents have been destroyed. Mass graves, including the one where Nadia believes her mother is buried, have been exposed to contamination. Unless evidence is properly collected now, justice will forever remain out of reach. This is why the Security Council’s intervention is so critical: not just for the Yazidis but for all victims of ISIS’s brutality.
Evidence has been disappearing every day: witnesses have fled, medical evidence has been lost and documents have been destroyed.
The U.N. team established by the Security Council is to work alongside Iraqi prosecutors and judges to gather evidence for use in trials that respect international standards of due process, whether in Iraq or abroad. Although many ISIS fighters have been killed in Iraq, thousands have been arrested there and many more can be detained as additional evidence is gathered. Some of ISIS’s foreign fighters are returning to their home countries and could be prosecuted there too. New evidence can also help the International Criminal Court, which has jurisdiction over ISIS fighters who are nationals of any of the 124 countries that are members of the court.
The Security Council’s resolution answers a call for assistance by the Iraqi government, which faces serious challenges in prosecuting the large-scale atrocities that have afflicted its civilian population. Although there have been some trials against ISIS members in Iraq, none have included charges of genocide or sexual violence. The trials that have taken place have also given rise to serious due process concerns.
The U.N. has found that there has been “a consistent failure to respect … fair trial standards” in Iraqi criminal courts. U.N. observers report that judges routinely convict defendants based on confessions alleged to have been obtained by torture and that defendants are “rarely given the opportunity to present a defense … or meet with a lawyer.” Human Rights Watch and Amnesty International reports reached similar conclusions. Despite these shortcomings, trials before Iraqi courts result in lengthy prison sentences or even in executions; in fact, use of the death penalty in Iraq is currently on the rise.
Some of ISIS’s foreign fighters are returning to their home countries and could be prosecuted there.
The U.N. must not be complicit in the use of courts as killing machines or in any trial that denies the defendant due process and thereby robs victims of their right to meaningful justice. This is why it is important that the resolution requires evidence to be gathered “to the highest possible standards” and only for use in “fair and independent” criminal proceedings. The terms of the resolution expressly require that the U.N. team should also comply with international law and U.N. best practice. This sets a high bar because international law includes detailed requirements for fair trials, and U.N. best practices include a commitment to not use the death penalty.
The resolution also envisages long-term international assistance to Iraq’s legal system to promote its ability to conduct fair trials. It proposes that the international experts on the U.N. team should “share knowledge and technical assistance with Iraq” and that states should do the same in order “to strengthen [Iraq’s] courts.” Such assistance measures could include training for Iraqi judges and lawyers as well as legal advice on adding international crimes to the statute books. But in the shorter term, it is difficult to envisage how Iraqi trials could meet international standards without assistance that includes adequate participation in the trials by international judges, prosecutors and trial monitors.
The success of the Security Council’s initiative will ultimately depend on how it is implemented by the U.N. and the Iraqis. Much remains to be done, and the success of the investigation is far from certain. But for Nadia and thousands of other victims of ISIS’s brutality, this is a time to celebrate the fact that justice is now, finally, within reach.
Amal Clooney is legal counsel to Yazidi victims of ISIS’s crimes, including Murad and victims represented by the nonprofit Yazda. For over a year, Clooney has advocated for a U.N. investigation into ISIS crimes and for prosecutions before international courts. She currently represents Yazidi women in cases against current and former ISIS members in Germany and the U.S.
