Accountability for crimes committed by ISIL: Why Austria should support UNITAD

The UN mission to Iraq consists of an investigative team to promote accountability for crimes committed by Da’esh, and remains so far the closest international justice network dealing with war atrocities in Iraq. Here is why Austria’s historic position as a supporter of international criminal justice can help the mission. 

A comment by Gabriel Hartman & Julius Seidenader

 

On 30th November 2021, a former ISIL fighter and his wife were convicted by a Frankfurt court in Germany for genocide and crimes against humanity under the German “Völkerstrafgesetzbuch” (German International Criminal Code) in a landmark trial based on universal jurisdiction. 

A significant part of the indictment in the Taha al-J. – case focused on a Yazidi girl who was purchased as a slave, and whom the couple let die of thirst outside their house in Fallujah, Iraq in 2015. Overall, the genocidal acts against the Yazidi minority resulted in more than 5000 violent deaths according to recent estimates. Other well documented atrocities committed by ISIL included the repeated deployment of chemical weapons against civilians, and mass killings of Shia, Christian, Kaka’i, Turkmen and Shabak minorities. 

 

No centralised international tribunal

When delegates of the Austrian People’s Party (ÖVP) and the Austrian Green Party signed the coalition agreement in 2020, they agreed, among other things, on the issue of creating an international tribunal for members of ISIL. Three years later, the prospects of a centralised tribunal seem to have dwindled while an increased number of states opened independent investigations against ISIL suspects. Hundreds of high-level perpetrators were trialed relatively swiftly in Iraq. Only a few of them have enjoyed adequate due process rights and fair legal proceedings.

The EU External Action Service, EU member states, including Germany, as well as UN officials opposed the death penalty for suspects in Iraq, and raised their concerns with members of the Iraqi government. The International Criminal Court (ICC) in the Hague lacked sufficient jurisdiction over Syria and Iraq, disabling prosecutors to launch preliminary investigations. Prospects of fair trials in Syria are even more far-fetched in the current situation, given the dim outlook for substantial political changes in Damascus. 

Another major contributing factor for the failure of establishing a centralised international tribunal was that several European governments were hesitant to repatriate or transfer its foreign terrorist fighters from the camps of Al-Hol and Roj in northern Syria to their home countries. 

 

The UNSC’s response: Extending Resolution 2597 (2021)

In 2016 the United Nations Security Council introduced an international framework to gather evidence on the ground in Iraq and to assist in the prosecution of suspected ISIL members around the world. The UN Investigative Team to Promote Accountability for Da’esh Crimes (UNITAD) is situated in Baghdad and has been since recently led by Christian Ritscher, a former German prosecutor. 

Unfortunately, the mandate is limited to Iraq’s territory only and does not extend to Syria. This rationale is contradicted by the reality that ISIL territory plainly encompassed regions of both countries. The issue was never settled due to political infighting over the mission’s authority.

So far, UNITAD has taken a survivor-centered approach, dispatching multiple field missions to collect DNA samples from mass graves in Nineveh and other governorates in the north and west of Iraq. The teams consist of journalists, lawyers and psychologists, who have concentrated on investigating violent acts targeting ethnic minorities such as the Yazidi and other incidents. 

Hundreds of graves have already been excavated and scanned with laser instruments in order to provide solid evidence for trials. Collected evidence has also been digitised to ease the access for prosecutors all over the world and create a foundation to request mutual legal help. 

Furthermore, acts of sexual and gender-based violence are examined with particular attention and by specialised investigation teams. As a result, an all-female team of psychologists and legal specialists was formed to conduct interviews with victims of such crimes. Prosecutors in Frankfurt utilised similar evidence in their recent successful conviction of the first ISIL militant who had been charged with genocide. 

Financial resources, seconded staff and political support of the mission have been scarce from the outset. In 2019, the UN mission only had a budget of 19.5 Mio USD and struggled to gain additional funding. Nevertheless, Germany delivered support by “seconding an expert to the team, as well as by providing financial assistance to the partner organization International Commission on Missing Persons.” 

Germany provided technical equipment for the studies and contributed a significant portion of UNITAD‘s funding as one of the major donors. Information such as meta data provided to UNITAD by cellular providers has been successfully utilised to prosecute repatriated foreign terrorist fighters in Europe on multiple occasions.

 

Why Austria should join Germany in the support of the UN mission to Iraq

Against this backdrop, the Austrian government should fulfill its 2020 obligations, since it has chosen to devote funding and resources to the creation of a special tribunal for ISIL members. While a centralised tribunal is unlikely in the near future due to the above outlined factors, Austria should contribute financially and with expertise to UNITAD’s activities in Iraq. Furthermore, Austria should support the critical work of civil society organisations in Iraq in gathering and archiving evidence, as this evidence can be admitted formally to international procedures, too.

History has shown that Austria is capable of doing this. After the horrifying conflicts in the Balkans in the 1990s, Austria was able to provide expertise and seconded judges to the International Criminal Tribunal for the former Yugoslavia (ICTY). Moreover, Austria dispatched prosecutors and investigators to Kosovo for onsite investigations.

The recent case of the Syrian Arab Army General Khaled al-Halabi has exposed the legal barriers and the lack of political will in Austria to prosecute individuals on the grounds of universal jurisdiction. Nevertheless, there are a number of steps that the Austrian government could follow to assist the victims of ISIL’s atrocities to maintain Austria’s position as a supporter of international criminal justice. It must support the innovative mechanism that provides at least some justice to the victims of grave violations of international humanitarian law, war crimes and genocide in Syria and Iraq.

So far, it is still realistic that the Austrian government decides to contribute financially. While it is already funding a similar mechanism that is investigating atrocities conducted by ISIL and the Syrian government in Syria, it should specifically address the Yazidi genocide and support UNITAD, too.

 

The Polis Blog serves as a platform at the disposal of Polis180’s & OpenTTN’s members. Published comments express solely the authors’ opinions and shall not be confounded with the opinions of the editors or of Polis180.

Image via pixabay 

 

Gabriel studied Oriental and Arabic Studies at the Institute for Oriental Studies in Vienna and is currently completing a Masters in Arab World Studies. He is particularly interested in politics and journalism in the Middle East with a focus on Iraq.

Julius Co-President of Ponto studied history and political science in Vienna as well as EU and international law in Leiden. He specialised in sanctions policy, armed conflicts and the Middle East. In his free time, he is often climbing and ski touring in the mountains.

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