Draft Statute of Special Court for ISIS Crimes in KRI. This appears to be timed with the UNITAD report on ISIS crimes in Iraq, issued on 10 May, and originally mandated by the UN in September 2017. It concluded that they now had ‘clear and compelling evidence’ to prove that ISIS has committed genocide against the Yazidis in the Mount Sinjar area, hardly an eye-opening conclusion. Although the mandate covers Iraq and the Levant, which includes Syria, the focus has been exclusively on Iraq.ANES (Rojava, NE Syria) has announced that it will be prosecuting foreign Daesh fighters as calls to the international community to take responsibility for their fighters or to support its attempts to bring them to justice have failed. Immediately afterwards Iraqi Kurdistan (KRI) announced that it was setting up a special court for ISIS trials and produced a
What is striking is the difference in the response of the international community to ISIS war crimes in Iraq and Syria although the ‘Caliphate’ stretched across the border to occupy vast chunks of both countries. Funds have been poured into KRI as part of post-ISIS stabilisation measures while Rojava has been neglected.
It defies understanding given that the international community is avowedly dedicated to a flourishing and humane democratic system everywhere and AANES has provided exactly that. Is AANES being neglected because it has no standing as a sovereign nation? Or because of its links to PKK controversially designated a terrorist organisation by some countries? All this did not prevent the US and European Coalition from providing material and logistical support to the SDF’s war effort against ISIS. Could it be that the UN does not wish to be seen to be supporting Assad, a pariah dictator, who is still in power despite all the efforts to dislodge him? Whatever the reason, it does not fit with the UK foreign office’s stated aim that the UK, as part of a Global Coalition of 83 countries against Daesh, believes that, ‘Degrading and destroying this terrorist group and their poisonous ideology is vital for our own national security.’
If that is true, then it makes no sense at all to ignore fighters captured in the other half of the caliphate, in Syria, where the AANES administration recognises that ISIS ideology is a threat and that weakening it is key to global security. There is no interest in deradicalisation in KRI, only death sentences and imprisonment, as I reported earlier. What was seriously lacking in the KRI prosecution of ISIS fighters was evidence, tying individuals to their crimes, which needs time and resources, and is also a significant issue in Rojava.
This is where the UNITAD investigation has proved so useful. It was well-funded and resourced with the best digital technology. It enabled them to uncover individual criminal liability through the discovery of important ISIS papers such as a payroll of ISIS operatives with their full names and monthly salaries. Such evidence is invaluable when many ISIS members claim to have been involved in back ‘office’ work and reject any allegations of battlefield brutality.
They were even able to use call data records, from a fateful day in August 2014 when the Yazidi community was rounded up in a school hall prior to the massacre of their men, to identify the ISIS perpetrators. As ISIS had confiscated the phones of the Yazidis, their call activity ceased so the remaining call activity could be identified as originating from ISIS fighters.
In the video presentation, Karim Khan, head of the UNITAD investigation concludes with a resounding call that ‘It is our collective responsibility to ensure that the evidence collected is put before national courts to prosecute those most responsible.’ So the KRI government has responded with its proposal for ISIS courts which lists a series of crimes which the court will investigate. The only advance on the previous regime as a result of the UNITAD evidence gathering exercise is that trials will be more evidence based. Those found guilty will be sentenced to capital punishment or life imprisonment. How does this square with the official position of the UN as reflected in this statement by António Guterres, UN Secretary-General that, “The death penalty has no place in the 21st century”? A UN body is prepared to co-operate with a government that supports the death penalty but not with Rojava which shares UN values on capital punishment? Rojava has asked for a meeting with UNITAD which is yet to materialise.
Rima Berakat, Co-Chair of the Justice Council, the overarching legal body in AANES, stated that they have never and would never return Iraqi ISIS prisoners to Iraq because it does not support the death penalty. It is a principled stand, in the most difficult of circumstances, which the West would do well to learn from. There have been persistent news reports of Rojava having returned ISIS fighters to Iraq. Berakat denies that. A few ISIS fighters, captured during the Deir-Ezzor operation were sent back to Iraq by the Coalition, a decision in which Rojava had no power to intervene. Other Iraqi nationals who were sent back were refugees from Iraq who wanted to return home were mistakenly reported to be ISIS fighters.
UNITAD has also provided psycho-social support to the survivors and families through their witness protection schemes in KRI, the kind of expertise that Rojava is crying out for. The UNITAD exclusive focus on Iraq, when it is a story of two halves, highlights the position of Rojava as the outcast. The UK position has been equally hypocritical. As I pointed out in my earlier article, the Foreign Office would not address the obvious question: if the security of the UK is a priority then why not support a struggling, under-resourced administration such as Rojava in their deradicalisation programme which everybody accepts is a necessary precondition for security?