This series of special reports examines the struggles and path the survivors of ISIS — particularly minority groups in the Nineveh Plains and Shingal — have taken in their quest for justice after the extremist group rapidly controlled large swathes of territory in northern Iraq in 2014. Critical questions were asked: What do survivors want? What are they doing? What is and can be done at the community, governmental and international levels?
"There is still not one ISIS militant who has faced trial for international crimes anywhere in the world,” human rights lawyer Amal Clooney said last month, capturing global attention when she stood in front of the United Nations and asked why nothing was being done by the international community Iraq or the UN to investigate ISIS crimes.
On the ground in the Kurdistan Region, however, guided by international experts, locals are quietly working to begin trials of ISIS militants. In coordination with the Kurdistan Regional Government (KRG), they are in the process of establishing a special tribunal in Iraq soil to prosecute ISIS militants under Iraqi law, bringing long-sought justice to victims where the crimes took place.
Establishing a special tribunal under Iraqi law in the Kurdistan Region offers a more realistic alternative to the International Criminal Court (ICC), something that Yezidi groups Kurdistan authorities pushed for, argued Bill Wiley, executive director of the non-profit Commission for International Justice and Accountability (CIJA).
As Wiley points out, the ICC has no jurisdiction in Iraq and that is not likely to change. Iraq joining the ICC would mean the actions of its own government forces as well as that of the Peshmerga will most likely be investigated too.
“So, it’s a question of, is the polity across Iraq ready for that?” asked Wiley. “My guess would be that it may not be.”
CIJA’s suggestion, embraced by Kurdistan authorities, is to host a court in Iraq.
CIJA is a criminal investigative body. It established its ISIS team in January 2014 when the extremist group was still quite small. In February 2015, it signed a Memorandum of Understanding with the Council of Ministers of the KRG to investigate ISIS crimes.
The organization chose to first establish relations with Erbil, closer to the sites of many ISIS crimes, rather than Baghdad, for security and logistical reasons, Wiley explained in a recent interview.
They have also developed very good relations with Kurdish ministries and, in turn, KRG authorities are now helping CIJA to build connections with Baghdad.
A special tribunal tasked to prosecute ISIS suspects, as proposed by CIJA, could be established by implementing legislation from the Kurdistan Region parliament that would enact some minor changes to Iraqi criminal law, adding a small amount of international criminal law, Bill Wiley explained.
“All your basics are there - murder, torture, a range of sexual offenses. Some offenses are not there - the crime of enforced disappearance, for example, is not there,” he said. Genocide, also, would likely be added.
He would also recommend adding something called “commander responsibility.”
“This is the perpetration of an offense by people obviously in positions of command or political authority. It’s the commission of an offense by omission,” Wiley said.
Under this provision, persons in positions of authority can be tried for crimes committed by their subordinates, regardless of whether or not the commander issued any orders with respect to the crimes or even knew about the crimes being committed.
For international criminal investigators, Wiley explained, this the easiest mode of liability to establish in law. It is indirect intent, “somewhere between negligence and recklessness.”
Piecing together ISIS’ command structure makes placing culpability for the group’s crimes on its commanders becomes a straightforward process.
‘Commander responsibility’ exists in Iraqi military law, but not criminal.
The implementing legislation would also have to prohibit the special tribunal from handing down the death penalty. Capital punishment is a red line for Canada and EU nations, CIJA’s primary funders.
There is already a moratorium on the death penalty in the Kurdistan Region so authorities there are open to enacting such a provision in the legislation. This is one advantage to establishing the special tribunal in the Kurdistan Region as Baghdad authorities are less likely to concede on the capital punishment issue, noted Wiley.
Wiley served as a legal advisor to the Iraqi High Tribunal that tried Saddam Hussein.
One other hurdle that has to be overcome before the special tribunal can begin its work is related to requirements imposed by western nations before they could open their wallets and fund the court. Donors want a Baghdad buy-in.
“Western support is predicated on it being a pan-Iraqi initiative,” said Wiley.
The solution to this problem came from Kurdistan authorities: win the support of the chief justice in Baghdad and have Iraqi judges, law clerks, and prosecutors participate in the special tribunal.
Rudaw reached out to Baghdad multiple times to comment on the prosecution and judicial processes for ISIS-linked atrocities, but the Iraqi authorities contacted showed no interest in speaking.
For the victims, such a tribunal is the first step on a long road to justice. Re-establishing trust between communities will be of particular importance for the court to carry out its work on the land where the crimes took place, believes Khider Domle, a Yezidi activist, researcher, and author.
“If the justice happens here, it would be the base of reconciliation, peace building, and co-existing. Because people they lost a lot. If they see justice here goes the right way, with transparency, they will feel ‘This is our home, there are no second class citizens. Everyone is equal under justice,’” he said.
Perpetrators paying for the crimes they committed is an important aspect of peace-building after conflict. Colombia can serve as an example, explained Dr. Antonio Barrios Oveido, of the Universidad Latina in Costa Rica, at a conference on genocide hosted this month by the International University of Erbil.
A draft peace agreement with the main rebel group in Colombia, the FARC, was rejected by the population in a referendum because the people objected to the rebels pardoned without answering for their crimes.
In the second draft, President Juan Manuel Santos, who won a Nobel Peace Prize in 2016 for his efforts to end the decades of conflict in Colombia, included minimum sentences of between five and ten years for those who committed crimes, afraid that the peace process would not continue if the provision was not included.
CIJA has two cases prepared, related to ISIS operations in Shingal (Sinjar) in August 2014 when the terrorist group committed a range of crimes against the Yezidi population, including genocide. They have two high-level perpetrators identified on a range of offenses, including murder, persecution, sexual slavery, and a range of sexual offenses.
Bill Wiley is optimistic that they can be tried in the special tribunal, giving Iraqis and Kurdistanis the power to bring justice to their own people. The investigative and judicial capacities are there in the Kurdistan Region, he said. They just need some international assistance because of the complex nature of ISIS and inexperience in taking on such a huge case.
He argues that there are symbolic benefits to convicting ISIS militants for crimes like murder, rape, and sexual enslavement. This marks ISIS as a criminal syndicate, he said, and not a caliphate dedicated to serving the prophet. He believes this could serve as an effective deterrent for recruitment, rather than a terror conviction since the terrorist label can be considered a “badge of honour” for some.
ISIS militants strongly object to being accused of rape of Yezidi girls and women - they justify their brutality under their interpretation of Islam. They are also quick to dismiss any western condemnation of their actions.
Amal Clooney told the UN that was time ISIS militants were tried for their crimes. And for the time being, there is “no other option” for retributive justice, said Wiley. If we wait for the ICC, he argued, “We’re going to have nothing. And IS has been running riot for over three years now.”
This is Part VI in a Rudaw English series of special reports on what is being done to document ISIS atrocities and achieve justice for survivors. The authors thank all at Rudaw who contributed including Zhelwan Zeyad and Salim Ibrahim for their editing and translations.