ISIL membershave been committing various crimes and bombings in Iraq, and various caseshave been reported by Iraq and in the media. As part of ISIL crimes, ISILseized control of the city Mosul, a city rich in cash and gold in 2014. However,in 2017, the Iraqi Prime Minister declared that Iraqi forces had retaken Mosul backfrom ISIL. While Iraqi forces remain in progress in recapturing ISIL controlledterritory, Iraq has recently requested assistance from the United Nations withregards to the investigation of crimes committed by ISIL1.
The purpose of the investigation needed is to support Iraqi domestic effort tohold ISIL accountable for their criminal actions2.Thus, theSecurity Council of the United Nations in its 8052nd meeting on 21 September 2017has adopted a resolution requesting the UN Secretary-General to establish an investigatorybody to be headed by a Special Adviser3.The role of the Team is to support domestic efforts to hold ISIL accountablethrough collecting, preserving, and storing evidence of acts that may amount to(1) war crimes; (2) crimes against humanity; (3) genocide; (4) atrocity crimes;and (5) to work with survivors in a manner consistent with relevant nationallaws in Iraq. While operating with full respect to Iraq’s sovereignty andjurisdiction over the crimes committed on its territory. The mandate is toensure the broadest possible use of national courts, and for investigations tobe carried out by the Iraqi authorities or by authorities in third countries attheir request.
Whereas,. In addition, the Security Council decided that theUN Secretary-General should establish a trust fund to receive voluntary contributionsto implement the Resolution, and States to contribute by monetary means or by services.Based on the said resolution, the Security Councilholds the right to review the mandate carried out by the investigatory teamafter a period of two (2) years which may be extended upon a request from thegovernment of Iraq. However, there are no information available on whether thefund has been established, and the framework of which the Security Council hasthe right to review the investigatory team’s mandate.Unfortunately, as reported by the Human RightsWatch4,the Iraqi government faces challenges with regards to due process and fairtrial standards. Iraq is relying on counterterrorism courts to prosecute allISIL suspects mainly on the charge of membership in ISIS with no distinctionmade for the severity of the charges.
ISIS suspects have been identified basedon wanted lists and accusations by community members with no further evidencewhich may result to misidentification and detention of non-affiliated membersto ISIL. Iraqi courts allows for death penalty for ISIL suspects, and the UnitedNations policy does not support or assist processes that could lead to thedeath penalty. Therefore, if the Iraqi government is unable to carry out the prosecutionof ISIL suspects based on evidence, due process and fair trial while suspendingthe death penalty, the United Nations may not be able to support. Nonetheless, Iraq is not a member of theInternational Criminal Court (ICC) which means that the international communitycannot examine the abuses made by the Iraqi’s security forces. As a result, Iraq’sposition to accomplish the object of the investigatory team might be weakened asthe United Nations have little to work with given Iraq’s position toward the deathpenalty.