Foreign Terrorist Fighters and the UN Investigative Team to Support Domestic Efforts to Hold ISIS Accountable for War Crimes, Crimes Against Humanity and Genocide Committed in Iraq: Building a Bridge that Should Be Used

Montserrat Abad Castelos

doi:10.17561/tahrj.v16.6302

Abstract

After examining the United Nations Security Council (UNSC) resolutions referred to the foreign fighters who joined the ranks of ISIS in Iraq and Syria andthe UN Investigative Team to support domestic efforts to hold ISIS accountable for war crimes, crimes against humanity and genocide committed in Iraq (UNITAD or the Investigative Team) this article brings both contents together in order to ascertain whether there may be gaps or problems which should be addressed, since both developments were prompted by the UNSC. It is explored whether there may be certain inconsistencies, such as the one relating to the emphasis placed on different crimes, depending on the resolutions in question. Thus, those related to FTFs focus on terrorism crimes, while those related to UNITAD refer to atrocity crimes. Hereinafter the action and evolution of UNITAD is examined, in order to determine whether it might be helpful to overcome some existing barriers and avoid impunity for atrocity crimes. It will be concluded that UNITAD may provide substantial support, not only in relation to trials in Iraq, but also in third States, by providing useful tools or evidence to prosecute FTFs. Seizing this opportunity will require further action, which will be crucial to promote accountability and justice.

Highlights

After examining the United Nations Security Council (UNSC) resolutions referred to the foreign fighters who joined the ranks of ISIS in Iraq and Syria and to the UN Investigative Team to support domestic efforts to hold ISIS accountable for war crimes, crimes against humanity and genocide committed in Iraq (UNITAD or the Investigative Team), this article brings both contents together in order to ascertain whether there may be gaps or problems which should be addressed, since both developments were prompted by the UNSC
Foreign Terrorist Fighters and the UN Investigative Team to support domestic efforts to hold ISIS accountable for war crimes, crimes against humanity and genocide committed in Iraq rights such as religious freedom in the conquered territories were approved under the Empire of Cyrus the Great in the 6th century BC2
In view of the above, the starting points of this article are, on the one hand, the analysis of the phenomenon of FTFs and, on the other hand, the examination of the UN Investigative Team to support domestic efforts to hold ISIS accountable for war crimes, crimes against humanity and genocide committed in Iraq

Summary

Introduction

Following Resolution 2178, the UNSC Counter-Terrorism Committee identified a series of Guiding Principles on FTFs at a special meeting held in Madrid, in July 2015, which were subsequently adopted by the Security Council in December 2015 (Madrid Guiding Principles)16 These 35 guiding principles represent a soft law tool to assist Member States in ensuring compliance with Resolution 2178 and stopping the flow of FTFs. The application of measures based on this UNSC Resolution and these principles, together with military action against Daesh in Iraq and Syria, can be considered conditioning factors for the interruption of the flow of FTFs to these countries (Analytical Support and Sanctions Monitoring Team concerning ISIS, Al-Qaida and associated individuals and entities, 2017 and 2018). Once more, when reference is made to the need for States to ‘fully comply’ with their ‘obligations’ relating to the extradition and prosecution ‘of terrorists’, there is not one single generic mention of atrocity crimes, but instead the explicit reference is reduced to ‘their obligations under international counter-terrorism conventions to which they are parties’

First Approach to Unitad

The background regarding Justice

Conclusions