Name It While You Shame It: An Assessment of Iraq’s Legal Response to Da’esh Crimes.

Abstract

Since Da’esh’ takeover of Mosul in 2014, discussions emerged both domestically and internationally on the legal framework within which affiliates of the terrorist group should be prosecuted for their perpetrated atrocities. By the time the UNITAD mechanism to promote accountability for crimes committed by the Islamic State in Iraq and the Levant (Da’esh) was established in 2017, the Iraqi judiciary has processed, and is continuously processing the prosecution of thousands of affiliated perpetrators, both nationals and foreign fighters of Da’esh. Despite horrendous crimes committed by the terrorist group credibly amount to core international crimes, perpetrators are nevertheless prosecuted mainly on charges of terrorism, pursuant to ordinary criminal legislations. This paper assesses the legal and judicial response to Da’esh’s crimes committed on Iraq’s territory. The first part studies the nature of crimes committed by Da’esh, establishing that they amount to core international crimes and violations of Jus cogens norms of international law. Pursuantly, it situates Iraq’s legal obligations under international law. The second part examines the capacity of Iraq’s legislative framework to prosecute crimes perpetrated by Da’esh, thus identifying its deficiency to prosecute international crimes. It essentially problematizes Iraq’s prosecution of international crimes as ordinary crimes and exposes the significance of prosecuting atrocities committed by Da’esh in a comprehensive transitional justice context. It purports to argue that Iraq’s refraining from naming the crimes committed by Da’esh as appropriate and shaming them accordingly is enduringly detrimental to the Iraqi judiciary, and to the evolution of national and international criminal law and jurisprudence. The last part examines the prospects of post-Da’esh justice framework within the Iraqi legal system, along with the support of UNITAD and in accordance with international criminal law and transitional justice necessities. If carefully established and engineered, international investigative mechanisms assisting national prosecutions of international crimes could be the new norm of adequate responses to international crimes. The paper therefore proposes a legal framework pursuant to which Iraq could assume its international legal responsibility of prosecuting international crimes in national courts, thus leading a model of national response to international crimes, with the support of UN mechanisms.