The Iraq Investigative Team and Prospects for Justice for the Yazidi Genocide

Abstract

The Security Council recently authorized the creation of a new accountability mechanism: an independent, impartial Investigative Team to collect and preserve evidence of the international crimes committed by the Islamic State in Iraq and the Levant (ISIL) in Iraq with an eye towards supporting domestic prosecutorial efforts. Although charged with investigating all atrocity crimes committed by ISIL members, the commission of what many experts consider to be a genocide against the Yazidi people emerged as one of the central motivations for this new and unprecedented initiative. And yet, the proposal has been greeted with some scepticism and has not garnered the full-throated support of many elements of the international community who would ordinarily be advocates for such an effort. For one, observers have noted that the singular focus on the crimes committed by ISIL — as heinous and deserving of censure as they are — overlooks crimes committed by other armed groups involved in the conflict. Further, Iraq’s weak judicial system and the central government’s insistence on employing the death penalty in any ISIL trial has prevented many abolitionist states from fully backing the measure. This issue prevented the finalization of the mechanism’s Terms of Reference, which are necessary for it to begin work. Although the Yazidi people are not monolithic when it comes to their preferences for justice, glaring limitations in the Iraqi legal framework, both substantive and procedural, may not produce results that are acceptable to Yazidi victims’ groups. In particular, the Iraqi Penal Code does not incorporate most international crimes and its provisions on sexual violence are problematic. This outcome, however, is not inevitable if local authorities are amenable to proposals for legal reform that the Team’s experts will inevitably propose as part of their capacity-building mandate. Against the backdrop of a complex and ever-shifting political context, this article explores the potential for the Team, notwithstanding its inherent limitations, to advance prospects for justice for the Yazidi people.