Ten years after the Yazidi genocide, has Iraq allowed Islamic State to evade international justice?

This summer marks ten years since the Islamic State declared itself a “caliphate” and launched a brutal campaign of violence in Iraq, including a genocidal assault on the Yazidi minority in August 2014.

More than six years since the territorial defeat of the Islamic State in Iraq, only nine members of the terrorist group have been convicted of international atrocity crimes for their roles there.

Not one of these prosecutions has occurred inside Iraq.

Despite this major deficit in criminal accountability, the United Nations (UN) mission to collect and preserve evidence of crimes committed by Islamic State in Iraq is being forced to shut prematurely this September before the completion of its mandate.

Only three months away and with no plan yet in place, survivors’ networks and international human rights lawyers fear loss of access to millions of pieces of evidence critical to the pursuit of justice.

"At its peak, Islamic State attracted over 40,000 people from more than 80 countries"

They say the closure of the mission is part of a larger failure of the international community to ensure holistic justice for some of the gravest crimes in recent history.

Natia Navrouzov has been engaged in evidence-gathering and survivor advocacy since 2015. A Yazidi from Georgia, she now heads the prominent organisation Yazda which formed in the weeks following attacks on the Yazidi homeland, Sinjar.

Yazda was one of many civil society groups that advocated for the creation of the UN investigation mission.

“Seeing it closed so abruptly and without proper communication or plan is distressing to the communities we serve,” she said, during a seminar last month bringing together NGOs, lawyers and human rights bodies concerned about the shutdown.  

Invited by the Iraqi government in 2017 and stationed in Baghdad, the UN mission — UN Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL (UNITAD) — aimed to help prepare the relevant Iraqi authorities as well as those in third countries to investigate and prosecute Islamic State crimes under international law.

Along with capacity building, assistance in the exhumation of mass grave sites and identification of remains, UNITAD has been amassing evidence, reaching 40 terabytes of documentary, forensic and digital materials by the spring of 2024.

But the Iraqi government has now withdrawn its invitation, reportedly following a souring of relations, according to Reuters.

“We are now racing against time to organise a plan for the orderly closure of UNITAD,” said Ana Peyró Llopis, the new head of the mission, as she briefed NGOs during the May seminar.  

A burning question is what will happen to the evidence it has collected.

Although the intention of the mission was to support international criminal trials in Iraq, concerns over fair trial rights and the use of the death penalty, which violate UN rules, have prevented much of the materials collected by UNITAD from being handed over. Many survivors have also not consented for their testimonies to be shared with Iraqi authorities.

Furthermore, Iraq has not passed legislation to prosecute international crimes on its territory.

This impasse means there is a chance much of the evidence could simply be archived, rendering it unusable in criminal proceedings.

“The risk is that [the evidence] ends up, literally, in a basement in New York,” Navrouzov told The New Arab.

Advocates anxiously await a decision by the Security Council on the proposed creation of an “active repository” within the UN where the evidence could be securely preserved and remain accessible to third states.

Beyond Iraq, loss of the evidence would impede trials in foreign courts, thus far the only jurisdictions in which UNITAD’s work has been used to prosecute international crimes like genocide, war crimes and crimes against humanity.

UNITAD has received 246 requests for evidence from 20 third states and has supported 15 cases that led to convictions, mainly in Europe.

Germany alone has convicted eight Islamic State members for international crimes against the Yazidis.

“German prosecutors [have] coordinated closely with UNITAD to gather evidence for the successful prosecution of ISIS [Islamic State] members, including for genocide,” said Nadine Reiner, a lawyer with the office of Amal Clooney, who was involved in the first case in the world to convict an Islamic State member of genocide in 2021.

“From our conversations with national prosecutors, we know they are particularly concerned about their access to witnesses and coordination to get witness testimony,” she told The New Arab.

Loss of evidence threatens Islamic State prosecutions in Europe

Just this January, prosecutors in Lisbon succeeded in handing down a conviction of war crimes to an Iraqi Islamic State member seeking safe haven in Europe. The conviction, a first for Portugal, was achieved through collaboration with UNITAD and the Iraqi judiciary to identify and facilitate the participation of 13 witnesses in Iraq.

Trials for international crimes are upcoming in the Netherlands, Sweden, Germany and France, and investigations are ongoing in the UK. As more Islamic State fighters return home from camps in Syria, these prosecutions were only expected to increase.

 "Not one Islamic State member in Syria's detention system has been held accountable for crimes under international law – including war crimes, crimes against humanity and genocide"

Despite the significance of convictions in Europe, these are a stop-gap measure for a broader, coordinated mechanism and justice taking place in Iraq, survivors’ groups say.

“It’s kind of a drop in the sea of all these atrocity crimes,” said Bojan Gavrilovic, a lawyer at the Jiyan Foundation for Human Rights, to The New Arab. “This cannot really meet the justice needs of the people and address the crimes that were really systematic and massive.”

The Jiyan Foundation is working to support the establishment of survivor-centred mechanisms for international criminal trials to take place in Iraq, the site where the crimes happened, and the home still to several hundred thousand Yazidis, most of whom remain displaced.

“We are convinced that many other countries are working on criminal prosecution, however, none of this will give the same feeling as justice taking place in our own country, for survivors and all those affected,” echoed Hassan Jameel, a lawyer working with the Coalition for Just Reparations, an alliance of more than 30 NGOs representing not only Yazidis but also other religious minorities, Sunnis and Shias targeted by Islamic State.

But there are major obstacles to this.

During the war on Islamic State and following the liberation of territory in 2017, tens of thousands of fighters were captured and imprisoned in Iraq. By 2019, Iraq’s judiciary had already processed some 20,000 terrorism-related cases. Many have been sentenced on charges of membership in a terrorist group, charges survivors say do not capture the gravity and extent of the crimes committed.

These trials have been marred by allegations of serious human rights violations, including routine use of “torture-tainted ‘confessions’.”

Last winter, federal Iraq resumed mass executions. Some 8,000 prisoners are on death row, according to human rights groups.

“There are many issues there and this is not something that we are supportive of,” said Gavrilovic. Furthermore, the current process does not allow for meaningful participation of survivors. “They don’t even know the trials are happening,” he said.

Has the international community failed the Yazidis?

Another roadblock is the lack of a legal framework in Iraq to prosecute international crimes. A draft law to address this is languishing in government offices.

While the Kurdistan Regional Government has pushed for the creation of a specialised tribunal for Islamic State crimes, in 2021 a proposal to establish such a court in the Kurdistan region was declared unconstitutional by the Iraqi Federal Supreme Court.

The regional government also created an evidence-gathering body in 2014 to build cases for international crimes, but thus far their evidence can mainly not be used in Iraq. They are in the process of making agreements with several third states to directly share evidence once UNITAD has gone.

Human rights lawyers and survivors’ groups say the closure of UNITAD is part of a broader failure not only of Iraq but of the international community to ensure justice for victims of the global terror group.

At its peak, Islamic State attracted over 40,000 people from more than 80 countries.

Today, some 56,000 men, women and children with perceived affiliation to Islamic State are being held in detention facilities and camps in northeast Syria, according to recent research by Amnesty International.  

Along with grave abuses towards these populations, Amnesty says trials being carried out by the US-backed SDF and affiliated authorities rely on forced confessions to convict suspects for terrorism membership but not for individual crimes committed.

“Just like in Iraq, thousands of people have been tried on vague counter-terrorism charges, such as affiliation or membership,” said Nicolette Waldman, an advisor with Amnesty. “And just like in Iraq, not one person in this detention system has been held accountable for crimes under international law – including war crimes, crimes against humanity and genocide.” 

Countries whose nationals fought for Islamic State have been slow to bring them home. Those who are repatriated are mainly women and their children.

With the exception of Germany, returning Islamic State members are often not charged with crimes committed while abroad, but only for joining a foreign terror organisation.

The absence of a holistic and coordinated international response represents “a colossal failure of the international community and the international justice system,” said Amnesty’s Waldman. 

Proposals put forward by NGOs under the Coalition for Just Reparations and other advocates include a hybrid tribunal in Iraq in partnership with the UN, a mechanism through the UN General Assembly similar to what has been established for crimes in Syria, and other ideas.

“There are examples that exist, so it’s not too difficult now to learn from other courts,” said Silke Studzinsky, a German legal expert who represented victims at the Khmer Rouge Tribunal and more recently worked with the Kurdistan evidence-gathering body. But international political interest is very low.

“I would say since the war started in Ukraine, this [the Yazidi genocide] has been completely forgotten.”

“It’s really a pity,” she said, likening the tens of thousands of Islamic State members and their children languishing in camps and prisons, without meaningful justice or rehabilitation, to a “ticking bomb.”

Tara Brian is a freelance journalist. She previously worked as a researcher with the United Nations' migration agency. 

Follow her on Twitter: @trbrian11