TSC Issue Brief Bringing Terrorists to Justice June 2021 Final

ISSUE BRIEF

BRINGING TERRORISTS TO JUSTICE: Prosecutng ISIL War Crimes and Terrorism

JUNE 2021

thesoufancenter.org

KEY FINDINGS

• UNITAD has found “clear and convincing accountability for terrorist conduct, there evidence” that the Islamic State in Iraq and may be a number of advantages to using the Levant (ISIL) atacks against the Yazidi the law on “core internatonal crimes” community in Sinjar consttuted genocide; rather than, or in addition to, counterterrorism additonal details regarding war crimes and law. incitement to genocide in connecton with mass executons at Tikrit Air Academy; and • At the global level, accountability for evidence of the repeated deployment of confict-related sexual violence remains chemical weapons by the terrorist group. woefully inadequate. The cumulatve approach may also bring a greater • Globally, prosecutons for ofenses likelihood of accountability for sexual and commited by ISIL have faced a number of gender-based crimes commited in the obstacles. These include the difculty of context of terrorism. obtaining evidence regarding the conduct of persons in confict zones; practcal • The work of UNITAD, and some innovatve challenges in collectng, processing, and solutons it has developed, may prove storing digital evidence; obtaining it when benefcial to domestc prosecutors within it is held outside the prosecutors’ Iraq and beyond in a number of ways. jurisdicton; how to access evidence when These include the volume and range of it is encrypted on electronic devices formerly potental evidence collected for states; the used by terrorist enttes; and how to use of advanced technology to help take analyze informaton that is extracted given forward prosecutons under complex and the volume of data that can be involved. challenging circumstances; and the innovatve use of technologies to enable • In seeking to address the challenges faced remote interacton with witnesses and by natonal authorites in ensuring victms.

1 BRINGING TERRORISTS TO JUSTICE: PROSECUTING ISIL WAR CRIMES AND TERRORISM

• Recommendatons include: states should should consider cumulatve prosecutons, contnue to support the work of UNITAD where appropriate, using both and accelerate the pace of prosecutons; counterterrorism law and the law on core eforts to work with victms of ISIS crimes internatonal crimes; and there should be should be increased; states should explore greater cooperaton and collaboraton, all relevant legal instruments to ensure that where feasible, between relevant terrorists are brought to justce; states internatonal and UN enttes.

INTRODUCTION

In his fnal briefng to the United Natons review of the UN Global Counterterrorism Security Council in May 2021, the Special Strategy, the UN General Assembly Adviser and Head of the United Natons framework that provides normatve and Investgatve Team to Promote Accountability policy guidance to all states and approximately for Crimes Commited by Da’esh/ISIL forty UN agencies, funds, and programs. (UNITAD), Karim A.A. Khan QC, highlighted September will mark the twenteth their fnding of “clear and convincing anniversary of the 9/11 atacks in the United evidence” that ISIL atacks against the Yazidi States, which should trigger refecton by all community in Sinjar consttuted genocide; stakeholders on what has and has not been additonal details regarding war crimes and achieved through multilateral counterterrorism incitement to genocide in connecton with since then. By the end of December, Security mass executons at Tikrit Air Academy; and Council members will need to negotate the evidence of the repeated deployment of renewal of two mandates for key UN chemical weapons by the terrorist group.1 counterterrorism bodies: the Counter- Much remains to be done to turn these Terrorism Executve Directorate (CTED) and assertons by investgators into convictons, the Al-Qaida/ISIL “1267” Sanctons following fair trial, of those responsible. But Monitoring Team, as well as the mandate of these are undoubtedly significant developments the Ombudsperson, through whom appeals for accountability. regarding the 1267 sanctons mechanism can be made. All of this is occurring against the While welcoming these landmark fndings, it backdrop of the increasing risk of violence is useful to also take a step back and consider and terrorism posed by individuals and the implicatons of the work accomplished by groups motvated by extreme right-wing UNITAD for broader internatonal eforts to ideologies and debates about whether the hold terrorists accountable for their crimes. existing international framework is adequately In the spring of 2021, diplomats and experts equipped to address this development.2 at the UN focused on negotatng the biennial

1 “Special Adviser Khan Briefs Security Council on UNITAD Investgatons.” United Natons Investgatve Team to Promote Accountability for Crimes Commited by Da'esh/ISIL, May 10, 2021. htps://www.unitad.un.org/news/ special-adviser-khan-briefs-security-council-unitad-investgatons. 2 Blazakis, Jason M., and Naureen Chowdhury Fink. “The Internatonal Far-Right Terrorist Threat Requires a Multlateral Response.” Lawfare, April 4, 2021. htps://www.lawfareblog.com/internatonal-far-right-terrorist- threat-requires-multlateral-response.

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priorites. There are also legal requirements CHALLENGES IN around how that material is then stored, and its subsequent transfer from one state to PROSECUTING TERRORISTS another can be delayed if it goes through formal mutual legal assistance channels (and can raise legal challenges if it does not). Globally, prosecutions for offenses committed Where the material has been classifed by ISIL have faced a number of obstacles.3 because of how and where it was collected One is the difculty in obtaining evidence can create further delays before it can be detailing the conduct of accused persons used at trial.4 following their arrival in confict zones in Iraq and Syria. Ofen, natonal investgators fnd With respect to testmonial material, that the trail of informaton regarding the prosecutors face signifcant challenges in actvites of an individual will dry up following identfying and engaging with witnesses and their entry into these areas, partcularly survivors who remain in Iraq and Syria, many during the tme at which ISIL held territorial of whom are stll in internal displacement control. camps. Even where possible to contact relevant individuals, investgators face a Evidence stemming directly from crime difcult and delicate task in supportng scenes, such as electronic devices seized witnesses to come forward with their from terrorist organizatons, will ofen be accounts in a manner that is sensitve to the essental for a successful prosecuton (or as trauma they have sufered as a result of their leads for additonal investgatons). However, experiences. there are signifcant practcal challenges in ensuring these assets are collected and A further common obstacle relates to digital processed in a manner that allow for their and telecommunicatons evidence: how to onward use in criminal proceedings. State obtain it when it is held by Communicaton actors that are most commonly actve in Service Providers on servers based outside confict zones—the military—are not usually the prosecutors’ jurisdicton; how to access it trained to carry out this task, and doing so when it is encrypted on electronic devices may not ft easily with their operatonal formerly used by terrorist enttes; and how

3 “Resoluton 2396 (2017).” United Natons Security Council, S/RES/2396 (2017). htps://undocs.org/S/RES/ 2396(2017); “2018 Addendum to the 2015 Madrid Guiding Principles.” United Natons Security Council, S/2018/1177, para. 29. htps://undocs.org/en/S/2018/1177. 4 “Abuja Recommendatons on the Collecton, Use and Sharing of Evidence for Purposes of Criminal Prosecuton of Terrorist Suspects.” Global Counterterrorism Forum. htps://www.thegct.org/Portals/1/Documents/ Framework%20Documents/2018/GCTF-Abuja-Recommendatons_ENG.pdf? ver=2018-09-21-122246-523×tamp=1580219129062; See also: “Non-Binding Guiding Principles on Use of Batlefeld Evidence in Civilian Criminal Proceedings.” The Internatonal Insttute for Justce and the Rule of Law. htps://theiij.org/wp-content/uploads/Non-Binding-Guiding- Principles-on-Use-of-Batlefeld-Evidence-EN.pdf.

3 BRINGING TERRORISTS TO JUSTICE: PROSECUTING ISIL WAR CRIMES AND TERRORISM to analyze informaton that is extracted given the volume of data that can be involved.5 UNITAD: CONTRIBUTIONS &

These obstacles to securing reliable evidence INNOVATIONS impede eforts to ensure full accountability for the crimes commited, result in sentences In this context, it is important to consider that do not fully refect the gravity of whether or how the work of UNITAD, and in conduct, and are one factor infuencing some partcular the technological tools it has states’ reluctance to actvely repatriate their developed in support of its actvites, can natonals from Al-Hol and other camps in support internatonal eforts to counter northern Syria. terrorism and bring terrorists to justce.

The connecton may seem obvious: UNITAD was, afer all, established (in response to Iraq’s call for assistance from the

Mosul internatonal community) to investgate Raqqa Sinjar crimes commited in Iraq by ISIL, an entty that has been designated by the UN, regional SYRIA Baghouz enttes, and many states as a terrorist Damascus organizaton and a threat to internatonal IRAQ Baghdad peace and security.6 The UN Security Council resoluton which established UNITAD in 2017 describes ISIL as such, and notes that states that hold ISIL members accountable for their crimes “could assist in countering terrorism and violent extremism that can be conducive to terrorism,” including by stemming Figure 1: Map of Iraq and Syria fnancing and the fow of internatonal recruits to join ISIL7.

However, it does not give UNITAD a mandate to investgate terrorist crimes per se. Instead,

5 “UNODC and Partners Release Practcal Guide for Requestng Electronic Evidence Across Borders.” United Natons: Ofce on Drugs and Crime, February 1, 2019. htps://www.unodc.org/unodc/en/frontpage/2019/January/unodc- and-partners-release-practcal-guide-for-requestng-electronic-evidence-across-boarders.html. 6 Islamic State in Iraq and the Levant (ISIL), also known as Daesh, is internatonally designated as a terrorist group, along with several regional afliates, through the UN’s Al-Qaida and ISIL/Daesh (“1267”) Sanctons List. In the United States, ISIL was initally designated as a Foreign Terrorist Organizaton by the Secretary of State in December 2004 (as “Al-Qaida in Iraq”). Variatons in terminology used include Islamic State (IS), Islamic State in Iraq and Syria (ISIS), and Daesh. While The Soufan Center customarily uses “ISIS,” this Issue Brief instead uses “ISIL” in order to align with terminology used by UNITAD; see: UN Security Council Resoluton 2170 (2014); and “Foreign Terrorist Organizatons - United States Department of State.” U.S. Department of State. htps://www.state.gov/foreign-terrorist-organizatons/. 7 “Resoluton 2379: Threats to internatonal peace and security.” United Natons Security Council, S/RES/2379 (2017). htps://undocs.org/S/RES/2379(2017).

4 BRINGING TERRORISTS TO JUSTICE: PROSECUTING ISIL WAR CRIMES AND TERRORISM

Figure 2: Map of UNITAD Investigation Locations. Source: UNITAD the team’s mandate is to collect evidence of genocide.8 In its third report to the Security genocide, war crimes, and crimes against Council, UNITAD noted “the need for humanity perpetrated by ISIL. The resoluton survivors of ISIL crimes not simply to be seen thus treads a careful line – UNITAD will as victms of terrorism, murder or rape, but operate in the context of counterterrorism to have their sufering recognized as a crime eforts, but its own work is to focus on against their communites, as a crime against evidence of other crimes, rather than a focus the people of Iraq, and for the true scale and on terrorist crimes. Refectng this legal and nature of ISIL criminality to be exposed politcal framework, the briefngs of the through the presentaton of incontrovertble Special Adviser and the six reports he has evidence in fair trials”.9 submited to the Council have not referenced prosecutons for terrorist crimes. There may be politcal benefts to focusing an investgaton into the acts of ISIL on crimes Also notable is that survivors’ representatves other than terrorism, but it is also crucial to (notably Nobel Peace Laureate Nadia Murad) recognize the legal and pract cal have repeatedly called on the internatonal consequences. Many states contnue to community to ensure accountability of ISIL frame the work of UNITAD as part of the for more than terrorism—in partcular, sexual internatonal community’s counterterrorism and gender-based crimes and acts of eforts. At the same tme, its work can seem

8 “Ms. Nadia Murad, Nobel Peace Prize Laureate on Investgatve Team to Promote Accountability for Crimes Commited by Da'esh/ISIL (UNITAD) - Security Council VTC Briefng.” United Natons: UN Web TV, 2021. htp:// webtv.un.org/watch/ms.-nadia-murad-nobel-peace-prize-laureate-on-investgatve-team-to-promote- accountability-for-crimes-commited-by-daeshisil-unitad-security-council-vtc-briefng/6253524716001/?term=. 9 “Third report of the Special Adviser and Head of the United Natons Investgatve Team to Promote Accountability for Crimes Commited by Da’esh/Islamic State in Iraq and the Levant.” UNITAD, S/2019/878 (2019), para. 101. htps://www.undocs.org/en/S/2019/878.

5 BRINGING TERRORISTS TO JUSTICE: PROSECUTING ISIL WAR CRIMES AND TERRORISM insulated from broader UN and Security resolutons which require all states to Council counterterrorism eforts with litle criminalize additonal conduct, including the overlap. This is ofen refected in the way fnancing of terrorism and the travel of states approach the issue at the UN, as two “foreign terrorist fghters.” Counterterrorism very separate fles, processes, and with law has not gone through the same process diferent focal points in diplomatc missions. of clarifcaton and elaboraton by So to what extent might the work of UNITAD internatonal tribunals. provide solutons to many of the challenges in bringing terrorists to justce, despite its In seeking to address the challenges faced by broader mandate? A consideraton of both national authorities in ensuring accountability substantve law and of evidence will help for terrorist conduct, there may be a number highlight several key points. of advantages to using the law on “core internatonal crimes” rather than, or in additon to, counterterrorism law.

THE LEGAL FRAMEWORK: First, focusing on core internatonal crimes avoids defnitonal problems. The absence of LOOKING BEYOND an internatonal defniton of terrorism—or, COUNTERTERRORISM LAW more accurately, the absence of a single all- encompassing defniton of terrorism, since internatonal law does defne and criminalize The law on war crimes, crimes against various methods commonly associated with humanity, and genocide (known as the “core terrorism10—has ofen been discussed at internatonal crimes”) has developed over a length elsewhere. The principle of legality relatvely long period—from 1907 treates requires that an individual can only be that prohibited certain means of warfare, criminally liable for conduct that was supplemented by a series of widely-ratfed criminalized at the tme of commission, and treates adopted in the afermath of World also that criminal law be clear, precise, and War II—and has been clarifed and accessible. UN bodies have highlighted that, elaborated by judgments of the Nuremberg across all states and regions, domestc Tribunal, the Internatonal Criminal Tribunals terrorist ofenses are ofen vaguely framed, for Yugoslavia and for Rwanda, and now the with imprecise terminology and open-ended Internatonal Criminal Court. phrases.11 This can increase the risk of human rights violations and open counterterrorism Counterterrorism law is more nascent. It has laws up to instrumentalizaton in order to been formed through a series of treates violate human rights. Defnitonal issues are which criminalize certain methods (hijacking, far less challenging with respect to war bombing, etc.) associated with terrorism and, crimes, crimes against humanity, and since 2001, a number of Security Council genocide: the material and mental elements

10 UNODC Treates Database. htps://sherloc.unodc.org/cld/v3/sherloc/treates/search.jspx#? mv=treates&c=%7B%22flters%22:%5B%7B%22feldName%22:%22treaty.type_s1%22,%22value%22:%22Internat onal%22%7D,%7B%22feldName%22:%22treaty.topics.topic_s%22,%22value%22:%22Terrorism%22%7D%5D, %22match%22:%22%22,%22startAt%22:20,%22sortngs%22:%22%22%7D. 11 “Global Survey of the Implementaton by Member States of Security Council resoluton 1373 (2001)." UNCTED, S/ 2016/49 (2016), paras. 397, 437. htps://undocs.org/S/2016/49.

6 BRINGING TERRORISTS TO JUSTICE: PROSECUTING ISIL WAR CRIMES AND TERRORISM of those crimes in internatonal law are well- that cause superfuous injury, or targets established, and domestc law defnitons of cultural property or places of worship.14 those crimes tend to be more consistent. Whereas the terrorism legislaton of many states also requires proof of an underlying These points are partcularly relevant to ideological or politcal motvaton, what prosecutons in Iraq, where a revised maters for the purpose of prosecutng war counterterrorism law remains pending and so crimes are the methods used, not the cannot form the basis for prosecuton of ISIL motvatons. crimes that have already taken place. Instead, Iraqi prosecutons of ISIL crimes as acts of Third, it is important to respond to the terrorism would have to be brought on the wishes and needs of communites impacted basis of the 2005 Counter-Terrorism law (Act by the acts of terrorist organizatons. As No. 13 of 2005), which had been subject to refected above, many representatves of critcisms by UN human rights bodies for its communites targeted by ISIL have been clear broad defniton of terrorism.12 Iraq’s in their view that they have not been domestc law on war crimes, crimes against subjected simply to acts of terrorism but to humanity, and genocide also remains crimes that targeted their community as a pending, though the same concerns with whole. Prosecutons for internatonal crimes non-retroactvity do not arise with respect to provide a forum in which the breadth and the core internatonal crimes, so this law depth of such crimes can be fully explored could more easily be applied in relevant and recognized before natonal courts, cases relatng to ISIL.13 strengthening the basis for individual and collectve healing, and laying the groundwork Second, there may be fewer elements to for future steps towards broader reconciliation prove when using the law on war crimes. In a and peace. situaton of armed confict, much of the conduct that is criminalized in treates and Alternatvely, rather than focus on Security Council resolutons on terrorism prosecutons using either counterterrorism would also consttute war crimes: where it law or the law on core internatonal crimes, involves violence that is directed at civilians there is also the possibility of bringing or is disproportonate to the military prosecutons under both to ensure full advantage antcipated, employs weapons accountability. This has already happened in

12 “Concluding observatons on the ffh periodic report of Iraq." Human Rights Commitee, December 3, 2015, CCPR/C/IRQ/CO/5, paras. 9-10. htp://docstore.ohchr.org/SelfServices/FilesHandler.ashx? enc=6QkG1d%2FPPRiCAqhKb7yhsieXFSudRZs%2FX1ZaMqUUOS%2FZBrZ2ONbDPxzcdQn7LCe97KNN%2BL3%2FuJZ0 hfO64b%2BEfYCIlLnreROQ4z%2Fj%2B2tGuKf%2B2%2FrsUOSm6ioTERIZEI13. 13 “Internatonal Covenant on Civil and Politcal Rights.” United Natons General Assembly (1967), Artcle 15(2). htps://treates.un.org/doc/Treates/1976/03/19760323%2006-17%20AM/Ch_IV_04.pdf. 14 McKeever, David. “Internatonal Humanitarian Law and Counter-Terrorism: Fundamental Values, Confictng Obligatons.” Internatonal and Comparatve Law Quarterly 69, no. 1 (2020): 43–78. doi:10.1017/ S0020589319000472.

7 BRINGING TERRORISTS TO JUSTICE: PROSECUTING ISIL WAR CRIMES AND TERRORISM a number of cases in Germany and other and human trafcking has been one of the European countries.15 Prosecutons for enduring characteristcs of ISIL, and survivors’ simple membership in a terrorist group calls for accountability ofen highlight these carries a relatvely light sentence, ofen acts.17 Although resoluton 2331 allows states aggravatng concerns in many countries that to designate terrorist groups and individuals stll-dangerous individuals may be released under the 1267 sanctons regime for the from prison too early. However, cumulatve perpetraton of these crimes, no state has yet prosecutons that include, for example, the put forward a designaton on this basis, or war crime of “outrages upon personal included these crimes as part of a proposed dignity,” pillaging, or the use of children in designaton. In the short term, this acton hostlites16 would carry more appropriate remains an opportunity for Security Council penaltes, thereby addressing both legal and members to highlight the importance of politcal concerns for many governments and recognizing these crimes and holding communites. perpetrators accountable.

The cumulatve approach may also bring a At the global level, however, accountability greater likelihood of accountability for sexual for confict-related sexual violence remains and gender-based crimes. In resolutons 2331 woefully inadequate and may have further (2016) and 2388 (2017), the Security Council deteriorated as a result of the COVID-19 recognized that sexual and gender-based pandemic, which caused further delays in violence (SGBV) and human trafcking can investgatons, pre-trial hearings, and trials.18 form part of the strategic objectves and In principle, such conduct could be ideology of certain terrorist groups and can prosecuted as acts of terrorism: afer all, be used to fnance terrorism; the Security these are violent acts aimed at terrorizing or Council called on states to hold perpetrators intmidatng a populaton and so would fall accountable. The insttuton of sexual slavery within the terrorism laws of many states. In

15 “Cumulatve Prosecuton of Foreign Terrorist Fighters for Core Internatonal Crimes and Terrorism-Related Ofences.” Eurojust, May 2018. htps://www.eurojust.europa.eu/cumulatve-prosecuton-foreign-terrorist-fghters- core-internatonal-crimes-and-terrorism-related. 16 Ibid., 11-12, 16-20. 17 AlSaiedi, Abdulrazzaq, Kevin Coughlin, Muslih Irwani, Waad Ibrahim Khalil, Phuong N Pham, and Patrick Vinck. “Never Forget – Views on Peace and Justce Within Confict-Afected Communites in Northern Iraq.” Harvard Humanitarian Initatve, June 2020. htps://hhi.harvard.edu/fles/humanitarianinitatve/fles/ neverforget_eng3.pdf?m=1604610598. 18 “Annual Report 2020.” United Natons Team of Experts Rule of Law/Sexual Violence in Confict, 18. htps:// www.un.org/sexualviolenceinconfict/wp-content/uploads/2021/05/annualreportoesmall-1.pdf.

8 BRINGING TERRORISTS TO JUSTICE: PROSECUTING ISIL WAR CRIMES AND TERRORISM practce, however, this rarely happens—not how to obtain evidence of sexual and gender- just with respect to the acts of ISIL but also based crimes in communites in which stgma those of Boko Haram19 and Al-Shabaab.20 may prevent survivors from coming forward. This has led to calls for legislatve acton, at Interviews with survivors are guided by in- both the internatonal and domestc levels, to house psychologists from the Witness remedy this failing. Pending such changes, Protecton and Support Unit. Iraq’s adopton the law on core internatonal crimes ofers a of a Yazidi Female Survivors Law in March greater prospect of successful prosecuton. 2021 has been hailed a landmark in transitonal justce which recognizes crimes Again, the law for these crimes itself is against multple ethnic groups and provides clearer;21 and in practce prosecutons of survivors with concrete support through such conduct as war crimes, crimes against compensaton, land, quotas of public humanity,22 or acts of genocide23 have been employment, and rehabilitatve measures.25 more frequent in both internatonal and domestc courts.24 UNITAD has established a Gender Crimes and Children Unit to focus on such crimes and has developed a strategy on

19 Babington-Ashaye, Adejoke. “Prioritzing Accountability for Sexual Terrorism on the Global Peace and Security Agenda: An Assessment of the Way Forward from Natonal Prosecutons of Sexual Terrorism by Boko Haram to Security Council Decisiveness.” Journal of Human Trafcking, Enslavement and Confict-Related Sexual Violence, 2020. 20 Brouwer, Anne-Marie de, Eefe de Volder, Christophe Paulussen. “Prosecutng the Nexus between Terrorism, Confict-related Sexual Violence and Trafcking in Human Beings before Natonal Legal Mechanisms: Case Studies of Boko Haram and Al-Shabaab.” Journal of Internatonal Criminal Justce, 18 no. 2: (May 2020). 499–516. htps:// doi.org/10.1093/jicj/mqaa014. 21 “Rome Statute of the Internatonal Criminal Court (last amended 2010).” UN General Assembly, 1998, ISBN No. 92-9227-227-6, available at: htps://www.icc-cpi.int/resource-library/documents/rs-eng.pdf; see also Internatonal Criminal Court (ICC), Elements of Crimes, 2011, ISBN No. 92-9227-232-2, available at: htps://www.icc-cpi.int/nr/ rdonlyres/336923d8-a6ad-40ec-ad7b-45bf9de73d56/0/elementsofcrimeseng.pdf. 22 “Dominic Ongwen Declared Guilty of War Crimes and Crimes against Humanity Commited in Uganda.” Internatonal Criminal Court, February 4, 2021. htps://www.icc-cpi.int/Pages/item.aspx?name=pr1564. 23 “Historic Judgement Finds Akayesu Guilty of Genocide.” United Natons Internatonal Residual Mechanism for Criminal Tribunals, September 2, 1998. htps://unictr.irmct.org/en/news/historic-judgement-fnds-akayesu-guilty- genocide. 24 “The Prosecuton at Natonal Level of Sexual and Gender-Based Violence (SGBV) Commited by the Islamic State in Iraq and the Levant (ISIL).” Eurojust, July 2017. htps://www.eurojust.europa.eu/sites/default/fles/Partners/ Genocide/2017-07_Prosecuton-at-natonal-level-of-sexual-and-gender-based-violence_EN.pdf; see also: Kather, Alexandra Lily, and Alexander Schwarz. “Intersectng Religious and Gender-Based Persecuton in Yazidi Genocide Case: A Request for an Extension of Charges.” Just Security, February 24, 2021. htps:// www.justsecurity.org/74943/intersectng-religious-and-gender-based-persecuton-in-yazidi-genocide-case-a- request-for-an-extension-of-charges/. 25 United Natons Team of Experts Rule of Law/Sexual Violence in Confict, 35; see also: “New Iraqi Law 'Major Step' in Assistng ISIL's Female Victms but More Must Be Done.” United Natons, April 21, 2021. htps://news.un.org/en/story/2021/04/1090322.

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collected from key crime scenes in Iraq, SECURING THE EVIDENCE including mass executon sites and locatons used to hold and process those subject to sexual slavery, can also assist natonal Moving past questons of substantve law, investgators in bringing the crime scene to ultmately the charges which domestc the courtroom. prosecutors can and cannot bring will depend on the evidence that is available to them. Second, the use of advanced technology to UNITAD was established in response to a organize and fully exploit this material request from Iraq, and Iraqi authorites are creates important opportunites to take the primary intended recipients of the forward prosecutons under complex and evidence gathered by the team. However, challenging circumstances. This includes a while some sharing of informaton has been project supportng the digitzaton of all supported in relaton to fnancial crimes existng documentary evidence held by Iraqi commited in support of ISIL, the full transfer authorites; the use of geolocalizaton of the evidence gathered has not yet technology based on images of victms and happened, with the potental impositon of perpetrators to corroborate testmonial the death penalty by Iraqi courts remaining evidence; enhanced decrypton capacity; and an obstacle. Nevertheless, the sharing of artfcial intelligence and machine learning evidence with other states is also part of techniques (developed in cooperaton with UNITAD’s mandate, and so far, fourteen Microsof) to rapidly exploit multmedia fles states have requested the team’s assistance and identfy relevant objects, faces, and with ongoing proceedings. locatons.26 Machine redacton and translaton of video fles, recently integrated The work of UNITAD, and some innovatve into the suite of technological tools drawn on solutons it has developed, may therefore by UNITAD, has the potental to signifcantly prove benefcial to domestc prosecutors enhance the ability of investgators to search both within Iraq and beyond in a number of against video assets depictng crimes ways. commited by ISIL.

First, the volume and range of material Third, innovatve use of technologies has gathered provides an invaluable archive of enabled remote interacton with witnesses potental evidence for states. These include and victms. Shuhud is a trilingual web-based, internal ISIL payment logs and immigraton mobile-friendly reportng tool27 which records; witness testmonies; call logs and facilitates access for those in remote areas of other digital material extracted from the Iraq, whose statements can then be analyzed thousands of recovered laptops, external by UNITAD and trigger further investgatons hard drives, and mobile phones; autopsy as appropriate. In another notable example, reports following the excavaton of mass eight witnesses to alleged ISIL crimes were grave sites; photographic and video evidence; questoned by Finnish judges via video-link and satellite imagery. 3-D laser scans from the UNITAD ofce in Baghdad, including

26 “Harnessing Advanced Technology in Internatonal Criminal Investgatons: Innovatve Approaches in Pursuit of Accountability for ISIL Crimes.” United Natons Investgatve Team to Promote Accountability for Crimes Commited by Da’esh/ISIL. htps://www.unitad.un.org/content/harnessing-technology-publicatons. 27 “Shuhud.” UNITAD. htps://www.unitad.un.org/content/shuhud.

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ISIL detainees made available through have diferent rules on evidence, and defense cooperaton with Iraqi authorites.28 Though counsel can be expected to raise challenges this initatve did not lead to a convicton in on issues including chain of custody, hearsay, that case (as the totality of evidence authentcaton of the material gathered, produced by prosecutors stll did not meet eforts made to gather exculpatory evidence, the standard of proof required), such and so on.29 measures could be replicated in the future and may help mitgate practcal and legal That said, above and beyond the obstacles to domestc courts’ adjudicaton of prosecutons that will follow these specifc conduct commited thousands of miles away, investgatons or utlize this partcular as well as ongoing logistcal challenges arising evidence, the development of innovatve from the pandemic. investgatve techniques and the capacity- building measures taking place (which should Fourth, the support provided by UNITAD to strengthen the criminal justce capacites of Iraqi authorites to enhance their own Iraq and its ability to engage in internatonal capacity to collect and store evidence judicial cooperaton with third party states) relatng to ISIL crimes could have a lastng could bring long-term benefts to domestc impact on the ability of Iraq to engage with eforts to prosecute a range of crimes. and support prosecutons globally. Ongoing projects include the provision of support to This will depend, in part, on avoiding the Iraqi authorites in the collecton of forensic traditonally siloed bureaucratc, legal, and evidence from key crimes scenes, the politcal approaches to the related issues of structuring and archiving of evidence in line terrorism, core internatonal crimes, SGBV, with internatonal standards, and the and victms of armed confict. Such silos exist development of case-fles relatng to within states—in capitals and within internatonal crimes commited by members diplomatc representatons. They also exist of ISIL. within the United Natons. The Security Council resoluton establishing UNITAD called Some open questons remain, not least for the team’s cooperaton with the 1267 whether all the material gathered by UNITAD Monitoring Team; the frst UNITAD report will be admissible at trial. The team has highlighted the importance of coherence sought to follow internatonal best practces with other UN enttes;30 and in principle in gathering and storing evidence, but both CTED and the UN Ofce of Counter- whether evidence can ultmately be relied Terrorism could play a role in disseminatng upon will be decided by domestc courts in the good practces developed. References to individual countries. Diferent legal systems these other UN enttes have been few and

28 “Fourth report of the Special Adviser and Head of the United Natons Investgatve Team to Promote Accountability for Crimes Commited by Da’esh/Islamic State in Iraq and the Levant.” UNITAD, S/2020/386, para. 83. htps://undocs.org/S/2020/386. 29 Cryer, Robert. “The UN Guidelines on ‘Batlefeld’ Evidence and Terrorist Ofences: A Frame, a Monet, or a Patchwork?” Just Security, August 21, 2020. htps://www.justsecurity.org/72094/the-un-guidelines-on-batlefeld- evidence-and-terrorist-ofences-a-frame-a-monet-or-a-patchwork/. 30 “First report of the Special Adviser and Head of the United Natons Investgatve Team to Promote Accountability for Crimes Commited by Da’esh/Islamic State in Iraq and the Levant.” UNTAD, S/2018/1031, paras. 69-84. htps:// undocs.org/S/2018/1031.

11 BRINGING TERRORISTS TO JUSTICE: PROSECUTING ISIL WAR CRIMES AND TERRORISM far between in the more recent UNITAD reports, however. Moreover, as the fles are RECOMMENDATIONS ofen covered by diferent diplomats and experts, there is ofen litle dialogue and exchange between the requisite policy leads. 1. States should contnue to support the It remains to be seen whether these silos work of UNITAD, and wherever possible, prevent those with a stake in counterterrorism accelerate the pace of domestic prosecutions. from taking full advantage of the work of Although there will be increased focus on UNITAD. resource constraints, largely owing to the impact of COVID-19, and there will be In concluding his remarks, Special Adviser emerging and pressing security challenges, Khan noted the (rare) consensus within the it is vital that the crimes commited by ISIS Security Council in support of UNITAD and are recognized by the internatonal urged the Council to maintain that support so community and that perpetrators are held that the progress could be sustained.31 There accountable. is much about the establishment and work of UNITAD that is rare, if not unique, and it 2. There should be increased eforts to work provides an important opportunity for the with victms of ISIS crimes, afected internatonal community to reafrm their communit es, and civil society commitment to accountability for war crimes organizatons to ensure that their and terrorism, preventon of genocide, and perspectves and experiences are not sexual violence in confict. However, there overshadowed by the focus on individual are risks that this initatve will lose politcal ISIS crimes or perpetrators. The UN Ofce and fnancial support in the face of resource of Counter-Terrorism and should ensure constraints exacerbated by the pandemic and that its work to support victms of waning politcal atenton following the terrorism includes the means of increasing destructon of the territorial caliphate. access to resources and support for those afected by ISIS crimes; this should also The contributons of UNITAD to ensuring include work with enttes like UN Women accountability for the crimes of ISIL, before and UNICEF to ensure that measures to the courts of Iraq and other states, are repatriate, or prosecute, rehabilitate, and already clear. The longer-term benefts that reintegrate, individuals associated with ISIS its work can bring in addressing current and take sufcient account of the partcular future iteratons of terrorist groups in needs, roles, and priorites of afected diferent regions are yet to be fully realized, women and children. making it essental that its work contnue. States cannot hope to deter future terrorist 3. States should explore all relevant legal groups and prevent atrocites if perpetrators instruments to ensure that terrorists are of these crimes cannot be brought to justce. brought to justce and that perpetrators of war crimes, sexual violence, and genocide are brought to justce. For example, states should consider more actvely using

31 “Security Council Arria Formula Meetng Highlights UNITAD Innovaton and Partnership as Model for Accountability Eforts Globally.” UNITAD, May 20, 2021. htps://www.unitad.un.org/news/security-council-arria- formula-meetng-highlights-unitad-approach-model-internatonal.

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Security Council Resoluton 2331 to increase the number of individuals designated under 1267 sanctons for sexual violence and human trafcking that supports terrorism.

4. States should consider cumulatve prosecutons, where appropriate, using both counterterrorism law and the law on core internatonal crimes, in order to ensure full accountability, including with respect to sexual and gender-based violent crimes.

5. There should be greater cooperaton and collaboraton, where feasible, between relevant internatonal and UN enttes, including states, the UN Ofce of Counter- Terrorism, the Counter-Terrorism Executve Directorate (CTED), the UN Ofce of Drugs and Crime (UNODC), the 1267 Sanctons Monitoring Team, and UNITAD. In partcular, for example:

A. CTED, UNODC, and UNOCT could facilitate the sharing, between states, of various state experiences and good practces in using evidence gathered by ISIL in domestc trials;

B. CTED, UNODC, and UNOCT could help ensure that states are aware of the innovatve investgatve/analytcal practces developed by UNITAD and the potental applicaton to relevant domestc prosecutons;

C. The 1267 Monitoring Team, UN The Soufan Center (TSC) is grateful to Women, and UNICEF could ensure that members of UNITAD for taking the tme to reportng on the ISIL threat contnues speak with us about their work and for to highlight the diferental impacts of sharing their expertse and insights. The ISIL crimes on men, women, and analysis and views in this Issue Brief solely children and share country-specifc refect the views of TSC. analysis with CTED and UNITAD as relevant.

13 BRINGING TERRORISTS TO JUSTICE: PROSECUTING ISIL WAR CRIMES AND TERRORISM

ABOUT TSC: The Soufan Center (TSC) is an independent non-profit center offering research, analysis, and strategic dialogue on global security challenges and foreign policy issues, with a particular focus on counterterrorism, violent extremism, armed conflict, and the rule of law. Our work is underpinned by a recognition that human rights and human security perspectives are critical to developing credible, effective, and sustainable solutions. TSC fills a niche role by producing objective and innovative reports and analyses, and fostering dynamic dialogue and exchanges, to effectively equip governments, international organizations, the private sector, and civil society with key resources to inform policies and practice.