ISSUE BRIEF BRINGING TERRORISTS TO JUSTICE: Prosecu(ng 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) aAacks against the Yazidi the law on “core internaGonal crimes” community in Sinjar consGtuted genocide; rather than, or in addition to, counterterrorism addiGonal details regarding war crimes and law. incitement to genocide in connecGon with mass execuGons at Tikrit Air Academy; and • At the global level, accountability for evidence of the repeated deployment of conflict-related sexual violence remains chemical weapons by the terrorist group. woefully inadequate. The cumulaGve approach may also bring a greater • Globally, prosecuGons for offenses likelihood of accountability for sexual and commiAed by ISIL have faced a number of gender-based crimes commiAed in the obstacles. These include the difficulty of context of terrorism. obtaining evidence regarding the conduct of persons in conflict zones; pracGcal • The work of UNITAD, and some innovaGve challenges in collecGng, processing, and soluGons it has developed, may prove storing digital evidence; obtaining it when beneficial to domesGc prosecutors within it is held outside the prosecutors’ Iraq and beyond in a number of ways. jurisdicGon; how to access evidence when These include the volume and range of it is encrypted on electronic devices formerly potenGal evidence collected for states; the used by terrorist enGGes; and how to use of advanced technology to help take analyze informaGon that is extracted given forward prosecuGons under complex and the volume of data that can be involved. challenging circumstances; and the innovaGve use of technologies to enable • In seeking to address the challenges faced remote interacGon with witnesses and by naGonal authoriGes in ensuring vicGms. 1 BRINGING TERRORISTS TO JUSTICE: PROSECUTING ISIL WAR CRIMES AND TERRORISM • RecommendaAons include: states should should consider cumulaGve prosecuGons, conGnue to support the work of UNITAD where appropriate, using both and accelerate the pace of prosecuGons; counterterrorism law and the law on core efforts to work with vicGms of ISIS crimes internaGonal crimes; and there should be should be increased; states should explore greater cooperaGon and collaboraGon, all relevant legal instruments to ensure that where feasible, between relevant terrorists are brought to jusGce; states internaGonal and UN enGGes. INTRODUCTION In his final briefing to the United NaGons review of the UN Global Counterterrorism Security Council in May 2021, the Special Strategy, the UN General Assembly Adviser and Head of the United NaGons framework that provides normaGve and InvesGgaGve Team to Promote Accountability policy guidance to all states and approximately for Crimes CommiAed by Da’esh/ISIL forty UN agencies, funds, and programs. (UNITAD), Karim A.A. Khan QC, highlighted September will mark the twenGeth their finding of “clear and convincing anniversary of the 9/11 aAacks in the United evidence” that ISIL aAacks against the Yazidi States, which should trigger reflecGon by all community in Sinjar consGtuted genocide; stakeholders on what has and has not been addiGonal details regarding war crimes and achieved through multilateral counterterrorism incitement to genocide in connecGon with since then. By the end of December, Security mass execuGons at Tikrit Air Academy; and Council members will need to negoGate 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 ExecuGve Directorate (CTED) and asserGons by invesGgators into convicGons, the Al-Qaida/ISIL “1267” SancGons 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 sancGons mechanism can be made. All of this is occurring against the While welcoming these landmark findings, 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 implicaGons of the work accomplished by groups moGvated by extreme right-wing UNITAD for broader internaGonal efforts 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 negoGaGng the biennial 1 “Special Adviser Khan Briefs Security Council on UNITAD InvesGgaGons.” United NaGons InvesGgaGve Team to Promote Accountability for Crimes CommiAed by Da'esh/ISIL, May 10, 2021. hAps://www.unitad.un.org/news/ special-adviser-khan-briefs-security-council-unitad-invesGgaGons. 2 Blazakis, Jason M., and Naureen Chowdhury Fink. “The InternaGonal Far-Right Terrorist Threat Requires a MulGlateral Response.” Lawfare, April 4, 2021. hAps://www.lawfareblog.com/internaGonal-far-right-terrorist- threat-requires-mulGlateral-response. 2 BRINGING TERRORISTS TO JUSTICE: PROSECUTING ISIL WAR CRIMES AND TERRORISM prioriGes. 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 classified by ISIL have faced a number of obstacles.3 because of how and where it was collected One is the difficulty 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 conflict zones in Iraq and Syria. Onen, naGonal invesGgators find With respect to tesGmonial material, that the trail of informaGon regarding the prosecutors face significant challenges in acGviGes of an individual will dry up following idenGfying and engaging with witnesses and their entry into these areas, parGcularly survivors who remain in Iraq and Syria, many during the Gme at which ISIL held territorial of whom are sGll in internal displacement control. camps. Even where possible to contact relevant individuals, invesGgators face a Evidence stemming directly from crime difficult and delicate task in supporGng scenes, such as electronic devices seized witnesses to come forward with their from terrorist organizaGons, will onen be accounts in a manner that is sensiGve to the essenGal for a successful prosecuGon (or as trauma they have suffered as a result of their leads for addiGonal invesGgaGons). However, experiences. there are significant pracGcal challenges in ensuring these assets are collected and A further common obstacle relates to digital processed in a manner that allow for their and telecommunicaGons evidence: how to onward use in criminal proceedings. State obtain it when it is held by CommunicaGon actors that are most commonly acGve in Service Providers on servers based outside conflict zones—the military—are not usually the prosecutors’ jurisdicGon; how to access it trained to carry out this task, and doing so when it is encrypted on electronic devices may not fit easily with their operaGonal formerly used by terrorist enGGes; and how 3 “ResoluGon 2396 (2017).” United NaGons Security Council, S/RES/2396 (2017). hAps://undocs.org/S/RES/ 2396(2017); “2018 Addendum to the 2015 Madrid Guiding Principles.” United NaGons Security Council, S/2018/1177, para. 29. hAps://undocs.org/en/S/2018/1177. 4 “Abuja RecommendaGons on the CollecGon, Use and Sharing of Evidence for Purposes of Criminal ProsecuGon of Terrorist Suspects.” Global Counterterrorism Forum. hAps://www.thegcr.org/Portals/1/Documents/ Framework%20Documents/2018/GCTF-Abuja-RecommendaGons_ENG.pdf? ver=2018-09-21-122246-523×tamp=1580219129062; See also: “Non-Binding Guiding Principles on Use of BaAlefield Evidence in Civilian Criminal Proceedings.” The InternaGonal InsGtute for JusGce and the Rule of Law. hAps://theiij.org/wp-content/uploads/Non-Binding-Guiding- Principles-on-Use-of-BaAlefield-Evidence-EN.pdf. 3 BRINGING TERRORISTS TO JUSTICE: PROSECUTING ISIL WAR CRIMES AND TERRORISM to analyze informaGon that is extracted given the volume of data that can be involved.5 UNITAD: CONTRIBUTIONS & These obstacles to securing reliable evidence INNOVATIONS impede efforts to ensure full accountability for the crimes commiAed, result in sentences In this context, it is important to consider that do not fully reflect the gravity of whether or how the work of UNITAD, and in conduct, and are one factor influencing some parGcular the technological tools it has states’ reluctance to acGvely repatriate their developed in support of its acGviGes, can naGonals from Al-Hol and other camps in support internaGonal efforts to counter northern Syria. terrorism and bring terrorists to jusGce. The connecGon may seem obvious: UNITAD was, aner all, established (in response to Iraq’s call for assistance from the Mosul internaGonal community) to invesGgate Raqqa Sinjar crimes commiAed in Iraq by ISIL, an enGty that has been designated by the UN, regional SYRIA Baghouz enGGes, and many states as a terrorist Damascus organizaGon and a threat to internaGonal IRAQ Baghdad peace and security.6 The UN Security Council resoluGon