Introduction
The closure of UNITAD on 17 September 2024 represents a turning point in efforts to achieve justice for the atrocities committed by ISIL. Established by UN Security Council Resolution 2379 in 2017, UNITAD was tasked with collecting and preserving evidence of ISIL’s crimes, including genocide, war crimes, and crimes against humanity; a critical step in the international community’s response to the atrocities committed by ISIL, particularly the genocide against the Yazidis and other minority groups. Over the years, UNITAD has made progress in collecting and preserving evidence, facilitating the exhumation of mass graves, and supporting prosecutions in third countries under universal jurisdiction. However, it has failed to support the prosecution of perpetrators within Iraq, and its closure threatens to leave many tasks unfinished, including the full excavation of mass graves, the sharing of usable evidence on ISIL’s crimes and networks, and the strengthening of Iraq’s judicial system to handle international crimes.
The major pressing issue related to the closure of UNITAD is the future of evidence it has already collected and processed, at immense cost. This evidence, which includes witness testimonies, forensic data, and documentation of mass graves, is crucial for prosecuting ISIL members and establishing a historical record of the atrocities committed. Yet the potential transfer of this evidence to Iraqi authorities presents significant legal and ethical challenges, compounded by the fact that Iraq’s current legal framework is not equipped to prosecute international crimes such as genocide and crimes against humanity. Although there have been efforts to draft legislation that would address these crimes, progress has been slow, and the existing legal infrastructure remains unlikely to change. This legal gap poses a barrier to the use of UNITAD’s evidence in Iraqi courts, raising questions about the future of this form of accountability in Iraq. These problems were not unforeseen, and have indeed been extensively covered in thoughtful engagement by Mohamad Ghazi Janaby and Ahmed Aubais Alfatlawi (International Criminal Law Review, 2021) and earlier commentary by Beth Van Schaack (Journal of International Criminal Justice, 2018).
Legal and ethical challenges of evidence transfer
UNITAD’s evidence can be broadly categorized into two types: evidence provided by Iraqi institutions, and evidence collected from survivors, witnesses, civil society organizations (CSOs), and third states. The former can be shared with Iraq provided it meets international standards. The latter category is subject to stricter conditions. UNITAD, for better or – mostly – worse, is bound by standards that require the consent of the statement providers and adherence to principles such as fair trials and the prohibition of the death penalty. Without these assurances, UNITAD cannot share this sensitive evidence with Iraqi authorities, bound as it is by the requirement to use the evidence in fair and independent criminal proceedings by competent judicial authorities. This has served few survivors.
UNITAD has also been clear that it will only transfer evidence under strict conditions, including assurances that the Iraqi government will conduct fair trials in accordance with international human rights standards, particularly the prohibition of the death penalty. This requirement reflects deep ethical concerns about the potential misuse of evidence in a legal system that has been criticized for its lack of transparency and fairness, and means evidence cannot be shared if it is to be used in criminal proceedings where the death penalty could be imposed.
Securing legislative reform in Iraq
The challenges of prosecuting ISIL members in Iraq are, of course, immense. While there have been attempts to pass legislation that would enable this, such efforts have been hampered by political and legal obstacles. The Government of Iraq (GoI) has made some progress, notably with the Yazidi Survivors’ Law (YSL), which commits Iraq to cooperating with international entities in investigating and prosecuting ISIL crimes, as well as providing forms of reparative justice (Coalition for Just Reparations, 2021).
For Iraq to effectively prosecute ISIL members, legal reforms must address broader issues within Iraq’s judiciary, including the abolition of the death penalty for ISIL-related cases and the implementation of fair trial standards. The international community, including UNITAD, has emphasized the importance of fair and independent criminal proceedings in Iraq. Iraq’s justice system has often fallen short of this. Trials before the Iraqi High Tribunal and anti-terrorism courts have been criticized for failing to meet international fair trial standards (UNAMI and OHCHR, Human Rights in the Administration of Justice in Iraq, 2020). The use of the death penalty in Iraq complicates matters, as international best practices prohibit the sharing of evidence that leads to execution (Amnesty International, 2024).
Moreover, the issue of false allegations and wrongful convictions has further eroded trust in the Iraqi justice system (Amnesty International, 2020). Reports of forced confessions extracted under torture and lack of proper legal representation for defendants raises serious concerns about the integrity of trials (Human Rights Watch, 2017). These practices not only undermine the credibility of the judicial process but also risk punishing the innocent while allowing the guilty to escape justice. This lack of trust underscores the need for a robust and transparent mechanism to ensure that the evidence is used appropriately, and that justice is served.
In June 2024, a report from the United Nations High Commissioner for Human Rights, signed by experts including the UN Special Rapporteurs on extrajudicial, summary or arbitrary executions, the promotion and protection of human rights while countering terrorism, and the independence of judges and lawyers, issued findings that the GoI’s systematic executions of prisoners sentenced to death based on torture-tainted confessions, and pursuant to an ambiguous counterterrorism law, amount to arbitrary deprivation of life under international law and may amount to a crime against humanity (OHCHR, 2O24).
The Special Rapporteurs said:
Not only are death row prisoners subjected to severe psychological pain and suffering due to the lack of information about the date of execution, but they are also reportedly tortured and suffer other forms of ill-treatment in the notorious al-Nasiriyah prison, including lack of access to adequate food and clean drinking water. The alleged political use of death sentences, mainly against Sunni Iraqi males, is deeply troubling.
Historical false allegations and wrongful convictions have consequences, not only for the individuals who are unjustly punished, but also broader society. These miscarriages of justice not only violate the rights of the accused but also undermine the overall integrity of Iraq’s judicial system, and the delicate support of the state. They contribute to a culture of impunity, where the real perpetrators of crimes go unpunished and innocent people are condemned, undermining public trust in the judicial system, and setting back efforts to achieve justice and reconciliation in post-conflict Iraq. Addressing these issues is critical to the success of any post-UNITAD efforts. This includes not only reforming the legal framework to ensure that international crimes are prosecuted properly but also taking concrete steps to prevent and rectify wrongful convictions. This could involve the establishment of an independent body to review cases of wrongful conviction and provide compensation to those who have been wrongfully imprisoned, as well as their broken and traumatized families.
The role of civil society organizations
As UNITAD prepares to wind down, the role of CSOs and international actors becomes increasingly crucial. Organizations like the Coalition for Just Reparations (C4JR), an alliance of 34 Iraqi NGOs calling for comprehensive reparations for survivors of atrocities perpetrated during the ISIL conflict in Iraq – including Yazda, SEED Foundation, and Nadia’s Initiative – have been engaged in documenting ISIL crimes and advocating for the rights of survivors.
The closure of UNITAD, therefore, threatens to leave a void that these organizations may struggle to fill. While CSOs are well-positioned to continue advocating for justice, they lack the financial resources and institutional support that UNITAD, as a UN body, provided. Furthermore, without the backing of international actors, CSOs may find it increasingly difficult to influence the Iraqi government and ensure that the evidence collected by UNITAD is used effectively. Many of these organisations have never met with the Federal Iraqi Judiciary, operating in an ineffective silo.
The problem with a hybrid tribunal
Given the limitations of Iraq’s domestic legal system, there have been calls for the establishment of a hybrid tribunal with international cooperation; something survivors continue to support. This tribunal would theoretically have the jurisdiction to prosecute ISIL members for genocide, war crimes, and crimes against humanity, applying both Iraqi and international law. The creation of such a mechanism would require significant political will and international support, but supporters say it would provide a more credible and effective means of delivering justice for the victims of ISIL’s atrocities (C4JR’s Position Paper on an ISIL Accountability Mechanism in Iraq, 2022). The idea of a hybrid tribunal is not new. Similar mechanisms have been established in other post-conflict situations, such as the Special Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia. These tribunals have demonstrated that it is possible to combine international expertise with domestic legal systems to prosecute the most serious crimes, while also ensuring that justice is delivered in a manner that is both fair and acceptable to survivors.
However, the path to establishing a hybrid tribunal in Iraq is fraught with challenges. Iraq’s Federal Supreme Court has already found that a proposed Kurdistan Regional Government (KRG) draft law to establish a tribunal contravenes the Iraqi Constitution, blocking this in 2021 (Rudaw English, 2021). Legal experts must explore whether it is possible to craft a mechanism that is compatible with both the Iraqi Constitution and international law – and sooner rather than later. The establishment of a hybrid tribunal would also require careful consideration of how to balance international standards with the unique political and legal context of Iraq. This would include addressing concerns about the use of the death penalty, ensuring the independence of the judiciary, and protecting the rights of defendants. Only by addressing these issues could any hybrid tribunal have a chance of gaining the trust of both survivors and international community.
Major diplomatic efforts would be asked, too, of the Iraqi government; seeking the cooperation of international partners to establish a tribunal that meets international standards and has the necessary resources and expertise to prosecute ISIL members effectively. This would not only ensure that justice is delivered for survivors, but it would additionally serve to strengthen Iraq’s legal system and its commitment – and record – to upholding human rights in the process. Yet the harsh reality is that, in the same way that Iraq’s parliament is not going to issue or create international laws, international tribunals are a dream. Continuing to push for these Western legal concepts demonstrates a failure to understand the reality of the situation and is holding change back from within the country and the communities so many NGOs purport to serve. Equally, after the UNITAD fiasco, it is understandable why Iraqis would not want to allow anyone else in to establish an international court. Survivors will have to work with the judiciary.
The impact of international law and human rights standards
International law and human rights standards can by all means continue to guide efforts to address the legacy of ISIL’s crimes in Iraq, but with a greater self-awareness of the limitations of this approach. Adherence to international law is critical for maintaining the legitimacy of the justice process, ensuring that it is recognized as fair and just by both the Iraqi public and the international community, but not if it is seen to be imposed by Western nations, as it too often is. The need to ensure the rights of survivors and witnesses are respected and protected is of equal importance to meeting the highest standards of fairness and due process in trials of ISIL members, and this can and must be achieved through the country’s legal processes.
Transitional justice in Iraq
The challenges facing Iraq in the wake of UNITAD’s closure must also be understood within the broader context of transitional justice in the country. Iraq has experienced decades of conflict, dictatorship, and human rights abuses, leaving its society deeply divided and its legal system under immense strain. The overthrow of Saddam Hussein’s regime in 2003, the subsequent insurgency, and the rise of ISIL have created a complex and volatile environment in which achieving justice is extraordinarily difficult – and so too is being seen to impose this. Transitional justice in Iraq has been characterized by a series of ad hoc measures, often driven by political considerations rather than a coherent strategy for national reconciliation. The Iraqi High Tribunal, established to prosecute members of Saddam’s regime, was one of the early efforts to address past atrocities. Yet the tribunal faced significant criticism for its lack of independence, transparency, and adherence to due process, leading many to question its legitimacy.
More recent efforts to address the crimes of ISIL have faced similar challenges. The Iraqi government has struggled to develop a comprehensive approach to transitional justice that addresses the needs of all victims, regardless of their ethnic or religious background. This has been particularly evident in the treatment of Sunni Arabs, many of whom have been accused of supporting ISIL and have faced collective punishment, including mass arrests, or continue to be barred from compensation they are entitled to for destroyed homes in the liberation of their areas. The closure of UNITAD threatens to exacerbate these challenges, particularly if the evidence it has collected is not used effectively. There is another danger that Iraq’s justice process could become even more politicized, with trials being used as a tool for settling scores rather than achieving genuine justice. This would not only harm the individuals involved but also hinder Iraq’s broader efforts to achieve national reconciliation and build a stable and inclusive society.
Conclusion
The responsibility for continuing this mission now lies with the Iraqi government, supported by the international community, but ultimately led by Iraqi communities themselves, to ensure that the momentum toward justice for all Iraqis is not lost. This task will require a comprehensive approach that includes legal reform and sustained support for survivors, their communities, and CSOs. Only by addressing these challenges can Iraq hope to achieve lasting peace and reconciliation, ensuring that the crimes of ISIL are never forgotten, and offering hope and healing to those who have suffered so greatly. Support this, rather than imposing another framework.