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ISIL
members have been committing various crimes and bombings in Iraq, and various
cases have been reported by Iraq and in the media. As part of ISIL crimes, ISIL
seized control of the city Mosul, a city rich in cash and gold in 2014. However,
in 2017, the Iraqi Prime Minister declared that Iraqi forces had retaken Mosul back
from ISIL. While Iraqi forces remain in progress in recapturing ISIL controlled
territory, Iraq has recently requested assistance from the United Nations with
regards to the investigation of crimes committed by ISIL1.
The purpose of the investigation needed is to support Iraqi domestic effort to
hold ISIL accountable for their criminal actions2.Thus, the
Security Council of the United Nations in its 8052nd meeting on 21 September
2017 has adopted a resolution requesting the UN Secretary-General to establish
an investigatory body to be headed by a Special Adviser3.
The role of the Team is to support domestic efforts to hold ISIL accountable
through collecting, preserving, and storing evidence of acts that may amount to
(1) war crimes; (2) crimes against humanity; (3) genocide; (4) atrocity crimes;
and (5) to work with survivors in a manner consistent with relevant national
laws in Iraq. While operating with full respect to Iraq’s sovereignty and
jurisdiction over the crimes committed on its territory. The mandate is to
ensure the broadest possible use of national courts, and for investigations to
be carried out by the Iraqi authorities or by authorities in third countries at
their request. Whereas,. In addition, the Security Council decided that the
UN Secretary-General should establish a trust fund to receive voluntary contributions
to implement the Resolution, and States to contribute by monetary means or by services.
Based on the said resolution, the Security Council
holds the right to review the mandate carried out by the investigatory team
after a period of two (2) years which may be extended upon a request from the
government of Iraq. However, there are no information available on whether the
fund has been established, and the framework of which the Security Council has
the right to review the investigatory team’s mandate.Unfortunately, as reported by the Human Rights
Watch4,
the Iraqi government faces challenges with regards to due process and fair
trial standards. Iraq is relying on counterterrorism courts to prosecute all
ISIL suspects mainly on the charge of membership in ISIL. The main issue is the
Iraqi government does distinction the severity of the charges against ISIL suspect.
ISIL suspects have been identified based on wanted lists and accusations by
community members with no further evidence and are sentenced to death penalty.
As a result, misidentification and detention of non-affiliated members to ISIL
have been happening along with unhuman behavior and abuses by the Iraqi
security forces. Given that Iraqi courts allows for death penalty
for ISIL suspects, and the United Nations policy does not support or assist
processes that could lead to the death penalty. The Iraqi government is unable
to carry out the prosecution of ISIL suspects based on evidence on its own, nor
can it assure due process and fair trial. Therefore, the United Nations may not
be able to support Iraq if Iraq does not suspend the death penalty. Nonetheless, Iraq is not a member of the
International Criminal Court (ICC) which means that the international community
cannot examine the abuses made by the Iraqi’s security forces. As a result, Iraq’s
position to accomplish the object of the investigatory team might be weakened as
the United Nations have little to work with given Iraq’s position toward the
death penalty.

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