Renewed Focus On Brining Daesh To Justice Urgently Needed

On July 5, 2022, the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe (PACE) published its new report and recommendations for Member States to the Council of Europe calling for renewed focus on bringing Daesh to justice for the genocide against Yazidis, Christians, and other religious minorities in Iraq and Syria. The new report, authored by Pieter Omtzigt, Member of the Dutch Parliament and PACE Special Rapporteur on bringing Daesh to justice, focuses on the issue of Daesh foreign fighters and their families returning from Syria and other countries to the Member States of the Council of Europe.

The report deals with various challenges pertaining to the issue of justice and accountability for the Daesh foreign fighters’ involvement in the genocide. Among others, the report found that the majority of Daesh foreign fighters voluntarily returned to their country of nationality or residence, including 60 to the Netherlands, 75 to Denmark, 83 to North Macedonia, 97 to Austria, 122 to Germany, 300 to France and 360 to the United Kingdom. Furthermore, there have been deportations or extraditions from Turkey to France, Denmark, Germany, Ireland and Latvia. Unfortunately, upon their arrival in their home countries, the Daesh foreign fighters have been prosecuted for terrorism-related offenses only, including “membership of a terrorist organization, participation in terrorist activities, preparation of terrorist acts, support of a terrorist organization abroad, recruitment, receiving training or traveling for terrorist purposes, as well as financing any of these acts.”

The report calls upon Member States of the Council of Europe to renew their focus on ensuring justice and accountability for the Daesh genocide. Among others, it calls upon them to establish a special international tribunal or hybrid tribunal with jurisdiction over international crimes committed by Daesh foreign fighters. In 2019, a number of States, including Sweden, Norway, the Netherlands and Germany, have expressed their desire to work towards an ad-hoc tribunal. Unfortunately, no steps have been taken in this direction.

The report further recommends that “pending the setting up of such a tribunal, [Member States must] give priority to the prosecution by their national courts of suspected Daesh fighters and members who come within their jurisdiction or control, on the basis of the principle of active personality (for nationals) or universal jurisdiction.” The last eight years have shown very little focus on domestic prosecutions. While some Daesh foreign fighters have been prosecuted upon their return, the numbers of such prosecutions is low in comparison to the number of the returnees. Furthermore, all of these prosecutions were for terror related offenses and not genocide.

The report calls upon Member States to provide for universal jurisdiction over international crimes covered by the Rome Statute of the International Criminal Court (ICC). While some work in this direction has been done, it is only a tip of the iceberg of what Member States could do to ensure justice and accountability for the Daesh genocide, using the principle of universal jurisdiction. Currently, the only conviction of a Daesh fighter for genocide was using the principle of universal jurisdiction. On November 30, 2021, a court in Frankfurt, Germany, delivered a life sentence to a former Daesh fighter for genocide against the Yazidi minority – the first genocide conviction of a Daesh fighter in the world.

The report further calls upon Member States to prioritize prosecutions for genocide in order to recognize the nature and scale of the atrocities perpetrated against the Yazidis and other religious minorities. The prosecutions should also be conducted in a non-discriminatory manner, not forgetting the involvement of women in the atrocities, including as perpetrators, supporters, facilitators, recruiters or fund raisers etc.

In order to assist this work, the report calls for the establishment of and adequate funding for specialized units or staff within prosecution, law enforcement and judicial cooperation services for the prosecution of foreign terrorist fighters. Better cooperation is also needed with the existing mechanisms collecting the evidence, such as UNITAD, or with joint investigation teams such as the one established in 2021 between France and Sweden to support proceedings of the Daesh crimes.

Lastly, the report calls upon Member States to consider bringing before the International Court of Justice, proceedings against States which allegedly failed to prevent and punish acts of genocide committed by Daesh, and to ensure renewed effort to locate the missing Daesh victims.

The atrocities of Daesh require comprehensive legal responses, domestically and internationally. Despite the atrocities being perpetrated predominately in Iraq and Syria, thousands of Daesh foreign fighters are from Western countries. As such, the issue of justice for the crimes should not be a job for Iraq and Syria only. As Daesh foreign fighters have been returning to their home countries, or are yet to return, they must face investigations and prosecutions for their part in the genocide against the Yazidis, Christians and other minorities. Impunity will only enable further crimes in the future. We cannot afford that.