Title: After Defeating ISIS: A Renewed Opportunity to Prioritize Accountability in Iraq

Iraq has been caught in cycles of sectarian violence and unrest since the 2003 U.S. invasion which has claimed the lives of many and destroyed the country’s infrastructure and institutional capacity. In addition, both state and non-state actors committed numerous human rights abuses against the civilian population. The lack of a thorough response to these crimes has created an accountability gap as many perpetrators have gone unpunished—a trend that contributes to Iraq’s continued susceptibility to further violence and brutal conflicts.

The 2017 victory over ISIS presents a renewed opportunity to rethink approaches to reconciliation and demand accountability for human rights violations, thereby enabling the country to move forward. Iraq needs a secure environment and a comprehensive judicial reform strategy, backed by support from the international community, that reflects the peoples’ needs and priorities. Strengthening Iraq’s judicial institutions is essential to addressing the root causes of ISIS’ ascendance and for holding all perpetrators of human rights violations—including official government entities—accountable in a court of law.

Almost three years of ISIS control resulted in numerous humanitarian violations and crises, marked by thousands of deaths, around three million internally displaced persons (IDPs), and the destruction of critical infrastructure and services. According to a UN Human Rights report in 2015, ISIS flagrantly violated international human rights law and international humanitarian law (IHL) by executing hundreds of civilians, Iraqi Security Force troops, and public office candidates. Additionally, it launched chemical attacks on the town of Qayyarah to the south of Mosul. ISIS fighters adopted a systematic campaign of forced displacement against the civilian population that subjected women and girls to appalling discrimination and violence. When the operation to retake Mosul began in October 2016, ISIS started forcibly evacuating civilians to use them as human shields for their militants.

ISIS also singled out minority groups such as the Yezidi, executing men and separating young boys from their families to send to training camps. They tortured, raped, murdered, and sexually enslaved Yezidi women and girls while holding about 3,200 captive, most of whom they later moved to Syria. The UN Commission of Inquiry on Syria legally determined that ISIS has committed genocide, multiple crimes against humanity, and war crimes against the Yezidis. With the liberation of Iraqi territory from ISIS, various armed groups backed by the Iraqi and the Kurdish governments claimed control over the Sinjar mountain range, causing a dispute over governmental jurisdiction in the area. A number of Yezidis refused to return to their homes, fearing the dispute would spark new cycles of violence. The trauma of captivity, rape, and killings, compounded by the fear of further conflict, continues to impede the Yezidis’ ability to rebuild their lives in Iraq.

Moreover, as part of its operations against ISIS, the Iraqi government claimed to prioritize the protection of civilians, invoking “people before land,” when confronting serious security concerns. However, Iraqi armed forces reportedly failed to abide by their obligations under IHL, committing numerous violations. In some cases, Iraqi forces reportedly tortured and executed those captured near the battlefield. Further, according to Human Rights Watch, “international observers have discovered an execution site in west Mosul… [with other evidence showing] Iraqi forces extrajudicially killing men fleeing Mosul in the final phase of the battle.” They have also launched a series of unlawful attacks using Improvised Rocket Assisted Munitions (IRAMs) in west Mosul—weapons featuring crude targeting capabilities. Prime Minister al-Abadi acknowledged these human rights violations in the Mosul liberation battle, but he considered them “individual acts.” While he agreed to launch an investigation, an effective and independent one remains to be seen.

In response to international outcry and, “to ensure [the Islamic State’s] crimes do not poison Iraqi society for generations,” the UN Security Council unanimously adopted UNSC Resolution 2379 in 2017. The resolution mandates the establishment of an investigative team to support Iraqi efforts to hold ISIS accountable for its crimes. Invoking Iraq’s national sovereignty, the resolution calls upon international actors to provide the necessary support to the Iraqi authorities in evidence collection and investigation to try perpetrators before Iraqi courts.

It further requested the investigative team’s Special Advisor to “promote accountability…in a manner consistent with relevant national laws.” Human rights organizations, viewing this resolution as a way to preserve selective justice, considered it a missed opportunity for accountability and justice in Iraq. The lack of comprehensive approaches to impartial justice could undermine the country’s long-term stability. These organizations additionally criticized the resolution for seeking an alternative to the International Criminal Court, which, despite its flaws, has a responsibility to investigate human rights abuses committed by all parties.

The resolution also poses a question about the national courts’ capability to investigate and prosecute those who violate IHL in accordance with international standards and principles. Many have criticized the judicial system for lacking impartiality and independence, as well as its vulnerability to political interference. Demands for judiciary reform were high on the list of the 2015 popular protests. A recent Gallup survey indicates that a near majority of Iraqi people has lost confidence in the branch. Arbitrariness also plagues law enforcement agencies. Numerous local and international human rights organizations reported a lack of respect for due process during trails and in obtaining confessions, as authorities tortured, threatened, and physically abused suspects. A recent mass execution of forty-two prisoners by the Iraqi authorities renewed concerns about the viability of the judiciary to uphold human rights principles and standards. These violationscontinue to occur to date.

These human rights abuses, committed against Iraqi civilians by the law enforcement agencies that claim to protect them, has bred suspicion between the people and the state. Feelings of injustice, unaddressed grievances, and a growing gap in trust between the government and Iraqi citizens have weakened prospects for long-term political settlement. As Iraq embarks on a new chapter, pursuing accountability and justice for all victims will translate the current military victories into long-term stability. This step, in turn, will open avenues for reconciliation among communities and provide support for the country’s counterterrorism efforts. Reconciliation and accountability will ensure that Iraq is not destined for another round of conflict. It is crucial for Iraq to instate accountability and effective rule of law by establishing a judicial system that has competent and independent representatives, adequate resources, and reflects the demographic and ethnic makeup of the communities it serves. Iraq needs a judicial system that ensures equal access to justice for all individuals without discrimination. The legal framework should be simultaneously reformed to include precise and clear laws, applied impartially, that protect fundamental human rights.

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Lana Baydas is a senior fellow with the CSIS Human Rights Initiative. Prior to joining CSIS, she worked as both an academic and a practitioner in human rights, gender equality, development, and international humanitarian law with the UN, Crisis Action, the International Committee of the Red Cross, and the American University in Cairo. Dr. Baydas has worked intensively in the Middle East and North Africa (MENA) region in programs promoting gender equality and protecting human rights. She has authored/coauthored multiple publications on human rights in MENA and has undertaken a number of field assignments in Darfur, Sudan, Syria, Egypt, and Lebanon focused on related issues. She holds a Ph.D. and L.L.M. in public international law from the University of Glasgow in Scotland and a B.A. in political science from the American University of Beirut in Lebanon.