War crimes tri­bunal sought against Is­lamic State de­tainees

Daily Local News (West Chester, PA) - - NEWS - By Des­mond But­ler and Lori Hin­nant

War crimes in­ves­ti­ga­tors col­lect­ing ev­i­dence of the Is­lamic State group’s elab­o­rate op­er­a­tion to kid­nap thou­sands of women as sex slaves say they have a case to try IS lead­ers with crimes against hu­man­ity but can­not get the global back­ing to bring cur­rent de­tainees be­fore an in­ter­na­tional tri­bunal.

Two years af­ter the IS onslaught in north­ern Iraq, the in­ves­ti­ga­tors, as well as U.S. diplo­mats, say the Obama ad­min­is­tra­tion has done lit­tle to pur­sue prose­cu­tion of the crimes that Sec­re­tary of State John Kerry has called geno­cide. Cur­rent and for­mer State Depart­ment of­fi­cials say that an at­tempt in late 2014 to have a le­gal find­ing of geno­cide was blocked by the De­fense Depart­ment, set­ting back ef­forts to pros­e­cute IS mem­bers sus­pected of com­mit­ting war crimes.

“The West looks to the United States for lead­er­ship in the Mid­dle East, and the fo­cus of this ad­min­is­tra­tion has been else­where — in ev­ery re­spect,” Bill Wiley, the head of the in­de­pen­dent in­ves­tiga­tive group, the Com­mis­sion for In­ter­na­tional Jus­tice and Ac­count­abil­ity, told The As­so­ci­ated Press.

Of­fi­cials in Wash­ing­ton say that the De­fense Depart­ment and ul­ti­mately the ad­min­is­tra­tion were con­cerned that court tri­als would dis­tract from the mil­i­tary cam­paign. But the diplo­mats say that jus­tice is es­sen­tial in a re­gion whose re­li­gious mi­nori­ties have been ter­ror­ized. The of­fi­cials spoke on con­di­tion of anonymity be­cause they were not au­tho­rized to dis­cuss the is­sue.

The U.S. has no le­gal obli­ga­tion to take on the geno­cide of the Yazidis, but Pres­i­dent Barack Obama has said that “pre­vent­ing mass atroc­i­ties and geno­cide is a core na­tional se­cu­rity in­ter­est and a core moral re­spon­si­bil­ity of the United States of Amer­ica.”

Stephen Rapp, who stepped down as the ad­min­is­tra­tion’s am­bas­sador at large for war crimes last year, says the ad­min­is­tra­tion should have moved early to help se­cure ev­i­dence of IS atroc­i­ties and push for the cre­ation of spe­cial Iraqi courts to try war crimes.

“The pri­or­ity for the U.S. gov­ern­ment is to win the war against the Is­lamic State and de­stroy them,” Rapp said. “It’s been pro­foundly dis­ap­point­ing, be­cause the idea of ac­count­abil­ity has been such a low pri­or­ity.”

Rapp is now the chair­man of the ad­vi­sory board of the com­mis­sion, whose in­ves­ti­ga­tors in Iraq work with the Kur­dish re­gional gov­ern­ment to for­mally doc­u­ment the IS group’s crimes, in­clud­ing those against the Yazidi mi­nor­ity group. They have built a case im­pli­cat­ing the en­tire IS com­mand struc­ture in a plot to kid­nap Yazidi women and girls and es­tab­lish a sex-slave mar­ket.

The plan was ex­e­cuted by an or­ga­nized bu­reau­cracy at ev­ery step along the way, from the tem­po­rary sort­ing fa­cil­i­ties — in­clud­ing a prison, schools and a cur­tained ball­room where the Yazidis were di­vided by age and will­ing­ness to con­vert to Is­lam — to the wait­ing buses that would haul them by the dozens across the bor­der to Raqqa. The Is­lamic State group’s Shariah courts soon stepped in, to set­tle con­tract dis­putes and en­sure that its fi­nance hi­er­ar­chy got its cut of the sex slaves pro­ceeds.

“You have mem­bers of IS who were en­gaged in en­sur­ing that this sys­tem con­tin­ued and that it func­tioned well,” said Chris En­gels, the Amer­i­can lawyer who is lead­ing the com­mis­sion’s le­gal in­ves­ti­ga­tion. With­out a le­gal doc­u­men­ta­tion of their iden­ti­ties from the top down, many could “slide into refugee streams” and dis­ap­pear.

Though there are at least dozens of Is­lamic State ex­trem­ists in cus­tody in Iraq, there have been no prose­cu­tions for the crimes against hu­man­ity that the U.S. — among many oth­ers — in­sist have taken place. On Tues­day, the Obama ad­min­is­tra­tion’s en­voy for the coali­tion to counter Is­lamic State, Brett McGurk, tweeted that he “pledged full ac­count­abil­ity” for Is­lamic State crimes against the Yazidis, whom IS mil­i­tants con­sider in­fi­dels be­cause of their re­li­gion.

In 2012, Obama stood at the U.S. Holo­caust Memo­rial Mu­seum to an­nounce what he called a com­pre­hen­sive strat­egy to pre­vent and re­spond to war crimes with the es­tab­lish­ment of an atroc­i­ties pre­ven­tion board, not­ing that “as pres­i­dent I’ve done my ut­most to back up those words with deeds.”

But in fact, though the U.S. has backed lim­ited ef­forts to se­cure ev­i­dence of Is­lamic State atroc­i­ties in Iraq, there have been few tan­gi­ble steps to­ward prose­cu­tion. In a re­cent in­ves­ti­ga­tion the AP found that even in ter­ri­to­ries lib­er­ated from IS mil­i­tants by Kur­dish forces, dozens of mass graves have been left un­se­cured.

“It’s a tragedy that we are not get­ting in there and se­cur­ing th­ese sites where we can and do­ing things like col­lect­ing DNA ev­i­dence,” said Rapp.

A mea­sure by the House that calls on the U.S. to fund pre­cisely the kind of court en­vi­sioned by the in­ves­ti­ga­tors is un­likely to ad­vance any­time soon in an elec­tion year. With full in­ter­na­tional back­ing, the war crimes com­mis­sion says it would need about $6.6 mil­lion and about six months to get the tri­als go­ing.

“If the ad­min­is­tra­tion was com­mit­ted to crim­i­nal in­ves­ti­ga­tions of per­pe­tra­tors, then it would be ro­bustly fund­ing crim­i­nal in­ves­ti­ga­tions of per­pe­tra­tors. The fail­ure to fund shows a fail­ure to hold re­spon­si­ble par­ties ac­count­able,” said Rep. Chris Smith, a New Jer­sey Repub­li­can who spon­sored the bill.

The State Depart­ment said the U.S. was pro­mot­ing ac­count­abil­ity, and spokesman Mark Toner spec­i­fied that the ad­min­is­tra­tion is “sup­port­ing on­go­ing ef­forts to col­lect, doc­u­ment, pre­serve and an­a­lyze ev­i­dence of atroc­i­ties for tran­si­tional jus­tice pro­cesses.” He pro­vided no specifics.

“Our fo­cus right now is on sup­port­ing the ef­forts of na­tional authorities in Iraq to hold the per­pe­tra­tors of Da’esh’s atroc­i­ties to ac­count,” Toner added, us­ing an Ara­bic name for the ex­trem­ist group.

Rapp and other crit­ics say that the com­mis­sion is the only or­ga­ni­za­tion that has built the kind of le­gal case nec­es­sary for a gen­uine tri­bunal, but the group said none of its work in Iraq is funded by the U.S. Nei­ther the U.S. nor Iraq is a party to the In­ter­na­tional Crim­i­nal Court in the Hague, which is a court of last re­sort when na­tional ju­di­cial ef­forts have failed.

The war crimes com­mis­sion’s file, painstak­ingly and of­ten per­ilously gath­ered since 2014, is ready for a court that does not yet ex­ist. The pri­vate or­ga­ni­za­tion has pored over hard drives, leaked doc­u­ments, phone records and in­ter­views with cap­tured Is­lamic State fight­ers — in ad­di­tion to mon­i­tor­ing the Is­lamic State group’s own vo­lu­mi­nous pro­pa­ganda.

As head of the group, Wiley’s frus­tra­tion with coali­tion gov­ern­ments and wellmean­ing hu­man­i­tar­ian NGOs is pal­pa­ble. The goal is not to ad­vo­cate, or make prom­ises, but “trans­form­ing that ev­i­dence into crim­i­nal prose­cu­tion,” he told the AP in a re­cent in­ter­view in his of­fice, as he and his staff laid out the case against the ex­trem­ists. The hope, they said, is to build an ex­ist­ing court in Er­bil, the Iraqi Kur­dish cap­i­tal, into an in­ter­na­tion­ally backed court for Is­lamic State de­fen­dants.

“Through a scrupu­lously fair trial, you il­lus­trate that th­ese guys are not soldiers of Mo­ham­mad,” Wiley said. “Th­ese are the lead­ers of a crim­i­nal syn­di­cate.”

But whether the courts of Iraqi Kur­dis­tan, where most IS pris­on­ers are kept, are ready for the com­plex­i­ties of in­ter­na­tional crim­i­nal law is an open ques­tion. U.S. of­fi­cials worry that back­ing a spe­cial court in Iraqi Kur­dis­tan raises sticky ques­tions of sovereignty with the Iraqi cen­tral gov­ern­ment in Baghdad, which is sus­pi­cious of Kur­dish in­de­pen­dence ef­forts.

The war crimes com­mis­sion is best known for col­lect­ing ev­i­dence against Syr­ian Pres­i­dent Bashar As­sad but qui­etly branched out to doc­u­ment atroc­i­ties com­mit­ted by IS and other ex­trem­ist groups. The of­fice, based in Europe, has changed ci­ties four times since it was founded in 2012, and se­cu­rity is para­mount: No sign on the door, no Wi-Fi, no web­site. In or­der to speak to the AP, they re­quested that their cur­rent lo­ca­tion be with­held.

The com­mis­sion has a staff of 20 in Iraq split into three teams, col­lect­ing court-ready ev­i­dence an­a­lyzed at the group’s main of­fices. It says its le­gal file is the an­swer to mul­ti­ple calls for Is­lamic State ex­trem­ists to face jus­tice be­yond coali­tion airstrikes, which Wiley said is the sole fo­cus of ques­tion­ing.

“The in­tel­li­gence gath­er­ing is geared al­most en­tirely to­ward tar­get­ing,” he said.

A Kur­dish se­cu­rity of­fi­cial, speak­ing on con­di­tion of anonymity to re­lease sen­si­tive in­for­ma­tion, knew of dozens of de­tainees di­rectly linked to Is­lamic State mil­i­tants. At least some, Wiley said, could be pros­e­cuted as soon as a court could be up and run­ning.

But the Kur­dish gov­ern­ment is bank­rupt and riven by in­ter­nal strug­gles. The Er­bil-based Min­istry of Mar­tyrs and An­fal Af­fairs, which is named in mem­ory of Sad­dam Hus­sein’s dev­as­tat­ing 1988 cam­paign against the Kurds, has taken up the cause to try ex­trem­ists.

“Be­cause we be­lieve in the rule of law and in hu­man rights, and we think th­ese peo­ple must be tried prop­erly, fol­low­ing in­ter­na­tional stan­dards, un­der in­ter­na­tional su­per­vi­sion, not just in a se­cu­rity court,” said Mah­mud Haji Salih, head of the min­istry.

The word “sym­bolic” arises fre­quently when Wiley and his col­leagues dis­cuss pos­si­ble prose­cu­tions. No one har­bors any ex­pec­ta­tion that the Is­lamic State group’s lead­er­ship will ever face a judge. But he thinks the charges of crimes against hu­man­ity would serve a tan­gi­ble pur­pose, even be­yond jail­ing those re­spon­si­ble for the hor­ror against the Yazidi peo­ple.


The sun sets as women visit a Yazidi shrine over­look­ing at Kankhe Camp for the in­ter­nally dis­placed in Dahuk, north­ern Iraq, in this Wed­nes­day file photo. Lawyers in Europe in­ves­ti­gat­ing the Is­lamic State’s elab­o­rate op­er­a­tion to kid­nap thou­sands of women as sex slaves say they have enough ev­i­dence to try IS lead­ers with crimes against hu­man­ity, but two years af­ter the IS onslaught against the Yazidi peo­ple, the Obama ad­min­is­tra­tion has made lit­tle ef­fort to pur­sue prose­cu­tion. Cur­rent and for­mer U.S. State Depart­ment of­fi­cials say that a push for a le­gal find­ing of geno­cide in late 2014 was quashed by the De­fense Depart­ment.

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