The Conclusion of UNITAD's Mandate in Iraq: An Unfinished Mission

The Islamic State of Iraq and the Levant (referred to as ISIL or Daesh) targeted Yazidi Kurds and many other Iraqi communities, particularly between 2014 and 2017. This extermination campaign, the most serious and largest of the 21st century, took place on Iraqi territory. In this day and age, information reaches the entire world at the click of a button, and these crimes have appeared so heinous that they have shaken the conscience of the international community. Today, Daesh has disappeared as a state entity, but its collateral movements and ideology remain.
During the short period of existence of the Islamic State in Iraq and Syria, the international community confronted it with significant force, employing military, economic, and political measures. This global coalition — in which non-state actors participated, such as the Iraqi Kurdistan region — played a decisive role in the destruction of the terrorist regime. However, neither the international community nor the United Nations have taken real steps to judge the crimes committed by the Islamic State during the following ten years.
With that said, in 2017, the UN Security Council decided to establish a team of investigators, known as UNITAD, tasked with holding ISIL accountable by collecting, preserving, and storing evidence of international crimes in Iraq. This initiative, while laudable, has been relatively overlooked by both scholars and practitioners. UNITAD represents an idealistic approach to international criminal justice, yet its practical implementation in holding Daesh members responsible remains unclear. This discrepancy between theory and practice underscores the unique nature of the links existing between Iraq and UNITAD (Section A). As this relationship evolves in tandem with Iraq's political landscape, it has given rise to another significant consideration: Iraq is actively contemplating the termination of the UN presence on its soil, which has endured for over thirty years (Section B).

The distinct relationship between Iraq and UNITAD
Firstly, it is important to clarify that this study focuses exclusively on the conclusion of the UNITAD mission in Iraq and its subsequent implications. We will not delve into the analysis of prosecutions initiated by national authorities against members of Daesh that do not pertain to international crimes. Among the myriad questions arising from the relationship between Iraq and the UN, we will initially scrutinise the restricted mandate requested by Iraq for UNITAD (Section I). Subsequently, we will explore how through UNITAD, Iraq is reshaping its longstanding historical connection with the UN (Section II).

The limited mandate of UNITAD
On 9 August 2017, the Iraqi Foreign Minister formally urged the United Nations to deploy experts to prosecute ISIL leaders. Subsequently, a collaborative effort between Great Britain and Iraq led to the drafting of a joint project. This initiative culminated on 21 September 2017, with the adoption of UN Security Council Resolution 2379. This resolution aimed to establish a hybrid team, comprising both international and Iraqi personnel, under the guidance of a special advisor tasked with investigating crimes committed by the Islamic State.
The primary objective of this team was to bolster national endeavours in holding ISIL accountable for its atrocities. To achieve this goal, the team was mandated to gather, preserve, and archive evidence of acts perpetrated in Iraq that could amount to war crimes, crimes against humanity, or genocide. UNITAD's mandate was subsequently outlined in a document consisting of 51 paragraphs, formulated with the agreement of Iraq. On 31 May 2018, UN Secretary-General Antonio Guterres appointed Karim Asad Ahmad Khan, a British national, as the special advisor and head of the investigation team. Having previously held the esteemed position of Attorney General of the International Criminal Court, Karim Asad Ahmad Khan departed from UNITAD in 2021, paving the way for the appointment of German investigator Christian Richer to assume his role.
UNITAD's jurisdiction encompasses the investigation, preservation, and storage of evidence pertaining to international crimes committed by the Islamic State against various communities in Iraq. The team diligently worked on excavating mass graves, conducting searches, and facilitating the repatriation of bodies to their respective families. Moreover, UNITAD's purview extends to a wide array of themes associated with international crimes, including genocide, crimes against humanity, and war crimes. Additionally, the team delved into issues such as the acquisition and utilization of chemical and biological weapons by the Islamic State, as well as the group's domestic and international funding. Notably, while the topic of funding and terrorism falls outside the direct scope of its mandate, UNITAD remains prepared to share relevant documentation with Iraq and other concerned nations to aid in the prosecution of Islamic State leaders.
However, despite the significance of these issues posing potential threats to international peace and security, the United Nations exhibited considerable indifference in their legal treatment. UNITAD was endowed with limited authority, effectively operating under the supervision and dominance of Iraqi authorities. These matters should have been addressed, at the very least during the preliminary investigation phase, in a manner akin to the adjudication of international crimes committed in the former Yugoslavia and Rwanda. For instance, the Security Council, through Resolution 780 on 6 October 1992, established a commission of inquiry similar to UNITAD. Subsequently, just a few months later, on 25 May 1993, the UN Security Council established the International Criminal Tribunal for Yugoslavia (ICTY) under Resolution 827 of 1993. The creation of the International Criminal Tribunal for Rwanda (ICTR) followed a similar procedure.
However, after six years of operation and the submission of ten distinct reports to the Security Council, Resolution 2697 of 2023 was passed, stipulating that the UNITAD mission could conclude upon Iraq's request and could be renewed for only one additional year, without provision for extension. It is crucial to highlight that no member of Daesh has faced charges in Iraq for international crimes. This absence of legal action stems from the lack of legislation within the country specifically addressing international crimes. Regrettably, UNITAD was unsuccessful in urging Iraqi authorities to enact such legislation.
The pressing question now is: what fate awaits the documents and testimonies amassed by UNITAD over the years? How will they be utilized by Iraqi and international courts? It appears that Iraq intends to classify these documents as national assets, thereby restricting their use by third-party countries without its explicit consent. This approach signifies Iraq's endeavor to redefine its operational ties not only with UNITAD but also with other UN authorities stationed within its borders.

Redefining the relationship between Iraq and the UN
In contrast to instances where the United Nations imposed international commissions on a country under Chapter VII of its Charter, it was Iraq itself that initiated the establishment of UNITAD and delineated its operational framework. To grasp the extensive history of relations between Iraq and the UN, one must trace back to 1990, the year of Iraq's occupation of Kuwait. Given the constraints of this study's scope, delving into the intricate details of this narrative would be challenging; therefore, we will provide select examples to illustrate key points.
The Iraqi scenario serves as an exceptionally rich permanent laboratory within UN practice, encompassing a spectrum from military and economic sanctions to humanitarian intervention and specific political missions. In the aftermath of the Kuwait War of 1991 and the imperative to address ensuing challenges and disarm Iraq, the United Nations established two commissions. The first, the "United Nations Special Commission" (UNSCOM), operated from 1991 to 1999. Subsequently, the "United Nations Monitoring, Verification and Inspection Commission" (UNMOVIC) took over from 1999 to 2007. Notably, these initiatives were implemented against the wishes of the Iraqi authorities at the time. Additionally, the "United Nations Compensation Commission" (UNCC) was imposed on Iraq from 1991 until 2022. Over the course of this 31-year span, more than $52 billion in compensation for victims of the Kuwait War (1990-1991) were disbursed and deducted from the Iraqi budget. These compensations were allocated to individuals, companies, and states of various nationalities affected by the conflict.
These examples underscore the United Nations' historical ability to impose diverse sanctions on Iraq, leading the country to adopt a reactive stance towards them. In a formal communication to the UN, the Iraqi foreign minister explicitly advocates for the termination of the UNITAD mission within a year. Furthermore, the minister urges the United Nations not to share UNITAD-obtained documents with third countries seeking to prosecute Islamic State fighters. Such demands not only reflect Iraq's lack of trust in UNITAD but also indicate the mission's operation under Iraqi oversight. Responding to this communication, UN Security Council Resolution 2697 of 2023 mandates that UNITAD may only disseminate these documents to third states with Iraq's consent. It is evident that Iraq seeks to designate the documents collected by UNITAD as national assets for utilization within Iraqi courts.
In light of Iraq's response to the UN, there may arise calls for the discontinuation of the "United Nations Assistance Mission in Iraq" (UNAMI). Established in 2003 at Iraq's behest following the Anglo-American invasion and the downfall of Saddam Hussein's regime, UNAMI has been tasked with multiple objectives aimed at fostering stability and democracy in Iraq. Consequently, UNAMI has remained actively engaged across various domains of Iraqi political and legal spheres for over two decades.
However, it is particularly since the latest Security Council resolution regarding the renewal of the UNAMI mandate in 2023 that there are indications suggesting Iraq may seek to redefine its relationship with the UN. This new resolution mandates an independent strategic review, conducted in consultation with the Iraqi government, to assess the threat to peace and security in the country and to review the mandate of UNAMI. Consequently, the entire thirty-year presence of the UN in Iraq could be jeopardised, notwithstanding the persistent instability in the country, the presence of Daesh, and the ongoing conflict between Iraq and the Iraqi Kurdistan region.

Towards the end of the UN presence in Iraq
Several factors contribute to the ongoing presence of UN entities in Iraq. Notably, this involvement includes facilitating electoral processes, supporting efforts to manage contested internal borders, and crucially, fostering dialogue between the Iraqi government and the Kurdistan Regional Government. Furthermore, UN efforts extend to aiding the return of displaced persons, reconstructing areas devastated by Daesh, and enhancing the protection of vulnerable populations such as women and children.
In response to the protracted presence of UN and foreign entities in Iraq spanning over three decades, a policy emphasizing the restoration of sovereignty has emerged within the federal government in Baghdad. This stance increasingly scrutinizes the presence of foreigners, including the United Nations. Within the scope of this study, we will delve into a key aspect of this sovereign policy: the nationalization of trials involving ISIS fighters.

The emergence of Iraqi sovereigntist policy
Since 1991, Iraq has grappled with significant challenges to its sovereignty. During the period spanning from 1991 to 2003, the country faced severe economic sanctions imposed by the UN. Additionally, a humanitarian intervention was initiated in the Iraqi Kurdistan region under UN auspices. These factors collectively undermined Iraq's ability to exercise full economic, political, and legal sovereignty as a state. The situation was further compounded in 2003 when Iraq fell under the control of a strict military and political regime imposed by various countries, most notably the United States and Iran. The enduring influence of these interventions on matters of Iraqi national jurisdiction remains palpable to this day.
Presently, in Iraq, proponents of the sovereignty restoration policy coalesce under the "State Administration Coalition", spearheaded by Prime Minister Mohammed Shia al-Sudani. The term "State administration" serves as a synonymous expression for "sovereignty", as governance has historically represented the core function of any government worldwide. The coalition's decision not to adopt the title "Sovereignty Coalition" is primarily aimed at avoiding confusion with another Sunni group already bearing that name within the current government. Nevertheless, Iraqi leaders recognize that "sovereignty" embodies not merely a term but a foundational principle, a framework of thought, an ongoing endeavour, and a steadfast aspiration.
At the core of Iraqi leaders' agenda lies the restoration of Iraqi sovereignty. This aspiration was particularly prominent during Nouri al-Maliki's tenure from 2006 to 2014, notably following the signing of the agreement between Iraq and the United States in 2008, which led to the withdrawal of US troops. However, this trajectory was interrupted when the Islamic State occupied significant portions of Iraqi territory, prompting Iraq to reluctantly accept the return of the international coalition against ISIS.
Reflecting this sovereigntist perspective, on 5 January 2020, in response to US attacks targeting Qassem Soleimani and Abu Mahdi al-Muhandis, the majority of the Iraqi Parliament demanded the withdrawal of all foreign military presence in Iraq and the restoration of Iraqi sovereignty. Another indicator of Iraq's sovereigntist policy direction occurred on 29 April 2023, when the Federal Supreme Court, equivalent to the French Constitutional Council, declared the 2012 agreement between Iraq and Kuwait is unconstitutional. This bilateral agreement, unilaterally annulled by the Supreme Court, signifies the Court's call for the restoration of Iraqi sovereignty, disregarding Iraq's prior commitment to Kuwait under the 2012 agreement.
Hence, one may have the impression that this sovereigntist policy sometimes leads to excesses: at the local level, leaders in Baghdad exhibit anti-federal tendencies, advocating for stringent centralization. This stance works counter to the interests of the sole federated region of Iraq, Iraqi Kurdistan, by curtailing its share of the federal budget. The discontinuation of sending UN representatives to Iraq poses significant risks for the Kurdistan region and other Iraqi communities. Since 2003, the UN has played a crucial role as an observer of Iraqi affairs and as a mediator in the conflict between Baghdad and Erbil. Its presence serves as a safeguard for maintaining the Kurdistan region's status, as numerous internal issues in Iraq have been intertwined with the UN Security Council's agenda since 2003.
While Iraqi sovereigntist policy is domestically characterised by a trend toward centralisation, its international expression involves a practice of nationalising issues. This is evident in the treatment of matters like genocide, typically of international concern, being localised and brought under national jurisdiction. In essence, it represents a robust reaction against all foreign presence in Iraq, with the United Nations being the primary target, followed by other international entities.

Nationalisation of ISIS fighter trials
As indicated earlier, UNITAD's efforts against Islamic State leaders have been hindered by slow and incomplete progress, largely due to Iraq's lack of established procedures for prosecuting international crimes. Since its inception, there have been indications of a shift towards internalisation or nationalisation of the trial process for ISIS fighters. UNITAD has conducted its operations in coordination with and with the consent of the Iraqi government. For instance, before providing documents to third countries seeking to prosecute Islamic State leaders, UNITAD must first consult with Iraqi authorities, as previously mentioned.
Consequently, UNITAD operates under Iraqi influence. It was established at Iraq's request, and half of its members are Iraqi citizens. While Iraq could potentially benefit from UNITAD's six years of ongoing work, the country, with the agreement of the Security Council, appears to be leaning towards nationalisation rather than internationalisation of the trial process.
Throughout its history, Iraq has consistently approached international law and tribunals with caution. When referencing international obligations in its constitution and laws, the objective has often been more to shape the country's foreign policy than to adhere strictly to the constraints of international law. Iraq has seldom found itself before international courts, such as the International Court of Justice, the International Criminal Court, or arbitration bodies. It has actively avoided engaging with international judicial institutions, excluding texts in the treaties it ratified that could subject it to accountability before international courts.
In essence, rather than opting for the "internationalization" of issues like the genocide of the Yazidi Kurds — an approach that would be particularly relevant to the Yazidi question — Iraq seems inclined to "internalize" the matter, seeking to confine it solely to local Iraqi jurisdiction. The Iraqi Parliament is contemplating the possibility of enacting a new law to establish a different form of the "Iraqi High Criminal Court". The original Iraqi High Criminal Court, created to adjudicate Ba'athist leaders who held power between 1968 and 2003, had jurisdiction limited by rationae temporis and rationae personae considerations.
The Iraqi model of a national special tribunal appears poised for replication, especially upon scrutinising relevant resolutions. Previously, under the Security Council resolution in 2003, it was emphasised that "the former Iraqi regime must be held accountable for the crimes and atrocities that committed", acting under Chapter VII of the United Nations Charter, which urged all Member States to support actions toward achieving justice. However, this resolution remained silent on the specific mechanism for holding leaders of the former Iraqi regime accountable. In contrast, Resolution 2379, the foundational act of UNITAD, assigns a significant role to Iraqi authorities, particularly concerning the prosecution of ISIS. The Security Council thus demonstrates a preference for nationalising the trial of leaders by emphasising, in its resolution concerning the evidence collected by UNITAD, that such evidence "should be utilised in the context of criminal proceedings [...] conducted, in accordance with applicable international law, by competent national courts, with the competent Iraqi authorities being the primary recipients of such evidence".
In the case of Iraq, the Security Council appears to favour judicial proceedings conducted strictly at the national level, reminiscent of the approach taken in 2003. The potential pretext for the international community to avoid organising trials could be the application of the death penalty in Iraq. Given the socio-political context of the country, it is currently impractical for Iraqis to omit the death penalty from their penal code, particularly in cases involving ISIS fighters.
Establishing a national tribunal in Iraq without international oversight would give rise to numerous concerns. Iraqi authorities could exploit such a tribunal to settle scores with political opponents, particularly in Kurdistan and among Sunnis. Additionally, a trial addressing significant issues like genocide and international crimes would necessitate the involvement of judges, forensic investigators, international experts, and UN representatives at every stage. Furthermore, such a trial would confront a multinational organisation like ISIS.
UNITAD has furnished Iraq with extensive archives of documents and testimonies against ISIS leaders, marking the emergence of a new phase: the marginalisation of UNITAD and the UN in Iraq. Sovereignists may advocate for excluding the international presence of the UN, viewing it as wielding minimal influence on Iraqi soil. However, the ramifications of such exclusion could prove detrimental. Under these conditions, what will become of the evidence collected by UNITAD's investigation? Their fate remains uncertain, knowing that the Security Council conditions its use by courts in other countries on obtaining authorisation from the Iraqi government, granted on a case-by-case basis. The evidence was used, in the presence of UNITAD, by a court in Koblenz, Germany, in a case against a former ISIS member.
After the end of UNITAD's mandate, if Iraq refuses to grant evidence to a state wishing to initiate a trial against an ISIS member, could we not face a denial of justice?


This article originally was written for French Research Center on Iraq (CFRI).

Christian Ritscher, Special Adviser and Head of the UNITAD.