(OPINION) Five years after ISIS, also known as Daesh, unleashed genocide in Iraq, survivors and the families of the victims are still waiting for justice. At the recent Ministerial to Advance Religious Freedom, Nadia Murad, a survivor of Daesh genocide and a tireless advocate for the Yazidi community, has emphasized “the Yazidi community deserves justice for the atrocities they have endured … [the] genocide against Yazidis and other minorities.” The lack of justice sends the outrageous message that it is possible to get away with genocide. If we have learned anything from similar atrocities, it is that we cannot allow an atmosphere of impunity to flourish.

It must be emphasized that some Daesh fighters have been prosecuted for their atrocities, in Iraq and other countries. While the number of prosecutions is very small, even these proceedings cannot be regarded as unproblematic. The challenges surrounding the issue of justice can be summarized as: hardly any Daesh fighters having been brought to justice, the prosecutions being conducted predominately for terror-related offenses only and often conducted without due process and in violation of the rule of law. 

The number of prosecutions against Daesh fighters and complicit actors continues to be very low. This is true in countries where Daesh committed genocidal atrocities, like Syria and Iraq, but also in countries where Daesh fighters return to (so-called Daesh foreign fighters). In June 2017, the Council of Europe, in pursuance of a report by Pieter Omtzigt MP, collected data on prosecution of Daesh from all member states to the Council of Europe. The data revealed a large discrepancy between the numbers of Daesh foreign fighters returning to their home countries and numbers of those prosecuted. Further such data should be obtained in due course to explore whether the situation persists, or states have taken their responsibilities more seriously. 

Low prosecution and conviction rates are also apparent in other countries dealing with the issue of Daesh fighters. Nadia's Initiative advocates have expressed particular concern in relation to domestic prosecutions in Iraq and Syria and reports that “Daesh members held in Syria have been released and that fighters transferred to Iraq have been sentenced to death following rushed trials that exclude victims and do not comply with international fair-trial standards.” Indeed, the stories of Daesh fighters being sentenced to death in rushed trials and without the involvement of the victims are not new allegations. It is not possible, using such an approach, to ensure justice for the victims who are deprived of their day in court and the right to tell their stories. Neither is it possible to ensure the perpetrators will face responsibility for their crimes. Similarly, there are no visible traces of justice for future generations who will bear the weight of the missed opportunity for truth and justice in the Daesh trials.

Furthermore, Daesh fighters are predominately prosecuted for offenses other than genocide, crimes against humanity and war crimes, with terror-related offenses being the primary offense being used. Prosecution for terror-related offenses only undermines the severity of the crimes perpetrated. This will not do justice for the suffering of thousands of people. However, in the situation that one cannot establish a case for genocide, crimes against humanity or war crimes other offenses should indeed be considered and pursued. Apart from terror-related offenses, Daesh fighters must be prosecuted for their other crimes including “murder, kidnapping,… sale into or otherwise forced marriage, trafficking in persons, rape, sexual slavery and other forms of sexual violence, recruitment and use of children”, forced transfer of population, destruction of cultural heritage and much more. 

Lastly, as in the case of Iraq, the domestic courts may not be equipped to prosecute Daesh fighters for their atrocities. If this is the case, steps need to be taken to ensure that Iraqi courts are able to fulfill their duties. If this is either impossible or unlikely, international tribunals should assist. There is renewed interest in establishing an international tribunal to prosecute Daesh, as Germany, Norway and Sweden have been mapping the available options and possible support from other states. The importance of such an international tribunal should not be undermined, even if one is not fully content with previous tribunals. We need to learn from past mistakes and address them rather than abandon such an option altogether. 

A lot needs to be done to ensure that the Daesh fighters are prosecuted for their atrocities. The survivors must see justice being done during their lifetimes. Any other option is a failure on our behalf that will result in an atmosphere of impunity growing and bearing further fruit. 

Ewelina U. Ochab is a legal researcher and human rights advocate, PhD candidate and author of the book “Never Again: Legal Responses to a Broken Promise in the Middle East” and more than 30 UN reports. She works on the topic of persecution of minorities around the world. This piece was re-published from Forbes with permission.