29/51 Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Ben Emmerson

GE.15-09859 (E)



Human Rights Council Twenty-ninth session

Agenda item 3

Promotion and protection of all human rights, civil,

political, economic, social and cultural rights,

including the right to development

Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Ben Emmerson*

Summary

The present report is the fourth annual report submitted to the Human Rights

Council by the Special Rapporteur on the promotion and protection of human rights and

fundamental freedoms while countering terrorism, Ben Emmerson.

In section II, the Special Rapporteur lists the key activities he undertook from 17

December 2013 to 31 December 2014 and, in section III, he examines the humans rights

challenges posed by the fight against the Islamic State in Iraq and the Levant and makes

recommendations to States.

* Late submission.

Contents

Paragraphs Page

I. Introduction ............................................................................................................. 1 3

II. Activities of the Special Rapporteur ....................................................................... 2 3

III. Human rights in the fight against the Islamic State in Iraq and the Levant ............. 10–59 3

A. Background ..................................................................................................... 13–20 4

B. Legal framework ............................................................................................. 21–23 7

C. Human rights and humanitarian law violations attributable to the

Islamic State in Iraq and the Levant .............................................................. 24–31 7

D. Accountability................................................................................................. 32–34 11

E. Response of the Security Council ................................................................... 35–45 12

F. Impact on civilians of the military response to the

Islamic State in Iraq and the Levant ............................................................... 46–58 15

G. Role of the Security Council in authorizing the use of force .......................... 59 19

IV. Conclusions and recommendations ........................................................................ 60–63 20

I. Introduction

1. The present report is submitted to the Human Rights Council pursuant to its

resolution 22/8. In the report, the Special Rapporteur lists the key activities he undertook

from 17 December to 31 December 2014, focuses on the humans rights challenges posed by

the fight against the Islamic State in Iraq and the Levant and makes recommendations.

II. Activities of the Special Rapporteur

2. On 13 February 2014, the Special Rapporteur participated as a speaker in a panel

discussion entitled “Debating Kadi II: United Nations Ombudsperson v. judicial review in

Security Council sanctions decision-making” at the London School of Economics.

3. From 23 to 25 February, the Special Rapporteur participated in an expert seminar on

the theme “The right to privacy in the digital age”, hosted by the Permanent Missions of

Austria, Brazil, Germany, Liechtenstein, Mexico, Norway and Switzerland and facilitated

by the Geneva Academy of International Humanitarian Law and Human Rights, in Geneva.

4. On 11 March, the Special Rapporteur presented to the Human Rights Council his

report on the use of remotely piloted aircraft, or drones, in extraterritorial lethal counter-

terrorism operations, including in the context of asymmetrical armed conflict, and its

impact on civilians (A/HRC/25/59). He also held an interactive dialogue with the Council

on his visits to Burkina Faso (A/HRC/25/59/Add.1) and Chile (A/HCR/25/59/Add.2).

5. On 12 March, the Special Rapporteur participated as a panellist in a side event on

the topic “Human rights and drones” and held a press conference during the twenty-fifth

session of the Human Rights Council.

6. On 22 September, during the twenty-seventh session of the Human Rights Council,

the Special Rapporteur participated in a panel discussion on the topic “Ensuring use of

remotely piloted aircraft or armed drones in counter-terrorism and military operations in

accordance with international law, including international human rights and humanitarian

law”. The panel discussion was held pursuant to Human Rights Council resolution 25/22.

7. On 30 September, the Special Rapporteur participated in a hearing on the topic

“Drones and targeted killings: the need to uphold human rights” before the Committee on

Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe,

in Strasbourg, France.

8. On 2 October, the Special Rapporteur participated in a panel discussion on the

securitization of public policy in a post-9/11 world, organized by Amnesty International in

London.

9. On 23 October, the Special Rapporteur presented to the General Assembly his report

on the use of mass digital surveillance for counter-terrorism purposes and the implications

of bulk access technology for the right to privacy under article 17 of the International

Covenant on Civil and Political Rights (A/69/397).

III. Human rights in the fight against the Islamic State in Iraq and the Levant

10. In recent years, the Islamic State in Iraq and the Levant (ISIL) has emerged as a key

actor in the Middle East and, reportedly, beyond. One of many radical groups that found

fertile ground in the violent environments created by decades of instability in Iraq and the

more recent conflict in the Syrian Arab Republic, it has in the past two years become a

well-organized, dominant armed force controlling large swathes of populated areas in both

Iraq and the Syrian Arab Republic.1 A self-proclaimed caliphate, it attracts a significant

number of individuals from around the world to join its ranks. Deeply rooted in sectarian

distrust and an absence of inclusive, participatory processes,2 ISIL has become a symbol of

brutality, extreme violence, cruelty and terror, all of which it has imposed on those living

under its rule.

11. There is evidence that ISIL has committed serious violations of international law,

including genocide, crimes against humanity, war crimes and serious violations of human

rights law. The Security Council has determined that ISIL represents a threat to

international peace and security, has unequivocally condemned the gross and systematic

abuses of human rights by ISIL and has stressed the need to bring perpetrators, including

foreign terrorist fighters, to justice, but has failed to take more decisive action or to refer the

situation to the International Criminal Court.

12. The United Nations human rights bodies, including the Human Rights Council, the

Office of the United Nations High Commissioner for Human Rights (OHCHR) and the

treaty bodies, as well as special procedures mandate holders, have addressed various

aspects of the situation in Iraq and the Syrian Arab Republic, including ISIL. The present

report aims to contribute to this work by addressing the human rights issues linked to the

actions carried out by ISIL, the adequacy of the response of the Security Council and the

civilian impact of the military action taken by States engaged in combating ISIL.3

A. Background

13. The origins of ISIL can be traced back to the immediate aftermath of the conflict in

Iraq in 2004, when Al-Qaida in Iraq was established by Abu Musab al-Zarqawi. Sectarian,

ethnic and religious discrimination had been rife in Iraq. However, the new Government

and the “de-Baathification” of public service were clear indications that despite new power

arrangements, divides along sectarian lines would continue in the post-conflict context.

This was heavily exploited by Al-Qaida in Iraq and by its successor, the Islamic State of

Iraq (ISI), which was founded following the death of Al-Zarqawi in 2006.

14. In 2010, ISI appointed Abu Bakr al-Baghdadi as its new leader. Under his

leadership, ISI regrouped and became increasingly organized. In 2011, with the Syrian

Arab Republic descending into violence, ISI sent a number of operatives to join local

radical militants in the Syrian Arab Republic. The Jabhat al-Nusra armed group was

formed. In April 2013, Al-Baghdadi announced the merger of ISI and Jabhat al-Nusra into

the Islamic State in Iraq and the Levant. Following a power struggle between the leader of

Jabhat al-Nusra and the leader of ISI, the two groups formally split, with Jabhat al-Nusra

affiliating itself to Al-Qaida, and the formal disavowal of ISIL by Al-Qaida. Abu Bakr al-

Baghdadi became the leader of the new armed group, ISIL, which gained control of

1 See the report of the Independent International Commission of Inquiry on the Syrian Arab Republic

entitled “Rule of terror: living under ISIS in Syria”, para. 5.

2 See the report of the Office of the United Nations High Commissioner for Human Rights on the

human rights situation in Iraq in the light of the abuses committed by the so-called Islamic State in

Iraq and the Levant and associated groups (A/HRC/28/18), para. 2.

3 The Special Rapporteur wishes to express his sincere thanks to Anne Charbord, Senior Legal Adviser

to the Special Rapporteur on the promotion and protection of human rights while countering

terrorism, for her contribution to the preparation of the present report; and to Chris Woods, who

contributed factual research for the present report.

territory in the north of the Syrian Arab Republic and Iraq previously controlled by ISI and

Jabhat al-Nusra.4

15. Since the inception of ISIL, its priority has been the construction of a so-called

State.5 In pursuance of this goal, on 29 June 2014, the leader of ISIL renamed the group the

“Islamic State” and declared it a caliphate. ISIL now controls territory in Iraq and the

Syrian Arab Republic in which an estimated 8 million individuals live. At the time of

writing, in Iraq, ISIL controlled swathes of territory in the provinces of Anbar, Ninewa,

Salah al-Din, Kirkuk, Diyala, Babil and Erbil, with Iraqi forces making gains in several

areas, notably recapturing Tikrit in April 2015. In the Syrian Arab Republic, ISIL

controlled large swathes of territory in the governorates of Aleppo, Ar-Raqqah, Idlib, Al-

Hasakah and Dayr Az-Zawr. It has also been reported that ISIL directly controls territory in

other countries, including Libya.6 In addition, it has been reported that several groups

around the globe have pledged allegiance to ISIL,7 and in some cases, there has been an

“extension” of the territory of the caliphate.8

16. ISIL has consolidated its financial capacity by expanding its control over natural

resources in both the Syrian Arab Republic and Iraq, notably by seizing oilfields in both

countries. It has also been alleged that ISIL seized the reserves of the Iraqi Central Bank

held in Mosul in June 2014. ISIL has reportedly received substantial financial support from

foreign States, wealthy individuals and charitable organizations.

17. The military capacity of ISIL has continued to grow, largely as a result of looting

weapons and military hardware from other Syrian armed belligerents and from the Iraqi

army after its successful military campaign in Iraq. It is believed that arms and support

provided to other more moderate armed groups have ultimately fallen into the hands of

ISIL. ISIL has also purchased military hardware through local markets.

18. The expansion of ISIL has been helped by the inflow of foreign fighters. While

figures vary, it is possible that more than 20,000 foreigners have joined the ranks of non-

State armed groups in Iraq and the Syrian Arab Republic,9 from at least 80 countries from

4 See “Rule of terror”, para. 5; United Nations Assistance Mission for Iraq (UNAMI)/OHCHR, “Report

on the Protection of Civilians in the Non International Armed Conflict in Iraq: 5 June–5 July 2014”,

footnote 3; Report of the Analytical Support and Sanctions Monitoring Team on The Islamic State in

Iraq and the Levant (S/2014/815), paras. 1–2, 6–8 and 11–17. See also Patrick Cockburn, The Rise of

Islamic State: ISIS and the New Sunni Revolution (London and New York, Verso Books, 2015); and

Jessica Stern and J.M. Berger, ISIS: The State of Terror (London, William Collins, 2015).

5 See Erin Marie Saltman and Charlie Winter, Islamic State: The Changing Face of Modern Jihadism,

(Quilliam, 2014) and Stern and Berger, ISIS: The State of Terror (chap. 8).

6 In Barqa (Cyrenaica) in the east, Fezzan in the south, and Tripolitania in the west. See Eric Schmitt

and David D. Kirkpatrick, “Islamic State sprouting limbs beyond its base”, New York Times, 14

February 2015. Available from www.nytimes.com/2015/02/15/world/middleeast/islamic-state-

sprouting-limbs-beyond-mideast.html?_r=2. See also Human Rights Watch, “Libya: Extremists

Terrorizing Derna Residents”, 27 November 2014. Available from

www.hrw.org/news/2014/11/27/libya-extremists-terrorizing-derna-residents.

7 Boko Haram (Nigeria), Abu-Sayyaf (Philippines), Ansar Bait al-Maqdis (Egypt) and Ansar al-Sharia

(Yemen), among others, have all reportedly pledged allegiance to the “Islamic State”.

8 See “Rule of terror” para. 17. On 13 November 2014, the leader of ISIL announced the expansion of

the Islamic State to “new lands” (Saudi Arabia, Yemen, Egypt, Libya and Algeria) following pledges

made to him by various groups active in these territories. ISIL created new provinces in these

countries and appointed “governors”. See Stern and Berger, ISIS: The State of Terror.

9 See S/2014/815, para. 14. See also Peter R. Neumann, director of the International Centre for the

Study of Radicalisation and political violence (ICSR), “Foreign fighter total in Syria/Iraq now

exceeds 20,000; surpasses Afghanistan conflict in the 1980s”, 26 January 2015.

all parts of the globe.10 It is reported that most have joined the ranks of ISIL owing to its

perceived success,11 the ease with which one can join and its online presence and

propaganda.12 The proclamation by its leader of ISIL as a caliphate13 has reportedly

galvanized support from radicalized individuals and groups around the world. Individuals

join ISIL not only to fight, but also to assist in the building of a “State”, with ISIL

promoting a sense of religious duty,14 attracting individuals from diverse backgrounds.15

Many of these recruits are reportedly experienced fighters, or have the ability to attract

others through propaganda.16 Foreign nationals play a prominent role in the religious,

educational and judiciary “systems” of ISIL, which further radicalizes communities under

its authority.17 It has been reported that the military leadership structures of ISIL are largely

dominated by foreign fighters.18

19. ISIL has consolidated its control over the populations in the territory it holds. By

taking advantage of the instability in both Iraq and the Syrian Arab Republic,19 its ideology

and financial capabilities have found resonance among socially and economically desperate

communities. It has exploited the existing social fragmentations among sectarian and tribal

lines to secure a new network of alliances.20 Most importantly, through the use of tactics

that instil terror in the population, including the calculated use of public brutality and

indoctrination, as well as the establishment of monopolistic control over basic services,

ISIL has ensured the submission of the communities under its control.21

20. ISIL is an organized group22 that functions under a formalized command with an

essentially vertical and hierarchical command structure.23 It is composed of an armed force,

an administrative wing and a religious wing, all under the control of the self-proclaimed

caliph, Al-Baghdadi.24 It operates a harsh, rigid administrative system that is based on

provinces and comprises the Al-Hisbah morality police, the general police force, courts and

entities managing recruitment, tribal relations and education.25

10 See Richard Barrett, Foreign Fighters in Syria (New York, The Soufan Group, 2014). See also

S/2014/815, para. 87.

11 See S/2014/815, para. 14.

12 See Saltman and Winter, Islamic State.

13 See “It ain’t half hot here, mum: why and how Westerners go to fight in Syria and Iraq”, The

Economist, 30 August 2014.

14 See Stern and Berger, ISIS: The State of Terror.

15 See “Rule of terror”, paras. 17 and 29. See also Stern and Berger, ISIS: The State of Terror, which

notes that in an article in Dabiq, the online English-language magazine of ISIL, it asked for doctors,

engineers, scholars and people with military, administrative and service expertise.

16 See Saltman and Winter, Islamic State.

17 See the report of the Independent International Commission of Inquiry on the Syrian Arab Republic

(A/HRC/28/69), para. 127.

18 See “Rule of terror” paras. 12 and 13.

19 See S/2014/815, para. 8.

20 See “Rule of terror”, para. 9.

21 Ibid., para. 1, and A/HRC/28/69, para. 35.

22 See British Broadcasting Corporation, “UK paying experts to build Islamic State war crimes case”, 3

September 2014. Available from www.bbc.co.uk/news/world-middle-east-29052475.

23 See “Rule of terror”, para. 13.

24 See S/2014/815, paras. 13–17.

25 See A/HRC/28/69, para. 36.

B. Legal framework

21. The Special Rapporteur has previously recalled the criteria for the existence of

armed conflicts of a non-international character,26 namely the intensity and protraction of

the conflict and the degree of organization of the parties. It is generally accepted that ISIL

is a sufficiently organized non-State armed group to be considered as a party to the non-

international armed conflicts in Iraq and the Syrian Arab Republic,27 and that the situations

in both countries amount to armed conflicts of a non-international character.28

22. International humanitarian law applicable to armed conflicts of a non-international

character is applicable in both Iraq and the Syrian Arab Republic.29 All parties to the

conflict, including ISIL, are therefore bound by common article 3 of the Geneva

Conventions, which establishes minimum standards concerning the treatment and

protection of civilians, those no longer actively participating in the hostilities and civilian

objects. They are also bound by the customary law norms contained in the protocol

additional to the Geneva Conventions of 12 August 1949 relating to the protection of

victims of non-international armed conflicts.

23. In addition, it is now well established that in a situation of armed conflict,

international human rights law continues to apply, and both international human rights law

and international humanitarian law frameworks will act in a complementary and mutually

reinforcing way.30 Both Iraq and the Syrian Arab Republic are parties to the major human

rights treaties and a number of optional protocols.31

C. Human rights and humanitarian law violations attributable to the

Islamic State in Iraq and the Levant

24. The Independent International Commission of Inquiry on the Syrian Arab Republic,

established on 22 August 2011 by Human Rights Council resolution S-17/1, the United

Nations Assistance Mission for Iraq and OHCHR,32 as well as a number of non-

26 See the Report of the Special Rapporteur on the promotion and protection of human rights and

fundamental freedoms while countering terrorism (A/68/389), para. 63. See also International

Committee of the Red Cross, “How is the term ‘armed conflictʼ defined in international humanitarian

law?”, opinion paper, March 2008. Available from www.icrc.org/eng/assets/files/other/opinion-paper-

armed-conflict.pdf. See also International Tribunal for the Prosecution of Persons Responsible for

Serious Violations of International Humanitarian Law Committed in the Territory of the Former

Yugoslavia since 1991, case No. IT-94-1-A, Prosecutor v. Duško Tadic, para. 70, and case No. IT-04-

84-T, Prosecutor v. Ramush Haradinaj et al, paras. 49 and 60.

27 See A/68/389, para. 66.

28 For Iraq, see A/HRC/28/18, para. 13. For the Syrian Arab Republic, see A/HRC/28/69, para. 1. In his

report on the implementation of Security Council resolutions 2139 (2014) and 2165 (2014), the

Secretary-General referred to a “complex, protracted regional conflict” (see S/2014/756, para. 58).

29 Neither Iraq nor the Syrian Arab Republic have acceded to the protocol additional to the Geneva

Conventions of 12 August 1949, and relating to the protection of victims of non-international armed

conflicts. They are also not parties to the Rome Statute of the International Criminal Court.

30 For an overview of the legal framework applicable in the Syrian Arab Republic, see the report of the

independent international commission of inquiry on the Syrian Arab Republic (A/HRC/21/50), annex

2.

31 For a full list, for Iraq, see UNAMI/OHCHR, “Report on the Protection of Civilians in the Non

International Armed Conflict in Iraq: 5 June–5 July 2014”, p. 6; for the Syrian Arab Republic, see

A/HRC/21/50, annex 2, para. 8.

32 See A/HRC/28/18 and UNAMI/OHCHR “Report on the Protection of Civilians in the Non

International Armed Conflict in Iraq: 5 June–5 July 2014”.

governmental organizations, have extensively investigated and documented grave and

systematic violations of international law by ISIL that could amount to genocide, crimes

against humanity, war crimes and gross human rights violations,33 including widespread

and systematic attacks on the civilian population.34

25. It has been reported that ISIL has specifically targeted religious and ethnic groups in

both Iraq and the Syrian Arab Republic and has committed acts of violence against civilians

because of their affiliation or perceived affiliation to an ethnic or religious group.35 Where

ISIL has occupied areas with diverse religious and ethnic communities, minorities36 have

been forced to assimilate or flee, ISIL imposing disciplinary sanctions, destroying religious

sites and carrying out systematic expulsions. In Iraq, there are reports of a pattern of

violence against the Yezidis and, specifically, of men being separated from women and

young children, then taken to ditches and summarily executed.37 It has been reported that at

least 700 men were killed in August 2014 after being rounded up, separated from the

women and forced to convert. Those who refused were taken to a farm and, after being

made to hand over their possessions, were ordered to lie face down on the ground and were

filmed by members of ISIL before being shot several times.38 These acts may, if confirmed,

amount to genocide39 as defined in the Convention on the Prevention and Punishment of the

Crime of Genocide. Other acts, including summary executions,40 abductions on a mass

scale41 and forced conversions, may amount to crimes against humanity and war crimes. In

the Syrian Arab Republic, it has been reported that ISIL may have committed a crime

against humanity by forcibly displacing the Kurdish population in Ar-Raqqah

governorate.42

26. The alleged responsibility of ISIL for unlawful killings, including massacres,43 has

also been reported.44 Summary executions and enforced disappearances of individuals ISIL

views as challenging its dominance or opposing it, through a policy of declaring them to be

heretics or infidels in order to justify the attacks, has also been widely documented in the

Syrian Arab Republic45 and in Iraq.46 Individuals targeted include police officers, public

servants, members of parliament, tribal and religious leaders, election candidates and hors

de combats fighters. Sometimes, individuals are found guilty by ISIL “courts” before being

executed,47 in the absence of any due process. In an effort to control the flow of information

and limit freedom of expression, journalists and human rights defenders have been

33 See A/HRC/28/18, para. 76, and “Rule of terror”, paras. 74, 77 and 78.

34 See, for example, A/HRC/28/69, para. 75.

35 See A/HRC/28/18, para. 16.

36 Ibid., para. 16, and “Rule of terror”, paras. 24–31.

37 See A/HRC/28/18, para. 18.

38 Ibid., para. 19.

39 Ibid., para. 16.

40 Ibid., paras. 19 and 28.

41 Ibid., paras. 16–20.

42 See “Rule of terror”, para. 29.

43 In October 2013, the Commission of Inquiry adopted the following working definition of a massacre:

“an intentional mass killing of civilians not directly participating in hostilities, or hors de combat

fighters, by organized armed forces or groups in a single incident, in violation of international human

rights or humanitarian law”. See A/HRC/28/69, annex II, para. 1.

44 See A/HRC/28/69, annex II, paras. 21–30.

45 Ibid., annex II, paras. 21–30 and 68–79. See also “Rule of terror”, para. 32.

46 See, for example, A/HRC/28/18, paras. 29–34.

47 See UNAMI/OHCHR, “Report on the Protection of Civilians in Armed Conflict in Iraq:

11 September–10 December 2014”, p. 10.

summarily executed, abducted, made to disappear and tortured.48 There are also scores of

allegations of torture and ill-treatment of individuals in detention centres, as well as

summary punishments for theft, watching football matches, smoking, improper attire, not

attending Friday prayers and having tattoos,49 in breach of ISIL edicts.

27. ISIL has been particularly brutal and discriminatory against women. Information

collected indicates that, in addition to confining women largely to their homes and dictating

what they must wear, with whom they may socialize and where they may work,50 ISIS

elements have committed sexual and gender-based violence, which may constitute war

crimes and amount to crimes against humanity. It is reported that Yezidi women in

particular have been the target of killings, widespread and systematic enslavement,

including sexual slavery, and rape; women have also been sold and forcibly transferred51

from northern Iraq to areas under ISIL control in the Syrian Arab Republic, where many

remain in captivity.52 There are also credible reports about the rape of girls as young as 6

years old.53 The targeting of homosexual men on the basis of their sexuality has also been

highlighted.

28. The abuse and violence perpetrated by ISIL against children has been widely

documented.54 This includes summary executions, arbitrary detention, torture, cruel and

inhuman treatment and kidnapping. In a particularly disturbing development, education is

being used as a tool for indoctrination.55 Children are reportedly made to watch videos of

beheadings56 and mass executions to desensitize them to forms of violence employed by

ISIL. The existence of “cub camps” in which children are taught to use weapons and

trained to be deployed as suicide bombers has been reported,57 and children have been used

as executioners. It is also reported that children as young as 8, and possibly 5, have been

trained and used in active combat roles. If true, this would constitute a war crime and a

violation of the Optional Protocol to the Convention on the Rights of the Child on the

involvement of children in armed conflict.

29. In summary, ISIL has engaged in widespread and systematic human rights and

humanitarian law violations of the most serious kinds.58 Such violations have been most

thoroughly documented in connection with ISIL actions in the Syrian Arab Republic by the

Independent International Commission of Inquiry, but have also been widely reported by

reliable sources in Iraq. The methods used include public beheadings, shootings, stoning,59

amputations and lashings, with individuals urged to attend executions, following which the

corpses are placed on public display, often on crosses, for up to three days.60 In addition,

victims’ heads have been placed on spikes alongside park railings, in squares and on the

48 See “Rule of terror”, paras. 39–42, and A/HRC/28/69, paras. 82–83.

49 See A/HRC/28/18, para. 49, and A/HRC/28/69, annex 2, paras. 67–91 and 159.

50 See “Rule of terror”, paras. 47 and 48, and A/HRC/28/69, para. 187.

51 See A/HRC/28/18, paras. 35–43.

52 See A/HRC/28/69, paras. 185–188.

53 See A/HRC/28/18, para. 40.

54 See “Rule of terror”, paras. 58–62; A/HRC/28/69, paras. 205–213; and A/HRC/28/18, paras. 44–46.

55 See “Rule of terror”, para. 60.

56 See A/HRC/28/69, para. 207.

57 Ibid., para. 70.

58 See “Rule of terror”, para. 77.

59 Ibid., para. 32.

60 Ibid., para. 36. See also the reports of the Independent International Commission of Inquiry on the

Syrian Arab Republic (A/HRC/27/60) paras. 30–38 and 65–74, and A/HRC/25/65, paras. 25–33 and

57–61. In each case, it would be necessary to determine that the victims were civilians and not

members of other armed groups.

roundabouts of the larger towns.61 The displaying of mutilated bodies serves as a warning to

the local population of the consequences of failure to submit to the armed group’s

authority,62 to deter those who may oppose the group’s rule and to spread terror among the

population.63 The attacks perpetrated by ISIL on churches and historic monuments that do

not represent military targets are apparently committed to enforce religious and ideological

hegemony and to instil fear in minority populations.64 The systematic and targeted

assassination and abduction of community, political and religious leaders, government

employees, education professionals, journalists and health workers65 also appear to be

aimed at demonstrating the supremacy of ISIL in areas it controls. The brutal nature and

overall scale of abuses appears to be intended to reinforce the group’s absolute monopoly

on political and social life and to enforce compliance and conformity among communities

under its control.66 The result is that civilians who remain in ISIL-controlled areas live in a

state of constant and almost unimaginable fear.67

30. Some still argue that human rights, as a body of law, can only bind States, and

cannot or should not apply to non-State armed groups. However, as the Special Rapporteur

has previously highlighted in other contexts, a central tenet of international human rights

law is that it must keep pace with a changing world. Human rights apply at all times,

inherently belong to individuals and are key to individual dignity. Increasingly, non-State

armed groups control parts of territories in which populations live. This is the case with

ISIL, which now controls large swathes of territory in which millions of individuals live; it

has declared itself a “State”, and runs both a civil and a military administration, including

the establishment of a “court” system. The threshold for ISIL to be bound by human rights

obligations has clearly been met.68 This means, at a minimum, that ISIL is bound under

international law to respect core human rights obligations, such as the right to life, the

absolute prohibition of torture, cruel, inhuman and degrading treatment, the prohibition of

slavery and the prohibition of enforced disappearance, as well as the right to freedom of

thought, conscience and religion.

31. In addition, where ISIL engages in violations that are unrelated to the conflict and

not direct consequences of it, the governing legal framework should be international human

rights law. In practice, this means that ISIL is legally bound to respect freedom of

expression, freedom of assembly and freedom of movement. These rights should be

protected without discrimination on any of the grounds prohibited by international law. The

right to a fair trial should also be guaranteed. In areas of substantive overlap between

international human rights and international humanitarian law, the principles that provide

assistance in determining which framework is applicable are those of lex specialis69 and

effective control: the more effective control ISIL has over a territory or individuals, the

61 See “Rule of terror”, paras. 33–35.

62 Ibid., para. 33.

63 Ibid., para. 21.

64 Ibid., para. 31.

65 See UNAMI/OHCHR “Report on the Protection of Civilians in Armed Conflict in Iraq: 6 July–10

September 2014”, pp. 5–8.

66 See “Rule of terror”, para. 30.

67 Ibid., para. 19.

68 See the statement by the President of the Security Council on the situation in Iraq (S/PRST/2014/20),

p. 2, and Security Council resolution 2170 (2014), para. 3.

69 See “Fragmentation of international law: difficulties arising from the diversification and expansion of

international law – Report of the Study Group of the International Law Commission” (A/CN.4/L.682

and Corr.1), paras. 56–57.

greater is the extent to which human rights law will constitute the appropriate legal

framework.70

D. Accountability

32. As the Security Council recalled in its resolution 2170 (2014), accountability for all

gross or serious violations of international human rights law and international humanitarian

law is essential to ensure justice, provide redress to the victims and prevent future

violations. The Governments of Iraq and the Syrian Arab Republic bear primary

responsibility for protecting persons under their jurisdiction and ensuring accountability for

the commission of grave crimes. This implies a duty to take action so that violations are

prevented, stopped and not repeated; to investigate alleged violations effectively, promptly,

thoroughly and impartially and, where required, to bring alleged perpetrators to justice in

accordance with domestic and international law; and to provide adequate remedy and

redress to victims. Domestic courts in Iraq and the Syrian Arab Republic have jurisdiction

over all violations committed in their territories, whether by nationals or foreigners, and

they should exercise their jurisdiction where it is possible to do so.

33. However, in the light of the operational obstacles to the effective exercise of

jurisdiction, and bearing in mind concerns regarding respect for the right to a fair trial that

have been expressed regarding the judicial systems in both Iraq71 and the Syrian Arab

Republic,72 the involvement of the International Criminal Court or the creation of an ad hoc

international tribunal to investigate and prosecute the crimes allegedly committed by, inter

alia, ISIL must be regarded as a priority.73 The Special Rapporteur joins the call made by

the United Nations High Commissioner for Human Rights, the Independent International

Commission of Inquiry on the Syrian Arab Republic and others for the involvement of the

International Criminal Court regarding the situation in both Iraq and the Syrian Arab

Republic. The failure of the Security Council to refer the situation in the Syrian Arab

Republic to the Court has contributed to crimes continuing to be committed unabated.74 As

neither Iraq nor the Syrian Arab Republic are parties to the Rome Statute, the Court has no

territorial jurisdiction over crimes committed on their soil. The Prosecutor of the Court has

reviewed those cases in which the Court could exercise personal jurisdiction over alleged

perpetrators who are nationals of a State party to the Rome Statute, but has said that the

prospects of the Court investigating and prosecuting those with most responsibility in the

ISIL leadership would be remote.75 In the absence of a Security Council resolution referring

the situation to the Court, the Special Rapporteur calls on the Governments of Iraq and the

70 See International legal protection of human rights in armed conflict (United Nations publication,

Sales No. E.11.XIV.3), p. 63. On the alleged violations, see, for example, the reports of the

Independent International Commission of Inquiry on the Syrian Arab Republic (A/HRC/21/50),

para. 134, and A/HRC/25/65, para. 129; “Rule of terror”, para. 20; UNAMI/OHCHR, “Report on the

Protection of Civilians in Armed Conflict in Iraq: 6 July–10 September 2014, p. 11; and

A/HRC/28/18, paras. 48 and 49.

71 See UNAMI/OHCHR, “Report on Human Rights in Iraq: January–June 2014”.

72 See A/HRC/28/69, paras. 103–105.

73 Ibid., para. 146 (b).

74 On 22 May 2014, despite the backing of 13 of its members, the Security Council was unable to adopt

a resolution that would have referred the situation in the Syrian Arab Republic to the International

Criminal Court as a result of vetoes by two permanent members, China and the Russian Federation.

75 See the statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the

alleged crimes committed by ISIS, 8 April 2015. Available from www.icc-

cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/otp-stat-08-04-2015-1.aspx.

Syrian Arab Republic to become parties without delay to the Rome Statute and to accept

the jurisdiction of the Court over the current situation under article 12 (3).

34. In addition, where it is suspected that returning foreign fighters have committed war

crimes or international crimes, courts in the countries of nationality of those fighters should

exercise extraterritorial jurisdiction for the crimes committed, where it is available under

national law.76 As recommended by the Independent International Commission of Inquiry

on the Syrian Arab Republic, the principle of universal jurisdiction should be used in

accordance with national law to investigate and prosecute persons and groups implicated in

egregious violations.77 In this respect, the Special Rapporteur takes note of the decision of

the Commission to share information with States willing to exercise their jurisdiction over

the crimes committed in the Syrian Arab Republic.78 As noted by the Commission, every

measure should be taken to ensure that individuals responsible for serious violations of

international law are held to account.79

E. Response of the Security Council

35. As the Security Council was unable to reach consensus on the issue of accountability

for international crimes, it has focused on ISIL as a terrorist group. ISIL has been included

in the Council’s comprehensive international counter-terrorism framework, which was

adopted under Chapter VII of the Charter of the United Nations and Statute of the

International Court of Justice, and is legally binding on all States Members of the United

Nations, following a determination that international terrorism associated with Al-Qaida

represents a threat to international peace and security. In addition, the Council has taken

measures relating to “foreign terrorist fighters”.

36. On 30 May 2013, the Security Council added ISIL to the Al-Qaida Sanctions List as

an alias for Al-Qaida in Iraq (QE.J.115.04). As the Council makes clear in its resolution

1989 (2011), any individual or entity designated by the Security Council Sanctions

Committee as associated with Al-Qaida, which includes any form of support for the

activities of Al-Qaida, or any cell, affiliate, splinter group or derivative thereof, may be

listed. Despite the fact that ISIL has severed its ties with Al-Qaida, the Council considers it

a splinter group of Al-Qaida.80

37. As a consequence of this listing, ISIL is subject to the threefold sanctions regime

imposed by the Security Council, namely: assets freeze, travel ban and arms embargo. In

addition, the Council, in its resolution 2170 (2014), specifically indicates that individuals,

groups, undertakings and entities that provide support to ISIL, broadly described as those

financing, arming, planning or recruiting for ISIL through information and communications

technologies, including the Internet and social media, can also be listed on the Al-Qaida

Sanctions List and be subject to the same sanctions.81

38. The Special Rapporteur has already provided a comprehensive overview of the

various shortcomings of the sanctions regime that the United Nations has established with

regard to Al-Qaida, in particular the quasi-legislative and quasi-judicial functions

performed by the Security Council in administering the regime, in the absence of

76 Report of the United Nations High Commissioner for Human Rights on the protection of human

rights and fundamental freedoms while countering terrorism (see A/HRC/28/28, para. 44).

77 See A/HRC/28/69, para. 145 (a).

78 Ibid., paras. 106–107.

79 Ibid., para. 145 (a).

80 See Security Council resolution 2170 (2014), para. 18.

81 Ibid., para. 18.

independent judicial review that can deliver an effective remedy at the level of the United

Nations (see A/67/396). While acknowledging the significant improvements brought to the

regime,82 concerns remain that most of the shortcomings that had been identified still

remain valid and that the regime continues to fall short of international minimum standards

of due process. In particular, the Ombudsperson’s comprehensive reports are still not

legally binding; the process still lacks transparency; the Ombudsperson still has limited

access to confidential information, a challenge she describes as the most significant

limitation to the effectiveness of the Ombudsperson process; and the institutional

arrangements for the Office of the Ombudsperson still do not afford it proper safeguards for

independence.83

39. The Security Council has also taken decisive action against ISIL through a number

of subsequent resolutions adopted under Chapter VII of the Charter of the United Nations.

In its resolution 2170 (2014), the Council condemned in the strongest terms the terrorist

acts of ISIL and its continued gross, systematic and widespread abuses of human rights and

violations of international humanitarian law. The Council emphasized the need to ensure

that ISIL is held accountable for abuses of human rights and violations of international

humanitarian law and stressed the need to bring to justice those within ISIL who commit

terrorist acts, as well as foreign terrorist fighters. Recalling that threats to international

peace and security caused by terrorist acts must be combated in accordance with

international law, including international human rights and humanitarian law, it adopted a

number of measures and sanctions to prevent the financing of ISIL, including revenues

generated from control of oilfields and related infrastructure, kidnapping for ransom and

donations.84

40. The threat posed by the influx of foreign fighters, albeit not a new phenomenon,85

has gained increasing prominence in the context of the armed conflicts in Iraq and the

Syrian Arab Republic. With States intent on preventing the ranks of ISIL from growing and

exacerbating the conflict, as well as on preventing returning nationals from carrying out

attacks on their own soil (so-called “blowback” attacks) or further radicalizing their

nationals, the Security Council took decisive action to address the issue of foreign fighters.

41. As already noted, in its resolution 2170 (2014) the Security Council called upon

Member States to take national measures to suppress the flow of foreign terrorist fighters

joining ISIL and other individuals, groups and entities associated with Al-Qaida in Iraq and

the Syrian Arab Republic. In its resolution 2178 (2014), the Council went further, requiring

States to adopt a number of measures regarding foreign terrorist fighters, defined as

“individuals who travel to a State other than their States of residence or nationality for the

purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or

the providing or receiving of terrorist training, including in connection with armed

conflict”. In that resolution, the Council decided that Member States should prevent the

travel of foreign terrorist fighters, that they should bring them to justice and that they

should criminalize a number of actions linked to such fighters concerning travel and its

funding and organization or facilitation of recruitment.

82 See Security Council resolutions 1904 (2009), 1989 (2011), 2083 (2012) and 2161 (2014).

83 See S/2015/80, paras. 37–53.

84 See Security Council resolution 2199 (2015), which builds on resolution 2170 (2014) by refining the

range of tools available to block the financing of ISIL.

85 See Geneva Academy of International Humanitarian Law and Human Rights, “Foreign fighters under

international law”, Geneva Academy Briefing No. 7 (Geneva, Geneva Academy, 2014).

42. Resolution 2178 (2014) includes a specific and comprehensive human rights

clause.86 Significant concerns have nonetheless been expressed concerning the broad nature

of some of the provisions and the lack of definition of the terms “terrorism” or

“extremism”, which, on the basis of past experience, may lead some Governments to use

the resolution to justify repressive measures against political dissenters with the apparent

endorsement of the Security Council.87 Similarly, the standard adopted for enforcement

action, that is, credible information that the individual will engage in the acts set out in the

resolution, arguably provides too much latitude to States and could result in arbitrary

enforcement action being taken.

43. In the same resolution, the Security Council also calls upon Member States to

require airlines to provide advance passenger information to the appropriate national

authorities in order to detect when individuals who may fall under the definition of foreign

terrorist fighters are travelling by civilian aircraft. While it is clear from the language of the

resolution that this should not be done by resorting to profiling based on stereotypes

founded on grounds of discrimination prohibited under international law, well-founded

concern has been expressed about the practical implementation of the resolution, as it may

have a serious impact on a person’s right to privacy. Measures that interfere with the right

to privacy must be authorized by domestic law that is accessible and precise and that

conforms to the requirements of the International Covenant on Civil and Political Rights.

Those measures must also pursue a legitimate aim and they must meet the tests of necessity

and proportionality.88

44. In the view of the Special Rapporteur, the approach adopted by the Security Council

to the phenomenon of foreign terrorist fighters could create legal uncertainty in efforts to

identify those to whom it is intended to apply, whether to members of all non-State armed

groups or those defined as terrorist groups under national law, international law, or both.

The Council stresses the urgent need to implement these measures with respect to those

fighters associated with ISIL, among others. However, the scope of the resolution is not

limited to foreign fighters directly associated with ISIL but, rather, depends on national

implementing measures. The Special Rapporteur considers that States should ensure that, in

implementing resolution 2178 (2014), they ensure that national measures are applied only

to those individuals who are conclusively shown to meet the criteria laid down by the

Council. They should also ensure that they strictly observe the human rights provisions

contained within the resolution itself, which include the right to independent and impartial

adjudication and adequate due process, and, more broadly, the principle of legality

enshrined in article 15 of the International Covenant on Civil and Political Rights.89

Criminal liability, including any definition provided in the law, must be precisely framed

and must respect the principle of legal certainty.

45. A number of other rights may also be affected by national measures to implement

the resolution.90 Measures such as the seizure and retention of passports or identity cards

86 See General Assembly resolution 60/288.

87 See A/HRC/28/28, paras. 46 and 47. See also Martin Scheinin, “Back to post-9/11 panic? Security

Council resolution on foreign freedom fighters”, Just Security, 23 September 2014, available from

http://justsecurity.org/15407/post-911-panic-security-council-resolution-foreign-terrorist-fighters-

scheinin/, and “A Comment on Security Council Res 2178 (Foreign Terrorist Fighters) as a ʽForm’ of

Global Governance”, Just Security, 6 October 2014, available from

http://justsecurity.org/15989/comment-security-council-res-2178-foreign-fighters-form-global-

governance/.

88 See A/69/397 and the report of OHCHR on the right to privacy in the digital age (A/HRC/27/37).

89 See A/HRC/28/28, paras. 48 and 49.

90 Ibid., paras. 49 and 50.

may affect freedom of movement; the stripping of citizenship can affect the prohibition of

arbitrary deprivation of nationality or the absolute prohibition of refoulement; restrictions

on travel, or bans from entering one’s country, can affect the right to work, to a family life

and to health; and various types of house arrests or preventive detention can affect the right

to safety and security. The right to a fair trial can be adversely affected by preventive

measures, such as those that limit freedom of movement or touch upon the right to a

nationality and are adopted by members of the executive, based on classified information,

without the opportunity for adequate independent judicial review.

F. Impact on civilians of the military response to the Islamic State in Iraq

and the Levant

46. On 8 August 2014, the United States of America carried out air strikes against ISIL

positions close to Erbil in Iraq. On 23 September 2014, military action against ISIL started

in the Syrian Arab Republic. The international coalition of States led by the United States

against ISIL includes over 60 partners,91 with various levels of involvement, from carrying

out air strikes to providing advice. The States involved in the coalition are different in Iraq

and in the Syrian Arab Republic, with some States active in only one or the other.92 By 27

March 2015, the coalition had reported over 3,000 air strikes in which more than 11,000

munitions had been released. The United States has been responsible for 92 per cent of the

coalition air strikes in the Syrian Arab Republic and 70 per cent of the coalition air strikes

in Iraq.

47. According to the Government of the United States, the legal basis for the coalition’s

use of force in Iraq is intervention by invitation, or consent. On 18 June 2014, at a hearing

of the United States Senate Appropriations Defense Subcommittee, the Chairman of the

Joint Chiefs of Staff, General Martin Dempsey, informed the Subcommittee that the

Government of Iraq had requested United States military air strikes to help combat violence

in Iraq led by ISIL.93 This request for assistance by the Government of Iraq is solid legal

ground on which to determine the legality of the air strikes that take place on Iraqi

territory.94

48. As the Government of the Syrian Arab Republic did not explicitly provide consent

for air strikes against ISIL on its territory, the legal basis for the use of force on Syrian

territory lies elsewhere. On 20 September 2014, the Minister for Foreign Affairs of Iraq

sent a letter to the President of the Security Council in which he explained that ISIL had

established a safe haven outside Iraqi borders that was a direct threat to the security of the

people and territory of Iraq (see S/2014/691, annex). He also explained that Iraq had

requested the United States to lead international efforts to strike ISIL sites and military

strongholds with the express consent of Iraq. On 23 September 2014, in a letter to the

Secretary-General, the Permanent Representative of the United States referred to the

91 See www.state.gov/s/seci/index.htm.

92 Some of the key actors in Iraq and the Syrian Arab Republic are: the United States, Canada, Jordan,

Morocco and the United Kingdom, with intelligence-only flights in the Syrian Arab Republic; in Iraq:

Australia, Belgium, France, the United Kingdom, the Netherlands and Denmark; in the Syrian Arab

Republic: Bahrain, Saudi Arabia, the United Arab Emirates and Qatar.

93 See Andrew Marszal and Arron Merat, “Iraq crisis: June 18 as it happened”, The Telegraph, 18 June

2104. Available from www.telegraph.co.uk/news/worldnews/middleeast/iraq/10908057/Iraq-crisis-

Isis-launch-overnight-attack-on-Iraqs-biggest-oil-refinery-live.html.

94 See Claus Kreß, “The fine line between collective self-defense and intervention by invitation:

reflections on the use of force against “IS” in Syria”, Just Security, 17 February 2015. Available from

http://justsecurity.org/20118/claus-kreb-force-isil-syria/.

serious threat faced by Iraq of continuing attacks from ISIL coming from safe havens in the

Syrian Arab Republic (S/2014/695). She noted that “States must be able to defend

themselves, in accordance with the inherent right of individual and collective self-defence

… when, as is the case here, the government of the State where the threat is located is

unwilling or unable to prevent the use of its territory for such attacks”. She also said that

the United States had initiated necessary and proportionate military action in the Syrian

Arab Republic in order to eliminate the ongoing ISIL threat to Iraq, including by protecting

Iraqi citizens from further attacks and by enabling Iraqi forces to regain control of Iraqi

borders.

49. The right to self-defence as an exception to the absolute prohibition on the use of

force is enshrined in article 51 of the Charter of the United Nations and is contingent on a

State facing an imminent risk of an armed attack on its territory. Under orthodox principles

of international law, the use of force against an armed group located on the territory of

another State is only justified on grounds of self-defence if the territorial State consents, if

the actions of the group concerned are legally imputable to the territorial State or if the

territorial State is harbouring the armed group concerned. International law may also

recognize a right of cross-border pursuit where an armed group uses the territory of a

bordering State as a place to which to retreat in order to regroup before recrossing the

border for the purpose of returning to engage in armed conflict. In the absence of such a

connection, however, the extraterritorial use of force against a non-State armed group

located on the territory of another State has traditionally been regarded as a violation of

sovereignty.

50. However, as the Special Rapporteur has previously noted,95 some States are now

taking the view that the right to self-defence can be exercised even where the non-State

armed groups have no operational connection with the host State. States adopting this

analysis hold that if, after a reasonable opportunity, the territorial State has failed

effectively to neutralize a threat that emanates from an armed group operating within its

borders, either because it is unable or unwilling to do so, then the State that is threatened

with attack is entitled under the law of self-defence to cross the territorial State’s borders

and use military force in self-defence against the group that presents the threat. As the

Permanent Representative of the United States noted in her letter to the Secretary-General,

“the Syrian regime has shown that it cannot and will not confront these safe havens [used

by ISIL for training, planning, financing, and carrying out attacks across Iraqi borders and

against Iraqi people] effectively itself”. On this analysis, the United States and its coalition

partners are entitled to use force in the Syrian Arab Republic at the request of Iraq in order

to defend Iraq and its people against attacks by ISIL, which is operating in Iraq but is using

Syrian territory for the purpose of planning and preparing its military operations, and they

are entitled to enter Syrian territory for this purpose because the Government of the Syrian

Arab Republic has shown itself unable or unwilling to deal with the threat emanating from

ISIL.

51. Many of the 8 million Iraqis and Syrians who live in ISIL-controlled territory live in

urban areas. It has been reported, in Iraq and the Syrian Arab Republic, that ISIL

deliberately places its fighters among civilians or in civilian areas, or uses civilian

infrastructure, such as schools and hospitals, as military bases to conduct operations and

shield its fighters from attack, or to ensure civilian casualties in the event of attack.96 Major

towns have been frequently targeted by coalition air strikes, for example the heavy

95 See A/68/389, paras. 56–57.

96 See OHCHR/UNAMI, “Report on the Protection of Civilians in Armed Conflict in Iraq: 11

September–10 December 2014”, pp. 10 and 17.

bombing of central Tikrit.97 Basing forces among civilians and civilian infrastructure

constitutes a serious violation of applicable standards of international humanitarian law and

can constitute a war crime. At the same time, however, international humanitarian law is

clear that direct attacks against civilian objects are prohibited,98 unless and for such time as

they are military objectives.99 There is a presumption of civilian character for objects

normally dedicated to civilian purposes. In case of doubt, the principle of distinction and

the requirement to do everything feasible to verify that targets are military objectives, not

civilian objects, prevail.100

52. Accurate targeting can be a particular challenge in such an environment. Obtaining

accurate intelligence is essential, but it has been reported that only 25 per cent of coalition

air strikes in the Syrian Arab Republic, and 5 per cent in Iraq, are pre-planned.101 With few

personnel on the ground to provide accurate targeting, crews rely heavily on targets of

opportunity. In recognition of this more challenging environment, the United States has

confirmed that the recent high standards it demanded of its drone strikes in Pakistan, which

required “a near certainty” that civilians would not be killed, could not apply to Iraq or the

Syrian Arab Republic given the intense nature of the conflict.102 In such circumstances, the

coalition has a particular need for good aerial intelligence, surveillance and reconnaissance.

This would not only allow planners to scout potential targets, but also to conduct battle

damage assessments in the wake of strikes to gauge their effect on local populations, and so

modify tactics accordingly.

53. The accurate identification of those directly participating in hostilities is critical to a

proper application of the principles of distinction, proportionality and precaution. The

Special Rapporteur recalls that there is a lack of international consensus on the rules

governing direct participation in hostilities.103 According to the International Committee of

the Red Cross, an individual may be considered as a member of a non-State armed group,

and therefore targeted at any time, only if they have assumed a “continuous combat

function” within that group.104 If this criterion is not met, an individual who is otherwise

affiliated with an armed group can be regarded as having protected civilian status and may

be targeted with deadly force only if, and so long as, the individual is playing a direct part

in the conduct of hostilities. States that are involved in the military action in both Iraq and

the Syrian Arab Republic, including those States carrying out air strikes, should disclose the

criteria they adopt for direct participation in hostilities. This is critical to achieving

transparency as to the forms of conduct that may expose civilians to deadly force, to

evaluating whether any attack is lawful under international law, and for evaluating the

number of civilian casualties resulting from an attack.

97 See United States Department of Defense, “Coalition Forces Conduct 17 Airstrikes in Tikrit”, 26

March 2015. Available from www.defense.gov/news/newsarticle.aspx?id=128458.

98 See International Committee of the Red Cross (ICRC), Customary International Humanitarian Law,

rule 8.

99 Ibid., rule 10.

100 Ibid., rule 16.

101 See Eric Schmitt, “U.S. Adds Planes to Bolster Drive to Wipe Out ISIS”, New York Times, 26

November 2014. Available from www.nytimes.com/2014/11/27/us/us-adds-air-power-but-isis-

presents-elusive-target.html.

102 See Michael Isikoff, “White House exempts Syria airstrikes from tight standards on civilian deaths”,

30 September 2014. Available from https://news.yahoo.com/white-house-exempts-syria-airstrikes-

from-tight-standards-on-civilian-deaths-183724795.html.

103 See A/68/389, paras. 69–72.

104 See Nils Melzer, “Interpretive guidance on the notion of direct participation in hostilities under

international humanitarian law”, ICRC. Available from www.icrc.org/eng/assets/files/other/icrc-002-

0990.pdf.

54. In Iraq, there have been numerous reports of civilian casualties in air strikes and

artillery operations attributed to Iraqi and associated forces, which raise serious questions as

to the proportionality of those military operations.105 In a welcome development, on

13 September 2014, the Prime Minister of Iraq ordered the Iraqi air force to suspend

bombardments in civilian areas, including those controlled by ISIL, and expressed his

commitment to protecting civilians.106 There are also confirmed instances in which Iraqi

forces have dropped leaflets warning civilians to evacuate ISIL-controlled areas owing to

impending military action.

55. In October 2013, the Government of the Syrian Arab Republic intensified its

widespread and systematic attack against the civilian population of Aleppo for allegedly

supporting or hosting armed groups. At the time of writing, government forces were

employing a similar strategy in Ar-Raqqah, the “capital” of ISIL, with apparent disregard

for the principle of distinction.107 It has been reported that civilians were killed in

indiscriminate and disproportionate attacks by the Government on ISIL-controlled areas of

Aleppo, Ar-Raqqah, Dayr az-Zawr and Al-Hasakah governorates.108 On 18 October 2014,

in Minbej (Aleppo), government forces reportedly hit a bakery, killing approximately 25

civilians. In July 2014, in Al-Mayadin (Dayr az-Zawr), government air strikes seemingly

targeted a municipal building being used as an ISIL base, but also hit a market, killing 13

civilians. On 3 September 2014, in Al-Shula (Dayr az-Zawr), a government jet struck an

ISIL checkpoint and reportedly killed 21 civilians, most of them children.

56. The coalition rarely cites casualty data, although the chief of the Air Force of Jordan

estimated in February 2015 that the alliance had killed 7,000 ISIL militants.109 In contrast,

the coalition has conceded no non-combatant deaths in seven months of air strikes, despite

clear indications to the contrary. Verification of fatalities remains difficult. That said,

credible monitoring groups and media and social media sites in both Iraq and the Syrian

Arab Republic have recorded casualties. A provisional analysis by the not-for-profit project

Airwars.org indicates that an estimated 100 coalition air strikes (out of more than 3,000)

had been flagged for concern by 27 March 2015. A non-combatant death toll as high as

420, with over 100 additional claimed “friendly fire” fatalities, were reported. These figures

need to be treated with much caution as many are single-source incidents, are poorly

reported or are linked to events in which the cause of death remains contested.

Nevertheless, some cases are well-documented with eyewitness testimony, video and

photographic evidence, missile fragments, named victims and/or confirmed coalition air

strikes at the location. According to the United States Central Command, of the 38

incidents of concern it has examined, 34 have been discounted while four civilian casualty

allegations are currently being investigated in three separate investigations. Even so, United

States Central Command continues to insist that “no non-combatant deaths from coalition

air strikes in either Iraq or Syria have officially been confirmed”.110 This would appear

highly questionable given the intensity of the air war and the accumulating evidence base.

105 See UNAMI/OHCHR, “Report on the Protection of Civilians in Armed Conflict in Iraq: 11

September–10 December 2014”, p. 17.

106 See “Iraq’s prime minister halts airstrikes in civilian areas”, Deutsche Welle, 13 September 2014.

Available from www.dw.de/iraqs-prime-minister-halts-airstrikes-in-civilian-areas/a-17920325.

107 See A/HRC/28/69, para. 50.

108 Ibid., annex. 2, para. 53.

109 See “Jordan: ISIS lost 20% of its military capabilities”, Al Arabiya News, 8 February 2015. Available

from http://english.alarabiya.net/en/News/middle-east/2015/02/08/Jordan-ISIS-lost-20-of-its-military-

capabilities.html.

110 On-the-record e-mail from United States Central Command spokesman Major Omar Villarreal, 25

March 2015.

The Independent International Commission of Inquiry on the Syrian Arab Republic, for

example, first reported coalition-inflicted civilian casualties in November 2014.111

57. There remains a significant absence of transparency with regard to coalition

operations in both Iraq and the Syrian Arab Republic. Each nation participating in the air

war operates under unique rules of engagement, and transparency levels differ

significantly.112 While the United States and Canada routinely report the date and location

of each strike, other nations only report weekly or monthly. In the case of Belgium and the

Arab members of the coalition, no public reporting of any actions presently occurs. With air

strikes being carried out by multiple actors, including the Syrian and Iraqi air forces, as well

as by the Islamic Republic of Iran — often at the same locations as coalition strikes — it

remains impossible for affected civilians to know, in most circumstances, which State was

responsible for an event, a concern noted by the United Nations Assistance Mission for Iraq

(UNAMI).113 Transparency on the part of coalition States conducting these operations is

therefore imperative.

58. The Special Rapporteur recalls that, in any case in which civilians have been, or

appeared to have been, killed, the State responsible is under an obligation to conduct a

prompt, independent and impartial fact-finding inquiry and to provide a detailed public

explanation. This obligation is triggered whenever there is a plausible indication from any

source that civilian casualties have been sustained, including where the facts are unclear or

the information partial or circumstantial, and whether civilian casualties were anticipated or

not.114

G. Role of the Security Council in authorizing the use of force

59. The actions of ISIL have undermined international peace and security, grossly and

systematically abused the fundamental rights of civilians on a wide scale, gravely violated

international humanitarian law and international human rights law and fractured the

territorial integrity of two States. Nonetheless, not all the permanent members of the

Security Council are in favour of taking more robust military measures. As noted by the

Secretary-General, the privileges of tenure and the veto power that the permanent members

of the Council have been granted under the Charter entail a particular responsibility to not

employ their veto in situations of manifest failure to meet obligations relating to the

responsibility to protect civilians.115 The Special Rapporteur notes that, given the reports

relating to the possible commission of acts of genocide, Council members may have a more

specific responsibility116 given that they are all bound by the obligation to prevent this most

111 See “Rule of terror”, para. 23.

112 See Chris Woods, “Pentagon in Denial About Civilian Casualties of U.S. Airstrikes in Iraq and

Syria,” Foreign Policy, 3 December 2014. Available from

http://foreignpolicy.com/2014/12/03/pentagon-in-denial-about-civilian-casualties-of-u-s-airstrikes-in-

iraq-and-syria/.

113 See UNAMI/OHCHR, “Report on the Protection of Civilians in Armed Conflict in Iraq: 11

September–10 December 2014”, footnote 32.

114 See A/68/389, paras. 41–45.

115 See the report of the Secretary-General on implementing the responsibility to protect (A/63/677),

para. 61.

116 “A State’s obligation to prevent, and the corresponding duty to act, arise at the instant that the State

learns of, or should normally have learned of, the existence of a serious risk that genocide will be

committed”. See the International Court of Justice, Application of the Convention on the Prevention

and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)

(Merits), Judgement of 26 February 2007, paras. 430 and 431.

serious of international crimes.117 The Special Rapporteur notes with interest the broad

support among many Member States, civil society groups and representatives of the United

Nations for initiatives relating to a responsibility to refrain from using veto powers to block

action aimed at ending atrocity crimes.

IV. Conclusions and recommendations

60. States are under an obligation to take measures to protect civilian populations

from widespread and systematic acts of violence and terrorism. It is essential that any

response be grounded in respect for international law, including international

humanitarian law, international human rights law and refugee law.

61. In the light of the grave international crimes and systematic human rights

violations committed by ISIL forces in Iraq and the Syrian Arab Republic, the Special

Rapporteur:

(a) Recommends to the Security Council that the situation in Iraq and the

Syrian Arab Republic be referred to the International Criminal Court as a matter of

urgency, or that an ad hoc tribunal be established promptly to try those responsible;

(b) Calls on Iraq and the Syrian Arab Republic to become parties to the

Rome Statute and to accept the jurisdiction of the International Criminal Court over

the current situation;

(c) Recommends that States prosecute individuals who have committed such

crimes where they are able to exercise jurisdiction.

62. States must ensure that all the measures they adopt at the national level to

address the threat posed by ISIL and other such groups, including measures taken to

implement Security Council resolution 2178 (2014), fully comply with their obligations

under international human rights law, as outlined in the present report.

63. All States engaged in military action against ISIL in Iraq and the Syrian Arab

Republic are under an obligation to conduct prompt, independent and impartial fact-

finding inquiries in any case where there is a plausible indication that civilian

casualties have been sustained, and to make public the results.

117 All permanent members are bound by art. 1 of the Convention on the Prevention and Punishment of

the Crime of Genocide.