22
Examination of Witnesses
Dr Ewelina Ochab and Pari Ibrahim.
Q1 Chair: Welcome to today’s meeting of the Joint Committee on Human Rights. We are a cross-party Joint Committee, which means that we have members from both the House of Commons and House of Lords here today. As our name suggests, our concern is human rights.
Today, we are holding the first session of our inquiry into accountability for Daesh crimes, looking into whether the UK Government’s response is human rights compliant. We will be hearing today from two witnesses, focusing our questioning on the legal framework applicable to the prosecution of returned Daesh fighters and whether the UK Government are complying with their human rights obligations, under domestic and international law, to prevent and punish international crimes.
We have two witnesses this afternoon. From the International Bar Association’s Human Rights Institute we have Dr Ewelina Ochab, who is a lawyer, human rights advocate and author. She is a programme lawyer with the IBA and works on the topic of genocide, with a specific focus on the persecution of ethnic and religious minorities around the world, with main projects including the Daesh genocide in Syria and Iraq. Welcome, and thank you for coming to give evidence to us today.
Perhaps I can point out for those who are following our proceedings that this inquiry was proposed by the International Bar Association’s Human Rights Institute. As members, we decide what inquiries we have, but it is very open to people to make suggestions, which we welcome, for what those with concerns about human rights would like to see us conduct inquiries into. We are grateful for the suggestion from the International Bar Association.
We also have Pari Ibrahim, who is the founder and executive director of the Free Yezidi Foundation. She is a Yazidi woman originally from Iraq. She fled Iraq as a child with her family in 1991 during the Saddam Hussein regime, eventually resettling in the Netherlands. Pari created FYF to support Yazidi survivors in the aftermath of the Yazidi genocide perpetrated by Daesh. We are very much looking forward to hearing evidence from both of you.
I will open the questioning with a bit of context and scene-setting. The main focus of our inquiry, and this evidence session, is specifically the Government’s human rights responsibilities. Before we dive into that very close focus, it would be good to remind ourselves of the context that we are dealing with. It sounds like a ridiculously enormous question, but perhaps I could ask Pari to provide a very brief overview of the conflict in Syria and Iraq and the role that Daesh played in it. It is important for you to set the scene for us, particularly from your personal experience.
Pari Ibrahim: I think it was in 2014, and a while before, that it was very clear what the Islamic State was—a terrorist organisation—and what it was doing to people. It was when the Islamic State advanced into Mosul that Yazidis were really afraid. This was around June 2014. Once ISIS advanced into Mosul, the Yazidis in Sinjar got scared and understood that, if the Islamic State could come into Mosul so easily, it would be so easy for them to also get into Sinjar. They were already fearing the worst of the worst, because our people, the Yazidis, are seen as infidels, as non-believers, those who are not people of the book. Therefore, the idea is that Yazidis need to be eradicated.
Islamic State was very clear about the eradication of Yazidis. That was what it wanted and that was its goal. In August 2014, when they entered Sinjar, they started killing the men and kidnapping Yazidi women and children. Eventually, the women who were kidnapped were sold as sex slaves in Syria and Iraq. The children were brainwashed into becoming child soldiers. Older women were killed with the men. Many crimes, human rights violations and things that I can go into deeper details about later were committed by Islamic State.
The key thing today is also to recognise that what Islamic State wanted to achieve was not achieved. The Yazidi community still exists. The Yazidis live in internally displaced people camps, but they look towards the world for justice and accountability. It has been almost 10 years and we have not seen much of that. I believe that every country that has citizens who went to join Islamic State should do their own investigations and work with civil society to find out what crimes were committed by Islamic State. I can talk about this for hours and hours, but I want to keep it short.
Chair: You have emphasised the enormous gravity and importance of the situation in the context of us looking at how this Government have dealt with returning Daesh fighters—those who have been fighting and have returned to this country.
Q2 Lord Dholakia: Pari, can you give us an overview, some idea, of the type of crimes that were committed by Daesh in countries such as Syria and Iraq?
Pari Ibrahim: Islamic State committed horrendous crimes, as I said. We are talking about genocide, enslavement, slave trading of Yazidis, rape, murder, torture and human trafficking. I will just mention a few and why they are so important. Genocide is obviously the crime of crimes. Many countries have agreed that genocide should never happen again. Unfortunately, it did happen again, but what do we do to prevent it, and what do we do in the aftermath of genocide? How do we make sure that we take responsibility for our own citizens who participated in these kinds of crimes?
One thing I always tell people is that Islamic State was very targeted in its ideology and its end goal. It was a planned attack on the Yazidi community. They had buses ready for the slave trading and enslavement of Yazidi women and children. They also had a legalised system of slave trading that included the courts and their religious justification of the treatment of Yazidis. They were very public about it. You can see it in issues no. 4 and 9 of their online magazine Dabiq. Both those issues had chapters talking specifically about the Yazidis, why they had to eradicate them and why it was okay to enslave Yazidi women. We do not even have to do much research about the goal of Islamic State and why they were treating Yazidis so differently from others. The key thing is that we find and gather the evidence of the crimes that were committed.
Lord Dholakia: Are you aware of any British citizens involved in the commissioning of these crimes, or any relationship with such crimes?
Pari Ibrahim: Since ISIS committed so many crimes and so many different citizens from different countries were involved, it is impossible that British citizens were not involved in them. I am 100% sure that they were involved. I remember reading that, at some point, there was evidence that the main source countries for Islamic State members were in Europe—France, Germany and the UK. Not a lot of cases have actually been brought.
You can look at Germany, as an example, in trying to find and gather evidence on its own citizens, to see what crimes they committed. Looking at Germany, it proves that foreign ISIS fighters were heavily involved in certain crimes. In Germany, we have around 10 cases, three of them related to specific genocide. The other seven cases are related to crimes against Yazidis. It is very clear, just from looking at the German cases, that foreign fighters, not forgetting female ISIS members, were involved in committing crimes against Yazidis.
Dr Ewelina Ochab: I agree with everything that Pari just said about the atrocities. It is very important to emphasise that over 2,700 Yazidi women and children are still missing. In many cases, we believe that they are alive. There are also messages. They have been in contact with people who said that they could help them to be rescued. There are ongoing efforts to rescue those women and children. Unfortunately, in the majority of those cases, Daesh fighters still live as if a Daesh caliphate was there in full bloom, as it was many years ago. Daesh fighters are active in many parts of Syria and Iraq still. Most importantly, the Daesh ideology is still raging. This has not been addressed to this day.
I too want to address the issue of Daesh fighters who are from the UK. The UK Government confirmed some of the numbers of British fighters who left the UK to join Daesh in Syria and Iraq; they range from 850 to 900. Some years ago, there was an inquiry by the Parliamentary Assembly of the Council of Europe. It was run by Pieter Omtzigt, a Dutch parliamentarian who was appointed UN special rapporteur on bringing Daesh to justice. He sent questions to all member states, asking “How have you been dealing with the issue of Daesh fighters? How many nationals joined Daesh? How many went to Syria and Iraq? How many returned?” At that stage, the UK confirmed that 850 British citizens left the UK to join Daesh in Syria and Iraq. At the time, the assessment was that approximately half of them returned to the UK, so approximately 425 returned to the UK.
In 2020, in response to a Written Question, the UK Government said that approximately 900 went to Syria and Iraq. Approximately 20% were killed and 40% returned, so we are talking about approximately 360 who returned. That is the number confirmed by the UK Government in writing in response to Written Questions. Everything is on the record. That will be available to the Joint Committee as well.
In a conversation with a police officer, when I did not mention the numbers identified by the UK Government, that police office volunteered the number of 600 who had returned to the UK. This requires further attention and needs to be checked. Ultimately, the numbers have been repeated again and again, and I do not know whether they are just copied and pasted from previous responses rather than a proper review of how many British Daesh fighters left the country to join and fight with them in Syria and Iraq and how many returned.
There has to be a proper number of Daesh fighter returnees. Such trips to the Middle East and back are traceable. I went to Amsterdam just recently. As they scanned my pass, they said, “You’ve been to Iraq. What was the purpose of your trip?” They also wanted me to elaborate on what I was doing there and to provide some kind of evidence. It appears that other countries are dealing with the issue better. There has to be a better number than just telling us that it is approximately 850 or 900. This is what the Government need to provide.
Chair: That is something that we could pick up as a proposal and deal with by way of a Written Question to the relevant Minister, asking about the numbers, how recently they have been collected and what they are based on. That is a very helpful prompt for our inquiry. I do not know whether that covers your questions, Caroline Johnson.
Q3 Dr Caroline Johnson: It covers the questions pretty thoroughly. The only thing we do not know is how many remain in Syria or Iraq, but that is a mathematical deduction of those who have died and those who have come back.
Dr Ewelina Ochab: In the Government’s response, we are talking about approximately 40% remaining in the region. Again, there has to be a better statistic that the Government can provide. We also do not know whether the UK Government have been in touch with their counterparts in Syria and Iraq to confirm the number of those who are in prisons. We know that a large number of British citizens are in prisons, both in Syria and Iraq, but we do not know the exact number. There has been some research into that issue by research institutes, including one that is based here in London, but unfortunately they also have very vague numbers. Once the UK Government reach out to their counterparts in Syria and Iraq, they should get a better number in relation to this.
This will be very important, especially as Iraq is planning to introduce amnesty laws. At this stage, we do not know whether those amnesty laws will also include Daesh fighters. If so, they may be released. If they are British, the question is whether they would return to the UK. Would we have another wave of Daesh fighters returning to the UK? How will we deal with them? Will they be investigated for their crimes and prosecuted? There will be lots of questions. This is a very important topic right now, and I am pleased that the Joint Committee is dealing with it, especially in light of the concerning messages from Iraq.
Chair: We can follow up that with a Written Question, asking whether they have been in touch with their counterparts in Syria and Iraq, and asking about the numbers of UK citizens who are imprisoned because of their involvement with Daesh crimes and what their approach has been to their counterparts—what representations they have made about how those prisoners should be dealt with if a question of amnesty is being considered more generally. You have some very useful proposals for us.
Dr Caroline Johnson: The other question is whether we have any indication of whether this is a general guess number, or whether we know the names and addresses of who all these people were. Do you have any inkling?
Dr Ewelina Ochab: The UK Government would be better placed to answer this question, because these are the numbers provided by them. They are not guessed by me or other researchers. I believe that they must have the names of all of them.
I also wanted to bring to your attention a database produced by the BBC, which has been tracking some of the Daesh fighters who left the UK. The database is of only 300, and it is not only of Daesh fighters who left Syria and Iraq but those who are working from the UK on financing, spreading propaganda and so on. It is all online now. I will make sure that I send a link to the database.
The database also traces how many of them have been prosecuted for their involvement with Daesh and how many return who were convicted. From the database that contains only names of fewer than 300 individuals, there is information about eight convicted returnees. That also includes what they were charged with and what their involvement with Daesh was. This is very important research, but, unfortunately, it does not present the whole picture, because it is only 300 individuals who are involved with Daesh, not only those who left the UK to join Daesh in Syria and Iraq.
Q4 Joanna Cherry: Good afternoon to both of you. I am the MP for Edinburgh South West for the Scottish National Party. Presumably, British intelligence must have this information. If former fighters who have been members of Daesh are returning from Iraq and Syria, that is a big issue for our homeland security. I presume that the Government would be able to get details on numbers from intelligence. I would be shocked if that information was not available somewhere. Do you agree?
Dr Ewelina Ochab: Yes.
Chair: We will do what we can to get it, bearing in mind that it is fundamental to the basis of this inquiry how the Government are dealing with the violations of human rights and holding people to account for them. The question of what information they have and the basis for the information is very important.
Dr Ewelina Ochab: That is definitely the case. In the information that I will send to you from the BBC database, there are a few cases of fighters who, as they were returning to the UK, were arrested, whether in Dover or Luton, because there was enough information about the links to Daesh to proceed with the arrest and conduct further investigations.
Lord Henley: I want to come in here, because it might help to speed up my question later. I am a Conservative Member of the House of Lords. The only public figure we have at the moment is of eight convictions. Are there any public figures about the number of prosecutions?
Dr Ewelina Ochab: We have a number of convictions.
Lord Henley: Eight, I think you said.
Dr Ewelina Ochab: No, 32. The figure of eight relates only to the information available in the BBC database as it was collecting information from public sources. The UK Government said in response to a recent Written Question from Lord Alton that there were 32 convictions of Daesh fighters who had returned to the UK. That is 32 convictions out of the 360 to 425, so less than 10%.
Pari Ibrahim: They are all terrorism charges.
Dr Ewelina Ochab: Yes.
Pari Ibrahim: That is why there is no justice for our community. That means no justice for any of the victimised community, the survivors.
Chair: It does not relate to the genocide, which you were explaining underpins all of this.
Dr Caroline Johnson: How many of the 32 convictions relate to offences committed overseas, and how many relate to offences committed in the UK before or after they returned?
Dr Ewelina Ochab: We do not have further information on that. Further questions were asked, but the UK Government did not respond to them and provided only the number of 32. I have also seen letters from Lord Alton—everything is on Lord Alton’s website and is well documented—asking what the charges were, what offences we are talking about, where they were perpetrated, and so on. The UK Government did not provide further information. This was why we wanted some kind of inquiry: to make sure that we actually engage with the topic.
Q5 Lord Alton of Liverpool: I am an independent Cross-Bench Member of the House of Lords. Dr Ochab, can I take you first to 1941 and a radio broadcast by Winston Churchill, who said that there was no word sufficient to describe the monstrous crimes that had occurred in the Holocaust? It took a Jewish-Polish lawyer, Raphael Lemkin, who had lost over 40 of his own family in the Holocaust, to give us the word “genocide”— the cutting of the human family.
Great hopes were held out that the convention on the crime of genocide, the 75th anniversary of which we are marking this year, would somehow stop what Pari Ibrahim described earlier in her excellent contribution from happening all over again. Yet, from Rwanda to Bosnia and many other places, we have seen it happening again and again. Can you remind the Joint Committee, apart from the words such as “predict”, “prevent” and “punish”, what the actual detailed obligations under international law are that fall on the United Kingdom to try to prevent these atrocities from occurring?
Dr Ewelina Ochab: We are talking about the genocide convention, which not only defines the crime of genocide in Article 2 but imposes obligations upon states to prevent and punish the crime of genocide. Starting with the duty to prevent genocide, the convention itself does not explain what it means or how this duty is to be implemented, but there is a very important judgment from the International Court of Justice from 2007, which talks about what prevention actually means. Paraphrasing, we do not have to wait until we see baddies on the streets, because then we are not talking about prevention. We have to act much earlier.
The International Court of Justice confirmed that the duty to prevent arises the instant a state learns, or should normally have learned, of a serious risk of genocide. That is the trigger point for the duty to prevent genocide. Unfortunately, that is one of the duties that is not implemented pretty much anywhere in the world. In order to implement this duty, states should have domestic mechanisms that will enable them to identify early warning signs and risk factors of genocide, and situations at serious risk of genocide, in order to trigger the duty to prevent genocide.
In the UK, there is no such mechanism. The Bishop of Truro’s review recently recommended ensuring that there is a mechanism for monitoring early warning signs of atrocities to come. In response, the Government established a small team of, I believe, three individuals who are monitoring the situation. Unfortunately, we are not seeing any results of this work at this stage.
Then, of course, the Government have the JACS—joint analysis of conflict and stability—assessment. Unfortunately, this assessment is not available to anyone. It is only for the Government’s eyes. Even Parliament cannot check whether the Government are following their own advice identified in this assessment, which is very concerning. At least parliamentarians should have access to it in order to know whether the Government are doing what they have identified for themselves to respond to atrocities.
In the US, much more work is being done to monitor early warning signs, especially with the Elie Wiesel Act, which was adopted some years ago, and there is annual review of situations of concern and identification of the steps taken by the US Government in response to those situations. That provides more clarity and transparency. It is not perfect, but it is a great start on implementing the duty to prevent genocide.
The second duty, the duty to punish genocide, which is incorporated into Article 1 of the genocide convention, requires us to introduce laws to prosecute the perpetrators, to be involved in the prosecutions and to help international tribunals to prosecute others. In the UK, the law on genocide was initially the Genocide Act 1969, which is now repealed. Now there is a different law, the International Criminal Court Act 2001, which replicates the wording from the genocide convention, which is replicated in the Rome statute. The scope of that provision is much narrower. It provides for universal jurisdiction, but only in a very limited number of cases. It is more extraterritorial jurisdiction than universal jurisdiction, and I believe we will discuss it later.
Q6 Lord Alton of Liverpool: Your recommendation is that the JACS reports that are drawn up for situations such as that in Tigray at the present time, which we know exist, should be available to Members of Parliament at the very minimum. There should be more transparency.
Can I ask you about other gaps in the genocide convention? One relates to the political classes, which are not covered in a country like North Korea, and comes out in the 10th anniversary of the United Nations’ own report, by Mr Justice Kirby, into atrocities in North Korea. They are simply not covered as a group. During the Daesh atrocities there was the killing of homosexuals, the throwing of gay people off buildings. They are not covered as a group of people, as an ethnic or racial group. Is that another gap that perhaps needs to be addressed?
Finally, the French have proposed the reform of the United Nations Security Council in that, at least in the case of atrocity crimes, the veto should not be available to those members of the Security Council. Clearly countries such as China and Russia sitting on the Security Council prevent referrals to the International Criminal Court. Should the United Kingdom be attending to that? Should we be supporting it?
Dr Ewelina Ochab: I would definitely support the disclosure of JACS, at least to parliamentarians, to make sure that they can review the Government’s responses. If it is not disclosed to all parliamentarians, it should at least be disclosed to the relevant committees, which would then be able to review the work being done.
There is also a greater need for some kind of a trigger point when the JACS assessment is conducted. Ethiopia is a great example. The war in Tigray started in November 2020. The early warning signs and risk factors were there a long time before the war began. The JACS assessment was first done in 2022, I believe, two years into the war, not as the war started or before. The FCDO, or the Government, waited two years to assess the risks, which just does not make sense.
There should be a trigger point. If, for example, the Joint Committee on Human Rights or the Foreign Affairs Committee is concerned about a situation, it should write to the Secretary of State to conduct a JACS assessment within the following three to four months, or even earlier, subject to availability of course. If there is nothing of that sort, it is a matter of conjecture whether a JACS assessment will be done. If this is a mechanism that the UK Government are using to identify early warning signs of risk and risk of atrocity crimes, we need to engage with it in a different way. This is not being done at this stage, so there is definitely a need for that change.
In relation to other questions on the genocide convention and its limitations, Lemkin, of course, wanted a very different, much broader definition of genocide. Unfortunately, once the drafters came together, and because of the different interests of states at the time, political groups were excluded from the definition. Amending the convention would require a lot of time and attention. None the less, considering the political targeting of individuals—North Korea is a great example—this is definitely something to look into.
There is quite some support for the French proposal on the veto. It would only be a refraining from the veto right in relation to atrocity crimes rather than across the board. None the less, this is the way forward. I have a counterproposal: if there is no willingness to freeze the veto in cases of atrocity crimes, there could be a follow-up procedure. If something is blocked at the UN Security Council, by default take it before the General Assembly. In many cases, you cannot establish ad hoc tribunals. The options before the General Assembly are limited, but at the same time you can do certain things.
A good example is the response to the war in Syria. When the resolution referring the situation in Syria to the ICC was blocked by China and Russia, states came together and tabled a resolution before the UN General Assembly, establishing a mechanism to collect and preserve the evidence of the atrocities. Of course, Syria and Russia did not like it. None the less, a good number of countries supported it. The resolution received a majority, which is what is required at the General Assembly. The mechanism was established and continues to collect and preserve the evidence without even going to Syria. They have been working with prosecutors in 12 different countries to help with prosecutions of the perpetrators.
That is a good example of the default position. If something at the Security Council does not work, let us take it before General Assembly. There is no veto right there; we need a majority to proceed with certain steps. We need to be flexible with such situations if one body is frozen because of the interests of certain countries.
Q7 Baroness Lawrence of Clarendon: I sit on the Labour Bench. As you talked about the relationship with different countries, I was wondering how it is with the UK Government. Do you have correspondence with other countries so that, when you are looking at prosecuting, you are in line with each other? Is there a connection between other countries and the UK?
Dr Ewelina Ochab: From what I know, there is no such connection. In February this year, I went to Iraq, together with our wonderful IBAHRI team. We had a number of meetings there, including with UNITAD, the mechanism that was established to collect and preserve the evidence of the atrocities perpetrated by Daesh. Its response was that the UK Government never ask for evidence.
UNITAD is the mechanism that was specifically established to collect and preserve the evidence of the atrocities. It works with prosecutors in 14 different countries to ensure that the perpetrators are investigated and brought to justice, but the UK is not collecting the evidence. A number of Questions were tabled to the UK Government asking about it. The usual response is that the UK Government played a very important role in establishing UNITAD, and this is true. The UK played a very important role and has been supporting financially, but this is not enough.
Knowing that approximately 900 Daesh fighters went to Syria and Iraq and committed horrific atrocities, and not even reaching out to UNITAD to ask what kind of evidence it collected on those individuals to ensure prosecutions and to play a more active role, is very concerning. This is just before the moment when UNITAD may cease to exist, because Iraq recently requested the closure of UNITAD. What will happen to the evidence collected so far? Will we be able to use it? Together with Pari, we are having conversations about what should happen next and whether we need a different mechanism that can take over, even if the Iraqi Government do not approve it.
None the less, we need to keep in mind that it is not about us. It is not about Governments. It is about victims and survivors who trusted such mechanisms, who shared the evidence and their testimonies with them about the horrific pain and suffering that they were subjected to. If we are to take a victim-centric approach, which this Government are also always talking about, we need to do more and place the victims and survivors first.
One survivor I met earlier this year is a young woman who was abducted when she was a teenager of 12 or 13. She was liberated only a few years ago, so she lived with Daesh fighters for a long time. She asked us what we are doing to ensure justice and accountability, because her life became so tiny, while the perpetrators are roaming freely. They keep contacting her, because they can find her. They are harassing her. They are telling her, “You’re not wearing your appropriate clothes”, and so on. She told us that one of the perpetrators was British and gave us a picture of him. We managed to find his name because he was a white Daesh fighter, so of course he was being used as a poster boy. She was given to him as a gift, and we know exactly what that means: it means that she was subjected to rape and sexual violence on a daily basis. She was given to him as a Ramadan gift. We found that he was most likely killed in a suicide attack, so it means that he will never be brought to justice. She will never have an opportunity to testify before a court, to have a moment facing her perpetrator.
In that case, we cannot ensure justice and accountability, but we need to do more. Too many victims and survivors came to the ministerial meeting last year, testified and shared their experiences, and nothing is being done to ensure that there is justice even for the British perpetrators who came back to the UK.
Q8 Baroness Kennedy of The Shaws: I should declare that I am in fact the boss of Dr Ochab, because I am the director of the International Bar Association’s Human Rights Institute. Let me make it very clear that Dr Ochab has been working on this independently and with great commitment for a number of years.
Dr Ochab, I wanted to ask you about our jurisdiction. I do not want to tread on a question that Baroness Meyer will ask later about other jurisdictions, but we know that genocide has been included in indictments in other jurisdictions against individuals who have been arrested and successful convictions obtained. I want to ask you about our jurisdiction and how it operates. Would it be possible, under the laws that we have currently, to prosecute returned Daesh fighters for the crimes that they committed against women and other Yazidis while they were overseas and part of Daesh?
Dr Ewelina Ochab: Yes, it is possible under existing laws to prosecute a Daesh fighter who is a British national and resident and who returned to the UK. He can be prosecuted for international crimes such as war crimes, genocide and crimes against humanity. Unfortunately, that is as far as it goes. If a Daesh fighter who is not a British resident and a British citizen comes to the UK on a student visa or any sort of visa, that person could not be prosecuted for the same crimes even if the UK Government had evidence of their involvement. That is because of the limitations of Section 51 of the International Criminal Court Act 2001. I will share the information with the Joint Committee. There is another limitation in the same Act, in relation to the consent from the Attorney-General. Any proceedings for international crimes under Section 51 of the ICCA 2001 have to receive a consent from the Attorney-General. There has been a lot of criticism of that—that such decisions can then be politicised. They could be political decisions.
If, for example, the UK does not believe that genocide was perpetrated against the Yazidis, will the Attorney-General then allow or give consent to proceeding with such proceedings against a Daesh fighter for genocide? We know that the UK Government now recognise the atrocities as genocide; they did so in August this year, nine years after the atrocities and the attack on Sinjar. None the less, it is important recognition. How does that then relate to the decisions made by the Attorney-General? I have seen Written Questions in relation to how many times the Attorney-General was asked to give consent to such proceedings, but there has been no response. I believe that the Joint Committee on Human Rights should try to obtain this kind of information.
Baroness Kennedy of The Shaws: We need to find out how many applications there have been, if any. There might have been none at all. I wanted to press you on the issue of our legal position. The International Criminal Court Act was introduced following the creation of the International Criminal Court. We absorbed some of our previous legislation into that and repealed previous legislation. You have spoken about the way in which it is confined to UK citizens and residents. For example, if a Daesh fighter decided that it was going to be uncomfortable to live in Germany and decided to come and live here with a new wife or whatever, if somebody settled here and it was discovered that he had been one of the Daesh fighters but he had not applied for residence and was not a citizen, would it be possible, consent or no consent of the Attorney-General, to prosecute him?
Dr Ewelina Ochab: It would not be possible to prosecute him under the ICCA 2001.
Baroness Kennedy of The Shaws: There is a limitation on our interpretation of universal jurisdiction.
Dr Ewelina Ochab: Yes.
Q9 Baroness Kennedy of The Shaws: The second question linking to that is the one you have been referring to: the role of the Attorney-General. I am sure the concern there and the reason for introducing the Attorney-General’s consent is because of the serious nature of some of these crimes. If you are using universal jurisdiction, you are talking about the gravest of crimes. I suppose the concern would be that some of the leaders of countries with which we have strong relations might come on a diplomatic visit to Britain and find themselves being arrested by persons who exercise citizen’s arrests. Let us imagine it is Mohammed bin Salman in relation to the Khashoggi killing. If a state visit was made by Mohammed bin Salman and it was possible for a citizen to make an arrest, some people might be rather concerned if they were trying to forge trading relations with such a person.
Dr Ewelina Ochab: That is a very important argument. I absolutely agree that there are political interests involved. One problem is that only the ICCA has limited universal jurisdiction; it resembles more extraterritorial jurisdiction rather than full universal jurisdiction. There are other pieces of legislation that have a much broader understanding of universal jurisdiction, including the Geneva Conventions Act 1957. Anyone, even if they are not British citizens or British nationals, can be prosecuted for crimes perpetrated abroad under the Geneva Conventions Act 1957. That is for violations of the Geneva conventions. We are talking, basically, about war crimes.
For war crimes, two Acts can be used. There is the Geneva Conventions Act 1957, which has the full understanding of universal jurisdiction, and limited universal jurisdiction under the ICCA 2001. For genocide and crimes against humanity, we have only a very limited approach that applies only to British citizens and British nationals. Then you have separate provisions in relation to torture with, again, a broader universal jurisdiction than in cases of genocide and crimes against humanity.
At this stage, very different approaches are taken in relation to different crimes, which does not work. We need a much more concise approach in relation to universal jurisdiction. We know that some perpetrators will be in this country sooner or later. The UK courts should be given the full power to deal with such cases, especially when we are talking about genocide, the crime of crimes.
Also, in relation to political and business interests, in a few cases there have been arrest warrants for former leaders or former military leaders under the Geneva Conventions Act 1957. That prevented them from entering this country, but that was only in a few cases and did not address the issue of Daesh fighters. For Daesh, from what we know, there has never been any indictment for genocide. In this country, there has never been a prosecution for genocide either.
Baroness Kennedy of The Shaws: You mentioned speaking to a police officer who spoke about 600 returnees. Do we know whether any part of the British police is trained to deal specifically with this high-level kind of crime? Secondly, with regard to the Yazidi, would the police know to ask returning fighters whether they had taken wives while they were in Syria or Iraq, what they knew of the origin of those women and to which communities they belonged, et cetera? Are officers trained to do that?
Dr Ewelina Ochab: Within the police there are groups of experts, including SO15, who deal with international crimes. The CPS also has the expertise to deal with international crimes.
In terms of engaging with the issue of Daesh fighters and understanding some of the atrocities that they perpetrated against the Yazidis, I do not believe so. One question would be not only whether you were a member of Daesh but whether you were married to a Yazidi woman. We know that this is forced marriage and involves rape and sexual violence. I do not think this kind of training has ever been given to police officers, but this can be asked of relevant experts in the next session.
Yazda, another organisation working with Yazidi survivors, created a special document that would equip police investigators with the basic knowledge to understand the atrocities perpetrated against the Yazidis. We are hoping to show this training here in the UK as well in collaboration with the Yazda organisation. At the time, as some Daesh fighters were returning from Syria and Iraq in about 2014 and 2015, when the information about the atrocities was in the public domain, there was not necessarily that much understanding if it. I doubt that those questions were being asked.
I have one story from Alex Crawford, a wonderful foreign correspondent, who interviewed a number of Daesh fighters returning to the UK. Of course they denied membership: they were there just as aid workers, assisting civilians and so on. There were all kinds of stories. It was deny, deny, deny. She has so much experience of interrogating or investigating that she asked the right questions. After her documentary was broadcast, the individual was approached by police and criminal proceedings were brought against him. That was not because he was asked those questions on arrival. It took a skilled journalist who knew exactly what Daesh did in Syria and Iraq and the horrific atrocities. She knew exactly what kinds of questions to ask.
Chair: Can I make sure that I have it clear in my own mind? We have been hearing about some of the limitations. Have I got it right that you are explaining to us that, basically, the UK courts, the police and the prosecution services have jurisdiction to prosecute if it is a UK citizen or resident who has committed a crime of genocide in another country? That is subject to the consent of the Attorney-General, but that power is there. We need to consider, in the light of what we have heard from Pari and other evidence about the genocide and the information you have told us that is in the public domain about the returning Daesh fighters, while bearing in mind that the UK authorities have that power, that there have been no prosecutions for genocide. That includes what is described as forced marriage, which is rape and sexual offences. It is quite good for us to be clear about what the shortcomings are where and we could make the system more comprehensive, and what is or is not being done with the current powers that the UK Government and the prosecuting authorities already have. We need to consider the latter in particular.
Q10 Dr Caroline Johnson: You talked about the limits of jurisdiction and it applying to British citizens. This is a double question. Can someone who is not a British citizen but is resident in the United Kingdom be extradited to face charges elsewhere on this basis? If somebody has come here, perhaps as an asylum seeker or on a student visa, and been given leave to remain, or even if they have not come with leave to remain but as an asylum seeker and have remained despite perhaps being refused asylum, can those people be prosecuted?
Dr Ewelina Ochab: If you are a British citizen or resident, you can be prosecuted. I am not sure about asylum seekers. It also depends on their status. I can double-check whether there has been any kind of work done on this and share it with the Joint Committee on Human Rights.
Chair: It sounds like there is not a whole load of activity in relation to the plentiful number of British citizens who are possibly there whom there would be no inhibition to prosecution on the basis of their citizenship or residency status, bearing in mind that they fall fairly and squarely within the middle of the jurisdiction that the prosecuting authorities already have but do not appear to use.
Q11 Lord Alton of Liverpool: I want to pick up on your point about the naming of genocide and the ability to prosecute on that basis. In 2014, after the horrific events in Sinjar that Pari described to us, the then Foreign Secretary, Boris Johnson, said that it could only be described as a genocide. That was on the public record. The House of Commons, in a vote in 2015, decided that it was a genocide. The House of Lords, by a three-figure majority, supported amendments to the law to enable the High Court of England and Wales, and its equivalent in Scotland, to have before it a determination on whether a genocide is under way.
The only reason why people who have done these things to the Yazidis could be prosecuted for genocide in the UK is because we have accepted the decision of a German court, thanks to Amal Clooney and others, that this was a genocide. Is this not a bizarre situation and a totally contradictory one? What would be your recommendation to the Joint Committee and the Government on this?
Dr Ewelina Ochab: Before I answer the question, I want to re‑emphasise what the Chair said about those returning. We have clear jurisdiction to prosecute Daesh fighters who return who are British citizens, but that has not been done. Then, of course, there is a question of the Attorney-General’s consent. There is a clear universal jurisdiction to proceed with the 425 or 360 cases—again, that number needs to be double-checked with the Government. The question is why that has not been done. I wanted to rephrase that, because it is a very important question.
As for the determination of genocide, the UK Government’s position is that it is for the courts, not politicians, to determine genocide. We do not know exactly where this is coming from. It is a long-standing policy, but it does not seem to have any proper source; it is definitely not in law. When I was just starting to work on the situation of the Yazidis back in 2015, we were already hearing this argument. We were also hearing it from the Canadian and Dutch Governments.
In 2016, important research was done by the commission of inquiry on Syria, which published a report, “They Came to Destroy”: Isis Crimes Against the Yazidis, and recognised the atrocities as genocide. Following that report, the Canadian Government recognised the atrocities, because they said, “This UN report is enough for us to make the finding that this is genocide and treat it as such, provide assistance to the Yazidis and so on”.
In the Netherlands, the Dutch Government requested a report from an independent expert dealing with whether politicians can deal with the question of genocide and, secondly, whether Daesh atrocities amounted to genocide. The expert’s response was that, yes, politicians can deal with the question of genocide and should—if there is enough evidence, of course. It should not be taken out of nowhere; there has to be evidence in support. In relation to the second question about whether the atrocities against the Yazidis amounted to genocide, the response was, “Yes, there is enough evidence to suggest that the atrocities amount to genocide”.
Despite the fact that those two countries started, as the UK did, with the view that it is not for politicians but for international courts, or courts, to deal with the question, the UK Government did not change their position and continued with the argument, “Leave it to courts”. As this argument was being made, I remember seeing a lot of messages from Baroness Kennedy and Lord Alton challenging the Government’s position. Initially, the line from the Government was that the determination was meant for international courts; that we need an international court deciding it. At the time, there was no international court to even engage with the question of Daesh atrocities. The ICC did not have the jurisdiction. The ICJ could not be engaged. There was no ad hoc tribunal to deal with the question of genocide, despite efforts from a number of countries. In response, the Government came back with a slightly adjusted version, saying that it is a matter for competent courts, so it could be a domestic court—for example, a criminal court.
At the time, there was already one decision from a German court that the atrocities were genocide. Unfortunately, that decision was being appealed, so the Government’s response was, “This is being appealed. We are monitoring. Once we have the final decision, we will decide”. In the meantime, there was a second decision from a German criminal court that was not being appealed. Then, at the beginning of this year, a higher court, an appeal court, confirmed the first recognition of the atrocities as genocide, so at that time there were two determinations. The UK Government did not follow on that.
A few months ago, there was a third determination of the atrocities as genocide and, again, zero response from the Government until August this year, nine years after the atrocities. In the meantime, there were three court determinations from German courts, which have done incredible work using universal jurisdiction. In Germany, we now have three determinations of genocide and five of crimes against humanity, as a comparison.
Chair: In case I have misunderstood, in terms of a returning Daesh fighter who has been engaged in genocide in Syria or Iraq and is a British citizen, the law and the jurisdiction that this country already has does not require there to have been some sort of declaration of genocide.
Dr Ewelina Ochab: No, of course not.
Chair: Therefore, the prosecution authorities can still prosecute by evidence of genocide without there having to have been a decision in the House of Commons or the House of Lords or by the Government.
Dr Ewelina Ochab: Of course, yes.
Chair: I have understood that, and we are clear about that.
Q12 Baroness Kennedy of The Shaws: This question is for Pari, and it feeds back into some of the things that Dr Ochab has been saying. Pari, you described the horrors that took place, and said that women were involved in it too—women who were recruited by Daesh and who went out there, often to marry fighters, but who also became party to the genocidal behaviour that was experienced by the Yazidi population. What form did that take?
Pari Ibrahim: Thank you for this question. This goes back to what Ewelina was saying about evidence-gathering. It is very important that we do not assume that because someone is female she has done nothing wrong and that is it. From news articles, we found out about Shamima Begum and what she had done with the morality police. Omaima Abdi is a German woman who went to Syria, came back and pretended that nothing had happened. She was a returnee, but nobody really questioned her. Eventually, a journalist found her phone. That is how they found information about what she was actually doing in Syria.
I always say that it is so important to look into who committed what crimes and what evidence we can gather. It is concerning to hear that UNITAD has not been asked by prosecutors in the UK for any evidence. The UK was the last prosecutor to contact our organisation for evidence, half a year ago or so. That just shows that the UK is far behind. A lot of people just assume that women have not done anything. When you look at the evidence, it becomes clear that women have purchased slaves on the slave market in Syria. The case of Samantha Elhassani is like that. She is an American. Eventually she was charged only with terrorism, because there is a jury system in the US and law enforcement was too afraid to put that forward. With her husband, she purchased slaves who were Yazidi children, who were eventually raped by her husband.
Not everyone is as innocent as they appear to be. There need to be thorough investigations into what crimes the perpetrators have committed.
Dr Ewelina Ochab: Indeed, in a number of cases of genocide and crimes against humanity that proceeded in Germany, the defendants were women. There was a case against a woman in Sweden for enlisting her six-year-old son to join Daesh. There will be new proceedings very soon in the Netherlands. Twelve women who returned to the Netherlands are being investigated for membership of Daesh, and one of them is being investigated for crimes against humanity. There have been several important cases in different jurisdictions where women were brought to justice because of their involvement with Daesh and their involvement in international crimes. In the report I shared with the Joint Committee on Human Rights, we list some of those cases, but there are more.
Q13 Lord Henley: I want to get back to what we do and do not know. As you told us earlier, we know that 32 people have been convicted, and presumably there will be a public figure, which we can know, of those who have been acquitted or for whom the trial has not gone any further. That must be public, I presume.
As you say, about 450 or so have returned. That is just an estimate. We need to get figures out of the Government on that. We simply do not know why the difference between those two numbers has not been investigated and what the authorities are doing. From all the evidence that has been put in front of us, they are all eligible for at least investigation and, later, prosecution. Am I right in thinking that the problem is that we do not know why and the Government will not tell us?
Dr Ewelina Ochab: That is very true. Again, there have been a number of questions. It is all on the record, including in Hansard. There were several questions in relation to those numbers. Once the figure of 22 convictions was disclosed, the question was indeed, “What happened to the rest?” We are talking about fewer than 10% of returnees being convicted. Unfortunately, there has been no response apart from, “We don’t have this information. There’s no one place where we can find it all, so it would take a lot of time to go through the records”.
This research is urgently needed, especially because we will never deal with the issue of 900 Daesh fighters going to Syria and Iraq and committing horrific atrocities against Yazidis if we do not get on top of everything that was done, including upon their return. Why have we not seen more trials and more proceedings against Daesh fighters?
There was the statement initially, including from the Minister, Baroness Williams, that Daesh fighters posed a threat to national security. I will need to double-check that. I tried really hard to find the response to that question, but the database failed me. The issue that was raised was that in other cases they do not pose a threat or that they are not a threat to national security. I remember seeing a message like that, but I will need to double-check and find it. Once I find it, I will send it over.
Q14 Joanna Cherry: Did you feel that the United Kingdom’s Government was complying with its obligations under human rights law to punish the crimes of genocide and torture? I think I know that your answer would be no, because of what we have been discussing for the last half hour. I just want to tease out one thing. You said that there were Parliamentary Questions about how many times the Attorney-General had been asked to give his or her consent for a prosecution, and there was no response. Was it that there was no answer, or was the answer, “We don’t give out this information, because we do not talk about legal advice”?
Dr Ewelina Ochab: I believe the answer was, “We don’t provide this information”. None the less, prosecutions for genocide depend on consent from the Attorney-General. We need to know how many times the Attorney-General was asked. Otherwise, how can we analyse the responses and whether the law is inadequate? If the problem is that the Attorney-General has never been asked to provide consent, that is a different question. If the Attorney-General was asked and rejected it again and again, we are dealing with a different issue, and then the responses have to be different. This is a crucial question.
Chair: We can ask, can we not?
Joanna Cherry: Yes, we need to follow up on that.
Chair: Joanna has said that she thinks we know the answer to the question, but could you just give us the answer in clear terms? Are the UK Government complying with their obligations under human rights law to punish the crimes of genocide and torture?
Dr Ewelina Ochab: I do not believe the Government comply with their duties under the genocide convention to prevent or punish the crime of genocide.
Baroness Meyer: My question has also been answered quite a lot, but I will put it forward still. How does the UK’s response to the international crimes committed by Daesh compare to other jurisdictions? You spoke in particular about Germany, but could you compare with other countries as well? I also wanted to ask Pari whether she wanted to add anything.
Chair: She has left us. She has had to go to another event.
Dr Ewelina Ochab: I believe that other countries have provided us with better responses to the atrocities perpetrated by Daesh. Looking at investigations and prosecutions in particular, Germany is a good example. Germany opened structural investigations before proceeding with proceedings against individuals, which was crucial. From speaking to victims and survivors, we know that they appreciate the incredible work done there. Germany is a great example of investigating the crimes and prosecuting the perpetrators. We have also seen very important work being done in Sweden, the Netherlands and the US. Ideally, we would like to see prosecutions of Daesh fighters for genocide. It is not that Daesh fighters have not returned to this country. Daesh fighters come under the universal jurisdiction of the ICC Act 2001. Ideally, more work should be done there.
We also need to work on preventing the atrocities. We do not have mechanisms that will identify early warning signs and risk factors. This is such an ignorant response. Other countries, one example being the US, have much better mechanisms. The Elie Wiesel Act is a wonderful example of that. Other countries, including Germany, have introduced or proposed strategies for atrocity crimes. Again, the UK does not have this. A lot needs to change. A lot needs to be done.
Lord Alton asked about the determination of genocide and whether there should be a different approach to it. We have a few proposals. The genocide amendment to the Trade Bill and the Genocide Determination Bill were both mechanisms to give victims and survivors the power to seek the truth and to engage courts to have a determination of genocide. That would empower the victims and survivors to engage in the process. Unfortunately, the genocide amendment to the Trade Bill failed and was replaced by a wrecking amendment that does nothing, because it cannot be engaged. There will only be a few cases where Section 3 of the Trade Act would ever be relevant. Right now, that would be India, but nobody wants to engage on the topic of India. Unfortunately, the only genocide-related provision from recent years is useless.
A proposal of this sort, which gives victims and survivors the power to be engaged, to seek the truth, to seek engagement and to have the atrocities determined to be what they are, is the way forward.
Baroness Meyer: You would say that both on prevention and prosecution we are quite low in comparison.
Dr Ewelina Ochab: Yes.
Baroness Meyer: Why is that? Is it a political thing, or is it all the other things that you have explained?
Dr Ewelina Ochab: In order to engage and prevent, we need early warning mechanisms. Otherwise, how are we going to pick the situations in which we should engage? Of course, there also has to be a greater understanding of the duty to prevent. What does it mean for the UK Government to use all means reasonably available to them to prevent the materialisation of genocide?
The UK Government very often seem to take a step back. There may be a lot happening behind closed doors, but it is very difficult to have much faith in the UK Government doing something behind closed doors when the messages are rather weak in response to so many cases. It is one thing to make statements in support of victims and survivors and to condemn certain atrocities, but it is not enough. It is not enough to implement the duty to prevent genocide.
Joanna Cherry: I am just trying to understand this. It is not my area of expertise as a lawyer. I can understand why people might be resistant to politicians deciding whether there has been a genocide. I do not think we need to look too far from what is going on in the Middle East at the moment to understand the political tensions. Maybe it is because I am a lawyer that I would rather a court decided that on evidence. You are suggesting, Dr Ochab, that survivors and victims of genocide should be enabled to seek a declarator from a court that there has been a genocide.
Dr Ewelina Ochab: Yes.
Joanna Cherry: They should presumably be able to do that in the domestic courts of their jurisdiction rather than having to go abroad. This would be a bit like how people can seek a declarator that their human rights have been breached in our domestic courts. Is that what you are suggesting?
Dr Ewelina Ochab: No. The suggestion made by the Genocide Determination Bill and the genocide amendment to the Trade Bill was that a court here in the UK would have the power to consider applications from victims and survivors asking for a determination of genocide committed, for example, in Iraq or other places.
Joanna Cherry: Yes, that is what I mean. The victims and survivors seek a declaration from their domestic court. They do not have to go to some international court.
Baroness Kennedy of The Shaws: That was the point. In fact, it was an amendment that David Alton and I put into the Trade Bill. We did that, because we kept receiving the response that an international court or a court should decide these things, not politicians. We said, “What is wrong with our courts?” We did make a bar. We did say that it would be at High Court level. A judge of the High Court, on the hearing of evidence, could make a determination so that it could be followed up and prosecutions could take place readily.
Q15 Joanna Cherry: My next question is linked to that. That sort of thing takes time, and evidence has to be led. As I understand it, there is an obligation on the United Kingdom and other states to prevent genocide from happening. You have to see the early warning signs. I have just returned from Srebrenica on one of the Remembering Srebrenica delegations. Clearly, there were suggestions and warning signs for a while that there was going to be a genocide of Bosnian Muslims. To our shame, the West failed. I am not talking about the Dutch peacekeepers who were there; I am talking about all of us. We failed to stop that. It was only after it had happened that America and western powers came in to try to stop the war. What is the trigger point for the United Kingdom’s obligation?
Dr Ewelina Ochab: It is in accordance with the duty to prevent genocide. The International Court of Justice explained what the duty is in its 2007 judgment. It is about the serious risk of genocide. When a state learns or should normally have learned of a serious risk of genocide, that is when the duty to pr event genocide is triggered. Indeed, we do not at all have to wait until a court makes this determination. As you mentioned, it will take a lot of time. We do not have to wait until politicians determine it either. It is the serious risk of genocide. That is why it is key to have a mechanism that will identify early warning signs and risk factors.
Joanna Cherry: What would that mechanism be?
Dr Ewelina Ochab: It could be a domestic mechanism. In the US, a lot of this work is being done by the State Department. It does incredible work monitoring the situation around the world and identifying risk factors and early warning signs. There are several frameworks for the analysis of early warning signs. One is produced by the UN. There is also a Jacob Blaustein Institute framework for this kind of analysis.
Joanna Cherry: Would it be fair to say that every state should have its own internal mechanisms to identify where there might be a risk of genocide? For example, the United Kingdom Government should have some sort of unit or entity—
Baroness Kennedy of The Shaws: It could have a monitoring unit.
Joanna Cherry: It could have a monitoring unit that is looking at what is going on around the world and saying, “Something needs to be done here, or we’re going to see another Rwanda or another Bosnia”.
Dr Ewelina Ochab: Yes, precisely. This is the only way forward. This is the only way we can implement the duty to prevent genocide. It is not enough even to say, “Another country has a monitoring mechanism. We can just rely on the evidence or the information”. There are always some interests involved. Each state should have a domestic mechanism to monitor this.
Q16 Chair: We are just getting information that there might be a vote in the Lords quite soon. I would like to bring us back to what the Government and the agencies could or could not be doing within the current framework of law that already empowers them to do things that they appear not to be doing. It is important for us to understand whether the problem is that all these proposals for prosecution and applications are being made to the Attorney-General and then being turned down, or whether it is that none is being made. We need to identify that.
Further to your answer to Baroness Meyer, we need to hear from those engaged in Germany and the US. We can get written evidence from them about the processes they undertake that clearly get them to the point of prosecutions, which we appear not to have.
At this point, I would like to thank you for your evidence.
Dr Ewelina Ochab: If the Joint Committee on Human Rights would be willing to look into reports on the fourth Daesh Beatle, as he is referred to, there was a report from ITV earlier this week that the former Home Secretary asked the US prosecutor to take the case from the UK to the US. Why did the Home Secretary want this case to be sent to the US rather than dealing with it domestically?
Chair: Do you mean extradition?
Dr Ewelina Ochab: The reporting is not very clear, but it basically says that the Home Secretary asked a US prosecutor to take the case to the US.
Q17 Dr Caroline Johnson: You brought up the issue of children being taken to take part in conflict. These are children who are too young to consent to go. You talked about a six year-old, who clearly has no criminal responsibility for their actions. Does the age of criminal responsibility for this vary depending on the jurisdiction or the country in which these events occur? Can you tell us a little more about how the rules apply to young people?
Dr Ewelina Ochab: I have not looked into the age of criminal responsibility in different countries, so I cannot comment. In the case I mentioned, it was the mother who was being prosecuted, not the child.
Dr Caroline Johnson: I appreciate that, but I want to know how the rules are applied when you have a child who might be 12, 14, 16 or 17 at the point they travel, the point they come back, or the point the crimes were committed, which might be over a period of several years.
Chair: We will have to conclude without hearing your answer, because there is now a Division in the Lords. Thank you very sincerely for your evidence, and thank you to Pari for her evidence. We got a great deal of clarity about the structures and what is apparently not being done, even within the existing powers that obtain, that ought to be taken further. Thank you very much for your great expertise and for your work.
