A/HRC/38/44/Add.1 VI. Transitional justice34 A. Accountability 1. ISIL fighters 46. The Government has embarked on a large judicial endeavour to hold ISIL fighters to account for massive violations of human rights and humanitarian law, primarily using the Anti-Terrorism Law. At the time of the visit, in Mosul alone, 4,383 alleged ISIL members were detained, 2,019 detainees had been sent to Baghdad and 1,004 released. A total of 413 investigations had been completed and sent to the courts. In the view of the Special Rapporteur, the reliance on this law raises a range of serious problems. 47. First, the Anti-Terrorism Law itself is both vague and overly broad. It encompasses serious and petty crimes, ranging from killings to vandalism. The list of crimes for which the death penalty is not only applicable but mandatory is extensive and includes acts whose gravity fall below the threshold of “most serious crimes” necessary to impose such a sentence under international norms. Its definition of terrorism is not in line with the International Convention for the Suppression of the Financing of Terrorism that Iraq ratified in 2012. In addition, the Criminal Procedure Code appears to be set aside for those charged under the Anti-Terrorism Law, which means that defendants are denied their fair trial rights and due process guarantees. This includes the right to be informed upon arrest of the reasons therefor and the charges brought, access to legal representation from the moment of arrest, the right to have arrest and detention status reviewed by an independent and competent judge in a timely manner, 35 and the prohibition of torture to extract a confession.36 48. Second, as presented above, ISIL fighters have perpetrated serious and systematic human rights violations, including war crimes, crimes against humanity and possibly genocide in the territories it controlled and beyond. The investigation and prosecution of these crimes require an appropriate legal framework. The Special Rapporteur does not believe that the Anti-Terrorism Law was designed to respond to such international crimes. 49. To date, the Penal Code does not include provisions covering international crimes. This means that Iraqi courts do not have jurisdiction over the crimes of genocide, war crimes or crimes against humanity committed within its territory. The gravity of the crimes committed by ISIL requires that the federal and regional authorities amend domestic legislation to ensure jurisdiction over international crimes. The people of Iraq, the victims and survivors of the conflict, deserve a legal framework and a judicial response that properly reflect the nature of the crimes committed, which are on a par with atrocity crimes investigated and tried in other parts of the world. 50. In the Kurdistan region, the Commission for Investigation and Gathering of Evidence was established under the High Committee for the Identification of Genocide Crimes and has documented atrocity crimes committed by ISIL. Their documentation efforts have not led to judicial processes or outcomes from a lack of an appropriate legal framework which would permit the issuance of arrest warrants and charging of alleged perpetrators. The Yazidi community is waiting for a “special court” to be established so that perpetrators of crimes — war crimes, crimes against humanity and possibly genocide — against members of that community can be held to account. To allow for such an outcome, the Kurdistan Regional Government must also undertake urgent legal reforms aiming at integrating international crimes within the domestic system. 51. The absence of steps taken by the Government to incorporate international crimes in its domestic legislation is all the more problematic in view of the terms of reference of the 34 35 36 12 The present chapter should be read in conjunction with A/HRC/36/50, paras. 20-21. Extended detention is also a result of interaction between article 109 of the Criminal Procedure Code and the Anti-Terrorism Law. The Government provided a divergent analysis (A/HRC/38/44/Add.4, sects. 4 and 6).