A/HRC/38/44/Add.1
the preparation of case files so that formal investigations could proceed at a later date and
formal accountability be delivered.
70.
While the Government, including federal, regional and local officials, is ultimately
responsible for transitional justice, a range of other actors can play a crucial role in ensuring
these obligations are effectively and peacefully implemented. Religious and tribal leaders in
particular must take stock of the transitional challenges, present and forthcoming, and
respond accordingly, providing guidance to their members and followers, grounded in the
foremost necessities of justice, reconciliation, peace and security. Almost three years ago,
on 12 February 2015, Grand Ayatollah al-Sistani issued a fatwa on “Advice and guidance
to the fighters on the battlefields”, calling on all fighters to respect international
humanitarian law principles. The new transitional phase demands of all religious leaders in
Iraq that they exercise similar foresight and positive influence over the behaviour of all
actors, at national and local level, and support reconciliation and transitional justice efforts.
71.
A positive example of documenting atrocity crimes committed since 2014 is the
Commission for Investigation and Gathering of Evidence of the Kurdistan Regional
Government (see also para. 50 above). The Commission, headed by an investigative judge,
has documented a multitude of crimes committed by ISIL, including mass killings,
disappearances, sexual violence, enslavement, and use of child soldiers, through
interviewing dozens of survivors and witnesses, excavating mass graves and conducting
other forensic investigations. In doing so, they have been able to identify a range of
perpetrators. However, the prosecution thereof will depend on the establishment of a proper
legal framework integrating measures against international crimes within the domestic
system of both the Federal and Regional Governments.
72.
The United Nations Development Programme has also set up a project supporting
reconciliation efforts in Iraq, which will include the establishment of a three-fold
mechanism, including a citizens’ archive for gross human rights violations, with
recommendations for follow-up. The project, to be implemented throughout the country in
2018 and 2019, will involve collecting and documenting victims and survivors’ testimonies
about the violations they endured and witnessed.
C.
Certificates of absence50
73.
During the most recent conflict, thousands of men, women and children from all
communities have been forcibly disappeared, the vast majority of whom remain
unaccounted for. Within the Yazidi community alone, an estimated 6,450 persons are
missing with most feared killed and placed in unmarked individual or mass graves. In and
around Fallujah, individual women interviewed by the Special Rapporteur have lost up to
15 male members of their immediate families, including their husband, sons and brothers,
the youngest being 13 or 14 years old. Those left behind are facing extreme hardship as a
result, including for having lost their main breadwinners.
74.
The uncertainty about the fate of these persons causes relentless suffering to their
relatives. Knowing what happened to the disappeared is critical for relatives, their
communities and Iraq as a whole to be at peace. Getting to the truth will require concerted
efforts in tracing the missing, which sadly will need to include the excavation of mass
graves.
75.
Other pressing needs related to the missing, include legal and financial needs.
According to government officials, Iraqi law provides for something amounting to a
“certificate of absence”, which is issued by a judge on the basis of a police report and valid
for three years, after which a death certificate may be issued. Families also have the right to
compensation or reparation for the disappearance of their relatives.
76.
However, based on information received during the visit, it appears that these
certificates may be withheld from families of disappeared suspected ISIL members,
50
16
The Government provided additional information (A/HRC/38/44/Add.4, sect. 16).
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