A Genocide Trial in Limbo: The Case of the Yezidis and Their Neighbors

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Since emerging in Iraq, the Islamic State (ISIS) has killed and enslaved thousands of members of the country’s persecuted Yezidis community, while also destroying countless religious and cultural sites in northern Iraq and eastern Syria. More than 18 months ago, the French foreign minister, joined by the the U.N. High Commissioner for Human Rights, began to address such atrocities by calling on Iraq to join the International Criminal Court (ICC) and to accept the court’s jurisdiction over the country’s northern province of Ninawa, where many Yezidis reside. Facing a complex struggle for survival of the state, Iraq has thus far failed to heed the U.N.’s calls. If the Security Council is truly committed to being even-handed in the pursuit of international justice, the Council should refer the Yezidi case to the ICC itself.

An international consensus may be building around the establishment of an international tribunal to prosecute former ISIS fighters responsible for committing crimes against the Yezidis. However, nearly a decade has passed since the bombing-related deaths of up to 500 Yezidis in Qahataniya, and more than two years have passed since ISIS massacred thousands of Yezidis in and around Sinjar, Iraq. Despite these atrocities, no such tribunal has yet been formed. Worse, the ICC has failed to charge thousands of Islamic State fighters originating from countries that have signed and/or ratified the Rome Statute. This is despite the fact that Yezidi leaders, the former chief ICC prosecutor, and genocide scholars issued appeals for such charges over a year ago.

The ICC prosecutor stated that there was not enough proof of “personal jurisdiction” over “those most responsible for mass crimes” to justify a “preliminary examination” of the events in Iraq and Syria, including “mass executions, sexual slavery, rape … torture, mutilation, enlistment and forced recruitment of children and the persecution of ethnic and religious minorities, not to mention the wanton destruction of cultural property.” Journalist Emily Chertoff has suggested that the ICC prosecutor’s rationale for not prosecuting ISIS—namely a lack of personal jurisdiction over high-level leadership—is not persuasive given the court’s prosecution of a low-level offender in Mali who destroyed Muslim tombs in Timbuktu.

However, international involvement in sanctioning such crimes and attempting to create a deterrent to them is not always delayed. For example, after reports of mass killings and rapes of Bosnian Muslim women began circulating in the 1990s, a tribunal was established within a year, and the local Serbian nationalist commander was brought to trial just one year after that. The ICC undertook similar efforts by issuing warrants against Muammar and Saif al-Islam Gaddafi mere weeks after reports of persecution and killings in Libya emerged. This makes the lack of the ICC’s involvement in the Yezidi tragedy especially bewildering given that the resolutions that established the tribunal for Bosnia and that referred the situation in Libya to the ICC cited many of the same atrocities being witnessed in Iraq.

The ICC has been slow in addressing the Yezidi case for a number of reasons. First, Iraq is not a signatory to the ICC statute. For years, the ICC did not investigate crimes in Iraq, aside from those alleged against British nationals. Second, the efficacy of ICC prosecution as a deterrent is doubtful and would likely be less effective than direct international intervention in Iraq. Third, the United Nations lacks voting blocs large enough to generate support for robust measures, such as providing ICC referrals of  organizations like ISIS or embargoes on countries responsible for financing or aiding the organization. Rosa Freedman, and many other human rights scholars, suggest that such blocs are crucial in assembling the votes necessary to pass measures such as those establishing U.N.-imposed safe areas, deploying  intervention forces, or declaring that victims of ethno-religious cleansing should be returned to their homes (as outlined in Chapter VII of the U.N. Charter).

The international community has allowed the Yezidi population center of Sinjar to be destroyed. In the scheme of the U.N.’s priorities, the Yezidis rank similarly to Iraqi and Syrian Christian populations, whose neighborhoods have also been destroyed or occupied. The lack of advocacy for this marginalized community is particularly stark as compared to the campaigns to support Bosnians or the residents of Benghazi. Few U.N. resolutions exist regarding Iraqi and Syrian Christians, or regarding the Yezidis—and the resolutions that do exist lack the measures used to address other similar crises. Arguably, crimes against Iraqi and Syrian minorities have been ignored, not only in an effort to avoid “perceptions of bias,” but also as part of a political strategy towards Syria.

Extremists in Syria continue to target marginalized communities with impunity. Many minorities and “rebels” fled the Islamic State  between 2013-2015, leaving behind desecrated towns and new terror bases. While the US-backed Syrian Democratic Forces (SDF) have made substantial progress against ISIS, a Turkish offensive against the SDF threatens to further divide their formations and to sap their momentum. Amidst the upsurge in terror, countries whose stability is undermined by the violence in the region, such as Syria, Egypt, and others, have lost $614 billion in economic growth.

The U.N. Commission of Inquiry’s report on Iraq and the Yezidis problematically claimed that: “No other religious group present in ISIS-controlled areas of Syria and Iraq has been subjected to the destruction that the Yazidis have suffered….” Three problems arise with this finding. First, the Yezidis have not been destroyed completely, but, as various reports note, have lost between 1 percent and 10 percent of their numbers to murder and abduction since 2014. Second, Assyrian Christians, Kurdish Sunnis, and Shi’a Arabs in Iraq also suffer from similar atrocities inflicted by the Islamic State.

Massacres undertaken by ISIS have claimed the lives of Christians, Kurds, and Shi’a Arabs. At least 70,000 Kurds and hundreds of thousands of Assyrian Christians and Shi’a Arabs have fled ISIS controlled areas. Moreover, Christians in Syria have been subjected to killings, abductions, and deportations by the Islamic State and the “rebel” groups, with which ISIS has at times cooperated. These atrocities have contributed to at least half of Syria’s Christians leaving the country and for nearly 90 percent of Aleppo’s Christians fleeing the city’s militant zones.

The Yezidi experience also resembles that of small indigenous peoples around the world who have suffered persecution, sometimes even to the point of extinction, before an international response was prepared. The Mbuti of the Democratic Republic of the Congo, for example, are declining in numbers, as they are forced from their homelands and subjected to violence by armed militias and rebel groups. The Yanomami of Brazil have also suffered tragic losses as logging and gold mining interests penetrate their traditional lands. Both the Mbuti and the Yanomami continue to seek better protections from the international community.

According to Victoria Tauli-Corpus, chair of the U.N. Permanent Forum on Indigenous Issues, the existence of “oil, gas, timber, minerals on or beneath lands occupied by indigenous people” has created a global “human rights emergency.” The evolution of northern Iraq, northern Syria, and southern Turkey into a zone for the illicit extraction and refinement of oil by terrorist groups mirrors this notion.

Many, from the press to parliaments to intergovernmental institutions, have advocated for a tribunal in Iraq for months—to little effect. This reflects a pattern of delaying and denying international justice where small populations of religious minorities and indigenous groups are concerned. While calls for greater attention to the persecution and killing of the Yezidis in particular are multiplying, they should not be made in a vacuum or amidst silence concerning similar crimes.

Members of Iraqi civil society made appeals some years ago for the creation of international tribunals with the power to sanction those committing international crimes in Iraq, no matter the perpetrator’s nation of origin. Reinvigorating and expanding the restorative justice authority of the ICC might also aid in reviving Yezidi communities and others in the region. Recent reports suggest that vital medical and psychological aid needed by these communities is unavailable in northern Iraq, absent an ICC or other restorative justice program. Interdiction and seizure of illicit oil, antiquities, and state-property traffic could fund such efforts. Finally, there is the need to build a complete record of international crimes committed, the persons and entities that are complicit, and the populations whose interests have been thereby harmed or helped.

In the event that a zone of impunity is allowed to exist in the Middle East or other regions, there will be no guarantee that even after those persecuting the Yezidis retreat in one city, they will not emerge victorious elsewhere. There are already reports from Iraq that those fleeing terror bases in one city are rebuilding them in other places in an atmosphere of corruption and other impediments to law enforcement. As difficult as it is to believe, the situation could deteriorate still further into an economic and subsistence crisis brought on by a proliferation of armed groups with supporters abroad and culminating in famine. While the ICC and those pulling the court’s strings may believe that prosecuting those who killed or enslaved minorities in Iraq should await regime change in Syria, so that a new “moderate” and “democratic” government there can enforce the ICC’s warrants, the resulting chaos may make it impossible to enforce any law, let alone a global one.

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Hannibal Travis is a professor of law at Florida International University College of Law. He is the author of Genocide in the Middle East: The Ottoman Empire, Iraq, and Sudan (Carolina Academic, 2010), The Assyrian Genocide: Cultural and Political Legacies (Routledge, 2017), and ‘‘On the Original Understanding of the Crime of Genocide’’ GSP 7.1 (2012).

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