Progress or Stagnation? Contextualizing the case of Genocide committed against the Yazidi

Since the inception of ISIS the international community at large has been speaking out against the widespread violence stemming from the terrorist group. Despite the vast array of crimes committed by the Islamic State, a new boundary was transgressed in August of 2014 with the invasion of Mount Sinjar. One the international community had historically vowed to protect against with the phrase “never again”.

On August 3, 2014 with the invasion of Mount Sinjar the Yazidi were subject to highly gendered genocidal tactics by ISIS. The community of 500,000 is ethnically Kurdish and practices a syncretic, polytheist religion that fuses Zoroastrianism, Christianity and Islam making them a protected group. During the invasion the insurgents divided the Yazidi based on sex and age. Males over the age of twelve were divided from the women and children. They were forced to convert to Islam or be killed. The women and children were then brought into an infrastructure created for human trafficking and sexual slavery. They would be bussed to holding facilities stocked with enough food water and mattresses for the hundreds who were held. Within these facilities a census was created for the Yazidi. The victim would be asked her full name, age, town, marital status, and whether she had children. They would then be photographed and appraised, and the majority were sold into sexual slavery to ISIS fighters, while one fifth were given to the Islamic State as spoils of war.  The organization for the sales was overseen by the ISIS bureaucracy, instituting a system of contracts for sales that were notarized by Islamic Courts instituted by ISIS. The best practices of this new form of slavery within the organization were outlined in a report produced by the Islamic State Research and Fatwa department explaining the rules of sale on sabaya (slaves) and their selective interpretation of religious texts to justify these rules. All of these facts display premeditation and intent as required in article 2 of the genocide convention. According to activist reports five thousand Yazidi were kidnapped and entered into this system, and three thousand still remain in captivity. Since this humanitarian crisis began unfolding two years ago there has been a string of international condemnation, which this year has turned into confirmations of genocide.

In 2016 there has been a cascade of governments and international organizations claiming that the actions of ISIS against the Yazidi are genocide. The first was the United States Department of State stepped forward in March with the label. In the following months this was echoed by the U.S. Congress, the Parliament of the United Kingdom, the European Parliament and the Council of Europe. In June a UN mandated Independent International Commission of Inquiry on Syria produced a report stating that the conduct of ISIS amounts to war crimes, crimes against humanity and genocide. Despite many governments and the United Nations sanctioned inquiries claiming genocide, there has been little movement to bring justice to the perpetrators of these crimes. This led a Yazidi representative, Nadia Murad, and her lawyer to the United Nations in September to pursue justice.

At the United Nations Amal Clooney, the human rights lawyer representing Nadia Murad, delivered fiery remarks to representatives. “This is the first time I have spoken in this chamber. I wish I could say I’m proud to be here but I am not . . . I am ashamed as a supporter of the United Nations that states are failing to prevent or even punish genocide because they find that their own interests get in the way.

I am ashamed as a lawyer that there is no justice being done and barely a complaint being made about it. I am ashamed as a woman that girls like Nadia can have their bodies sold and used as battlefields. I am ashamed as a human being that we ignore their cries for help. We know that what we have before us is genocide, and we know that it is still ongoing”.  The events of the Yazidi Genocide and the statements of Clooney bring up some very interesting questions.  Is the international community progressing, and attempting to meet their promise of “never again”? Or is diplomatic complacency leaving unexplored paths to a resolution? While one would assume the answer to these question is quite binary, it seems to lie in a grey area in between.

The international response to the Yazidi genocide does show some progress with the identification and analysis of genocide especially with respect to gender. The analysis of genocide provided by the Independent International Commission of Inquiry on Syria is building upon jurisprudence produced in the last twenty years. For many years rape in conflict was viewed as an unfortunate side effect of war. With intense lobbying, what was previously considered consequence of conflict has been criminalized. The international Criminal Tribunal of the Former Yugoslavia was the first to indict and convict rape and sexual slavery as a crime against humanity and war crime with the Foca case. Further Jurisprudence was created with the Akayesu case, which was the first conviction of rape as a tool of genocide. All of these legal developments with regard to gender-based violence were codified into the Rome Statute, which dictates the functioning of the International Criminal Court. This slowly intensifying focus of the international community of gender-based violence in conflict has been reflected in the report produced by the United Nations. While the report touches on the massacre of the men and boys on Mount Sinjar, the majority of the argumentation and evidence supporting this as a case of genocide revolves around the sexual slavery of the women. The evidence provided includes: rape, sexual violence, sexual slavery, torture, inhumane treatment, forcible transfer, prevention of birth, and killing members of protected group. The history of this jurisprudence combined with the evidence provided in the UN independent human rights inquiry show definitive progress in the recognition of the gendered nature of war crimes. This response can thus be seen as a positive development in the international response.

Despite the encouraging trajectory of international law, there are institutional hurdles leaving resources inaccessible in conflict. This is proven by the Yazidi case. While both Iraq and Syria are parties to the Convention on the Prevention and Punishment of Genocide, neither has ratified the Rome Statute to make themselves members of the International Criminal Court. Because these states are not members, the ICC cannot investigate the genocide of its own. This leaves only two other avenues for the case to enter the court. The first is for the state to voluntarily open itself up to investigation. The Iraqi government has resisted this path because it also opens up actions of government forces to investigation. The final path for the case to the ICC would be through recommendation of the Security Council.  However calls to the Security Council for an ICC investigation into Syria have been vetoed by two Security Council members leading to a diplomatic dead end. With the lack of access to international justice mechanisms, and no regional courts, the only course of action is to pursue justice through domestic courts. This does not present much of a solution.

The Yazidi genocide is indicative of both progress and stagnation in the international mechanisms created to prevent genocide. The progress is clearly seen in the growing jurisprudence, and increased international attention on the gendered nature of war crimes, including genocide. However in some cases, such as this one, the progress means little more than analytical innovation. There are clear signs of stagnation within international justice because of barriers erected for the preservation of sovereignty. With these obstacles intact, and the political nature of the United Nations Security Council, prosecuting even the most destructive crime can become difficult. Because of these facts the phrase “never again” in relation to genocide still cannot be uttered with complete certainty.

Kevin Orsini is an intern in the Centre for Gender Rights at LCILP Global. He holds an MSc in Human Rights from the London School of Economics, and a BA from Canisius College in International Relations and History. His research interests include terrorism, gender-based violence in conflict, and the UN women, peace and security agenda.

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