Amina Mohamed, right, the UN deputy secretary-general, and Ekhlas Bajoo, a Yazidi survivor and activist, Nov. 7, 2017. Not one ISIS fighter has been prosecuted for genocide despite the range of crimes they committed in that realm. MARK GARTEN/UN PHOTO
It has been four years since ISIS launched its genocidal assault on the Yazidi community in the Middle East. ISIS fighters have faced terrorism charges in Iraq and abroad, yet not a single ISIS fighter has been prosecuted for, much less convicted of, genocide. For the Yazidis, justice remains out of reach.
In light of international consensus that ISIS is committing genocide, it might seem surprising that there have been no prosecutions. In Iraq, the reason is deceptively simple — genocide is not a crime. Iraqi law does not provide for the prosecution of any international crimes, including war crimes, crimes against humanity or genocide. Nor is Iraq a party to the Rome Statute of the International Criminal Court, where such crimes can be prosecuted at the international level.
Iraq, however, has a precedent for allowing the prosecution of international crimes in extreme circumstances. In 2003, Iraq temporarily outlawed international crimes through the statute of the Iraqi High Tribunal to prosecute Saddam Hussein-era crimes.
While the trials were criticized for many reasons, including their failure to follow due process and human-rights standards, they resulted in historic domestic convictions for international crimes, including, in one case, genocide.
The passage of new Iraqi legislation allowing the prosecution of international crimes is a priority on the United Nations’ agenda. Both the joint statement signed by the UN special representative on sexual violence in conflict and the terms of reference for the Iraqi investigative team prioritize the adoption of international crimes legislation in Iraq.
In addition, the UN office of the special adviser for genocide has also launched an appeal for universal ratification of the Genocide Convention by Dec. 9, on the Convention’s 70th anniversary. Domestication of the crime of genocide, a requirement of the Genocide Convention, is the goal of this campaign. Although Iraq ratified the Convention in 1959, it has failed to criminalize or otherwise punish genocide under its national law, violating its legal obligations under the Genocide Convention.
When it comes to international crimes, in particular the systematic gender-based crimes that characterized ISIS’s genocide of the Yazidi, legislation is only the starting point. International crimes are often conceived as more difficult to prosecute than domestic crimes, and their prosecution requires specific expertise in gender and international law that is often missing in domestic criminal systems.
When prosecuting genocide, proving the “specific intent” to destroy the community is often perceived to be a huge barrier. The gendered components of the Yazidi genocide add another level of complexity to prosecution, as the gender-based crimes of genocide have historically been overlooked in most genocide trials.
Prosecutors in Iraq and abroad have demonstrated a preference for prosecuting the crimes committed by terrorist groups solely under antiterrorism statutes. To date, every prosecution of an ISIS fighter in Iraq has been done under its 2015 antiterrorism law. These prosecutions have been widely criticized for their haste, lack of due process and human-rights protections and severity of the sentencing, including trials against children as young as 9 years old.
These terrorism charges run the risk of being overturned or discredited in the future. Moreover, when ISIS fighters are executed after a 10-minute trial for terrorism charges, the courts lose the opportunity to prosecute the fighters for the full scope of the crimes they committed, including genocide.
Iraq is not the only jurisdiction where ISIS fighters are being prosecuted for terrorism. When ISIS lost territorial control in Iraq and Syria, thousands of the foreign fighters in their ranks returned to their home countries, including in Britain, France, Germany, the Netherlands and Sweden.
In Europe, as in Iraq, ISIS fighters have been prosecuted only under antiterrorism laws, despite the legislation criminalizing international crimes in their penal codes. By all accounts, it is far easier to prosecute an ISIS fighter for joining or supporting a terrorist group than it is to mount a genocide prosecution.
While prosecuting genocide is complex, the successful convictions from the International Criminal Tribunals for Rwanda and former Yugoslavia demonstrate it is not impossible.
The genocide of the Yazidis continues. Thousands of women and girls abducted by ISIS and forced into sexual slavery are still missing, and nearly 400,000 Yazidis are internally displaced. Four years after the genocide began in Iraq, the community is still waiting for justice.