Maddalena Cogorno – A Crime Without a Court: The Genocide of the Yazidi
The Quasi-erasure of Iraq’s Yazidi
This blogpost is related to the upcoming ‘Erasure in Iraq’ online workshop hosted by MECACS and the Centre for Minorities Research on 15th April, 2024. For further details, please contact Sarah Edgcumbe ([email protected]).
This blogpost was written by Maddalena Cogorno ([email protected]), a post-doc researcher in International Law from the University of Florence, Italy. Maddalena was formerly a Legal Consultant for the Extraordinary Chambers in the Courts of Cambodia. Connect with her on social media on X (formerly Twitter) or LinkedIn.
The Yazidis are a minority ethnic and religious group, based mainly in the North of Iraq, but also in Syria and Turkey[1]. From June to August 2014, the Yazidi community in Iraq’s Sinjar region was largely wiped out by the violent advance of ISIL armed forces into the territory, as they threatened minorities with the choice of conversion or death. Around five thousand individuals were murdered, and hundreds of thousands were forced to leave their homeland, facing violence, abuse, and rape.[2]
The Yazidi community largely sought refuge on nearby Mount Sinjar[3]. However, around three thousand women made the trek east from Sinjar to Raqqa, Syria, facing further violence and falling victim to ISIL human trafficking[4]. In response, the Kurdish militant groups People’s Defense Units (YPK) and Kurdistan Workers’ Party (PKK) set the area free and began a fierce resistance against ISIL forces, which were considered defeated in 2017, with the liberation of Mosul.
The traumatic period from 2014-2017 was a major threat to the identity of the Yazidi group, with their eradication from Iraqi territory being a strong possibility.
Yazidi Refugees. Image Source: Wikimedia Commons. License: CC BY 2.0 DEED
The Reaction of the International Community
Numerous international actors were quick to describe these attacks against the Yazidis as genocide.
In 2015, the UN High Commissioner for Human Rights, referring to the situation of the Yazidis, had already speculated that “such conduct may amount to genocide” after a rapid on-the-ground investigation.[5] In 2016, a Council of Europe resolution stated that “individuals who act in the name of Da’esh […] have perpetrated acts of genocide” and that states should take initiatives based on the presumption that ISIL had committed such genocide.[6]
In the same year, the UN Commission of Inquiry on Syria alleged that ISIL had committed – and was still committing – prohibited acts with the intent to destroy all or part of the Yazidi population of Sinjar, making ISIL members responsible for the crime of genocide.[7]
Bodies like these have a primarily political nature, and hence, the statements they make are not based on investigative findings that are intended to produce evidence for a trial. The evidence is not tested and cross-examined as it would be before a judicial body. Instead, the statements are often based on a broad view of the general political situation[8].
Of a different nature, however, is the United Nations Investigative Team to Promote Accountability for Crimes Committed by Da’esh (UNITAD), which was established with the express purpose of collecting and preserving evidence of crimes committed by ISIL. The chairman of UNITAD at the time, Karim Khan, issued statements like those above, but based on the initial findings of the evidence analysis. He confirmed that the Yazidis, as a religious group, appeared to be victims of genocide by ISIL.
Karim Khan The Special Adviser of the United Nations. Image source: Defence Visual Information Distribution Service. Licence: PDM 1.0 DEED
Genocide: a legal term in a non-legal world
As much as the term “genocide” has moved away from its purely legal conception to become a word used by the public to describe the most heinous atrocities committed by human beings, to punish and repress such acts, it remains closely linked to the definition of genocide elaborated by international law:
[…] genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.[9]
Consequently, despite how frustrating it can sound to non-legal ears, for an authoritative recognition of the crime of genocide against the Yazidis, there must be a judicial organ delivering a ruling, based on due process standards and cross-examination of evidence, which states that there is a violation substantiating those above provided.
The need for judicial recognition of the commission of genocide against the Yazidis has significant implications and practical consequences. First, it allows to identify and punish those responsible for genocidal acts, thus fighting impunity and promoting deterrence. Second, it helps build a verified narration of the events, based on authoritative evidence assessed through cross-examinations, free from non-impartial reconstructions. Third, it is the basis for the execution of the sentence and the consequent emission of reparation orders, which bring healing to the wounded community.
Is there a judge out there?
While UNITAD has the mandate to preserve the evidence of an alleged genocide of the Yazidis, the question arises as to which tribunal – if any – should receive it to determine whether it is indeed genocide committed by ISIL in Sinjar. This tribunal would potentially also hold those responsible accountable, punish them, and order reparations for the victims.
Genocide is a crime recognized under international law, and all states must prevent its commission. As a result, there are many ways to prosecute, from national systems to international tribunals. However, it is not always obvious to find one: this is the case with the Yazidis.
The first theoretical option is a trial before an Iraqi criminal court. However, the Iraqi Penal Code does not cover the crime of genocide, which means that national courts do not currently have jurisdiction over the matter[10]. But even if that were possible, should UNITAD present its evidence of genocide to a court that could impose the death penalty? Wouldn’t that violate UN policy to abolish the death penalty?
International Criminal Court, The Hague. Image source: Flickr. Creator: jbdodane. Licence: CC BY-NC 2.0 DEED
The current inability of national courts could, in principle, leave the ground to the International Criminal Court (ICC), the permanent court for mass crimes.[11] Although there is a possibility to activate the ICC in the Yazidi situation, it seems remote. This is because the ICC’s jurisdiction only extends to crimes committed on the territory of a state party, which Iraq is not, or committed by a person who is a national of a state party. Thus, the ICC could only deal with foreign fighters, who are low-level ISIL members, whereas its prosecution strategy has so far targeted only the “big fish”[12]. Another way to bring a case on the Yazidi to the ICC is through referral by the UN Security Council. However, there could be international relations balances that prevent this, as permanent members such as the United States, Russia, and China, who have political interests in the situation, have veto power[13].
A third attempt to prosecute the genocide of the Yazidi in court refers to the possibility for Iraq to seek international assistance to establish a special court, such was the case for Cambodia, Central African Republic, and Kosovo.[14] Yet, the national Constitution itself prohibits this. In 2005, an amendment to the Iraqi constitution introduced a provision to the effect that «The establishment of special or extraordinary courts is prohibited»[15].
In 2021, the Prime Minister of the 9th cabinet of the Kurdistan Regional Government, Mas’ud Barzani, announced plans to establish a criminal court in Erbil. The main objective of this court would be to prosecute ISIL crimes committed in the region, based on the justification that “The KRG, Iraq, and the international community have a solemn duty to hold ISIL terrorists accountable. Today sets us on a path toward fulfilling our shared responsibility. For the Iraqi people and victims, the world over, justice is overdue. But it will be delivered.”[16] While this is a commendable initiative, its effectiveness for international justice is questionable. Kurdistan is not widely recognized at an international level, and its judicial system is not highly developed[17]. Therefore, it remains to be seen how much expertise this court would have and what level of international support it would receive.
That leaves universal jurisdiction: foreign fighters might be tried in their respective countries, as was the case with Germany and the Netherlands[18]. The product is fragmented, however, due to the different legal practices of the states concerned.
Checkmate!
This quick roundup, certainly tiresome in the eyes of non-jurists, brings to light a critical point of general interest: the traces of history, the balances of international relations, and the delicacies of justice involve, to this day, a veritable checkmate to the official recognition of the Yazidi genocide. The impossibility of activating the International Criminal Court, of establishing a special tribunal, of bringing a national court, and the fragmentary nature of universal jurisdiction, make the qualification of ISIL attacks on the Yazidis as genocide truly marginal to date.
The lack of a (perceived) authoritative and international judgement that acknowledges, with widespread echo, the genocide by ISIL, can generate in the Yazidi community a feeling of incomplete justice and processes of reconciliation with their experience, accompanied by a sense of abandonment on the part of the international community.[19]
Another form of erasure?
[1] Z. Jaffal, “Rape as Genocide Crime in International Criminal Law – The Case of Yazidi Women in Iraq”, in International Journal of Criminal Justice Sciences, Vol. 15, Issue 2, 2020, p. 232.
[2] V. Cetorelli, S. Ashraph, “A demographic documentation of ISIS’s attack on the Yazidi village of Kocho”, in LSE Middle East Centre reports, June 2019, p. 6.
[3] UN Doc. A/HRC/32/CRP.2, “They came to destroy: ISIS Crimes Against the Yazidis”, 15 June 2016.
[4] N. Al-Dayel, “Not Yet Dead: The Establishment and Regulation of Slavery by the Islamic State”, in Studies in Conflict & Terrorism, 2022, vol. 45, issue 11, p. 929-952.
[5] UNHCHR, UN Doc. A/HRC/28/18, Report of the Office of the United Nations High Commissioner for Human Rights on the human rights situation in Iraq in the light of abuses committed by the so-called Islamic State in Iraq and the Levant and associated groups,13 March 2015, para. 17.
[6] Council of Europe, Resolution 2091 (2016), 27 January 2016. Da’esh is a colloquial form for ISIL.
[7] Human Rights Council, A/HRC/32/CRP.2, “They came to destroy”: ISIS Crimes Against the Yazidis, 15 June 2016.
[8] B. Van Schaak, “The Iraqi Investigative Team and Prospects for Justice for the Yazidi Genocide”, in Journal of International Criminal Justice, 2018, Vol. 16, p. 118.
[9] United Nations Convention on the Prevention and Punishment of the Crime of Genocide. Adopted by the General Assembly of the United Nations on 9 December 1948.
[10] Iraqi Penal Code (Law No. 111 of 1969), available at: https://natlex.ilo.org/dyn/natlex2/r/natlex/fe/details?p3_isn=57206.
[11] Rome Statute of the International Criminal Court, 17 July 1998.
[12] W. Ferdinandusse, A. Whiting, “Prosecute Little Fish at the ICC”, in Journal of International Criminal Justice, 2021, vol. 19, p. 763-764.
[13] Article 27, Article 52, UN Charter.
[14] M. Cogorno, Hybrid Criminal Justice: Reconstruction and Development of the Phenomenon, 2023.
[15] Iraqi Constitution, 2005, Article 95.
[16] Statement from PM Masrour Barzani on Draft Legislation for a Special Criminal Court for ISIS Crimes, 28 April 2021, available at https://gov.krd/english/government/the-prime-minister/activities/posts/2021/april/statement-from-pm-masrour-barzani-on-draft-legislation-for-a-special-criminal-court-for-isis-crimes/.
[17] R. Griffiths, “Kurdistan, the international recognition regime and the strategy of secession”, in Federalism, Secession, and International Recognition Regime, 2018, p. 16 ff.
[18] Rechtbank Den Haag, 09/748003-18 & 09/748003-19, 23 July 2019; Rechtbank Den Haag, 09/748012-19, 29 June 2021); Amnesty International, Germany/Iraq: World’s first judgment on the crime of genocide against the Yazidis, 30 November 2021, available at https://www.amnesty.org/en/latest/news/2021/11/germany-iraq-worlds-first-judgmenton-crime-of-genocide-against-the-yazidis/.
[19] UN Doc. A/HRC/54/24, International legal standards underpinning the pillars of transitional justice, 10 July 2023.