This Submission is presented to the Office of the Prosecutor (OTP or Office) of the International Criminal Court (ICC or Court) by the Global Justice Center and the Bar Human Rights Committee of England and Wales, requesting the opening of a preliminary examination into genocide and other crimes committed against the Yazidis.
What is the history of international laws against torture?
Akila: The prohibition on torture, at least in modern international law, began with the Universal Declaration on Human Rights that was passed in the 1960s and contained a general prohibition on torture and cruel and inhumane treatment. This prohibition was replicated in the 1970s in the International Covenant on Civil and Political Rights. Prohibitions on torture were also contained in the 1949 Geneva Conventions.
Around this time, in the 70s, Amnesty International began a campaign to get a declaration through the UN or another binding treaty body prohibiting torture. Due to this campaign, in 1975 the UN passed a non-binding declaration on torture. In the ten years after it passed, Amnesty did important documentation and individual reporting that found the declaration wasn't serving its purpose. This began the push and process of advocating for a stand-alone convention against torture. The Convention Against Torture was formally drafted in the early 1980s and was ratified by a number of states somewhere between the late 1980s and early 1990s.
Grant: It was opened up for ratification in 1988, and I believe it came to force in 1994, so it took six years for a critical mass of states to accept it and for it to become enforceable, which is pretty typical of any international treaty. In writing, the Convention the drafters very much had a traditional view of torture in mind. They were thinking of what we might think of as a "James Bond-esque" type of interrogation where there is one person under the control or custody of another person who wants information from that person either to use that information against them in a court of law or for whatever government purposes. So, when you read the Convention, you see a lot of that type of language regarding formal interrogation by a state.
A: Yes, they were considering issues around the French engaging in torture against the Algerians in the 1950s, the British using torture against the Irish in their civil war, those were the recent experiences in people's minds, ideas of the state trying to elicit information. This is also what we see in the US today; when people think of the torture they think of Bush administration, of water boarding, etc.
On the International Day of Commemoration of the Victims of the Crime of Genocide the International Community Must Act to End Ongoing Genocide Committed by ISIS
FOR IMMEDIATE RELEASE—December 9, 2016
[NEW YORK] — Today the United Nations marks the second International Day of Commemoration and Dignity of the Victims of the Crime of Genocide and of the Prevention of the Crime. On this day, as we reflect on the legacy of genocide, yet again the international community is failing to take action in face of an ongoing genocide. ISIS is committing genocide, including through acts of rape and sexual slavery, against the Yazidi and other ethnic minorities, and the world must take immediate action to stop these atrocities.
Daesh, also known as ISIS/ISIL, is committing genocide against religious and ethnic minorities, targeting women and girls in particular. The time is now for the EU to fulfil its international legal obligations to prevent and prosecute genocide. This means the EU must recognize this ongoing genocide, take steps to prevent and suppress it, and call for and facilitate its prosecution.
GJC Staff Attorney Grant Shubin wrote a blog post in Just Security on gender and the Yazidi genocide.
Click here to read the full article.
by Martin Fowler
A year ago, on the one-year anniversary of ISIS’ callous murder of 5,000 Yazidi men and enslavement of 7,000 Yazidi women on Mount Sinjar, The Guardian asked its readers, “is Iraq becoming a forgotten humanitarian crisis?”
Today, on the two-year anniversary of the Sinjar Massacre, the answer is clear: the genocide perpetrated by ISIS against the Yazidi minority is alreadya forgotten humanitarian crisis. In a Newsweekop-ed, GJC Staff Attorney Grant Shubin urges the international community to address the Yazidi atrocity as genocide.
Driven from their homes by ISIS’ frequent attacks, 40,000 Yazidis found themselves trapped on the mountain in August 2014. ISIS killed thousands of Yazidi men and enslaved even more women; those who did not fall into ISIS’ hands faced severe food and water shortages.
In addition to ISIS’ mass killings, their sexual enslavement and rape of Yazidi women constitute genocide and these crimes are prosecutable under international humanitarian law.
Yet, as Shubin notes, the international community focuses on ‘counterterrorism’ – not genocide – in its approach to ISIS, despite ample evidence of the latter and a clear legal responsibility to act to end the genocide.
This collective inaction allows ISIS fighters to continue carrying out genocide with impunity and is an offense to victims of previous genocides, upon whose memories the international community pledged to react more forcefully.
The Yazidi genocide might be forgotten today, but in the future, people will remember our inaction as yet another inadequate and woeful response – a twenty-first century version of the response to Rwanda’s 1994 genocide. But there is still time to change this story – to confront and act upon our responsibilities under international humanitarian law to protect human beings from genocide and prosecute those who commit such acts.
by Jessica Zaccagnino
With the rise of non-state terrorist groups, such as Boko Haram and the Islamic State, the strategic face of war has changed. This shift has subsequently altered the experience of civilians in armed conflict. In this changing landscape, women and girls face distinct horrors in comparison to men.
Groups such as ISIS have been perpetuating genocide against minorities in controlled territories, notably against the Yazidis. These violent extremists target women and men differently when committing crimes of genocide. In addition to systematic murder, ISIS subjects women to sexual slavery, forced marriages, rape, forced impregnation, and other gender-specific crimes of genocide. Despite the distinct tactics that are being used to commit genocide, the gender reality of genocide is often overlooked when enforcing the Genocide Convention. Global Justice Center’s Genocide Project fights against the gender-gap in responding to crimes of genocide perpetrated by extremist groups, like ISIS, and seeks to ensure that the laws of war work for, and not against, women.
On the morning of August 3rd, 2014, ISIS forces entered the Sinjar region in Northern Iraq, only months after declaring itself a caliphate in parts of Iraq and Syria. The region has a high population of Yazidi people, an ethno-religious Kurdish minority that has been heavily targeted by the ISIS insurgency. In Sinjar alone, 5,000 men were killed, thousands of women were systematically raped and sold into sexual slavery, and over 150,000 Yazidis were displaced. When ISIS took Sinjar, men and boys over the age of ten were separated from women and children, and most, as evidence of mass graves suggests, were killed. In the process of fleeing, an estimated 50,000 Yazidis were trapped in the Sinjar Mountains, with ISIS forces surrounding them. Although a majority of those trapped were able to eventually escape the mountainous region, the Sinjar Massacre left thousands dead, and thousands more enslaved. Yazidi women “have been systemically captured, killed, separated from their families, forcibly transferred and displaced, sold and gifted (and resold and re-gifted), raped, tortured, held in slavery and sexual slavery, forcibly married and forcibly converted.” These women have been targeted by ISIS solely on the basis of their gender and ethnicity, and such acts make clear ISIS’ genocidal intent to destroy the group in whole.
Despite the air drops of food, water, and supplies, the Yazidis trapped in the mountain siege survived in grim conditions—circumstances intended by ISIS to destroy the group. In addition to air drops, President Obama invoked the need to “prevent a potential act of genocide” as a justification for launching air strikes to rescue those trapped in the Sinjar Mountains. Just this year, Secretary of State John Kerry officially declared that ISIS is committing genocide. It is vital for the United States to recognize the unique aspects of genocide that specifically target gender within the persecution of Yazidis when taking action against ISIS. Although the United States has taken a big step in declaring ISIS’ genocide, the United States must move beyond words. In fact, the United States is required by the Genocide Convention to take action against genocide. Yet, as the two-year anniversary of Sinjar approaches on August 3rd, the United States has still not taken any necessary further steps to combat ISIS’ genocidal crimes.
Grant Shubin, a Staff Attorney at GJC, and Pari Ibrahim, the Founder and Executive Director of the Free Yazidi Foundation published an op-ed in Newsweek about the state of Yazidi women on the second anniversary of the Sinjar Massacre.
Click here to read the full article.
On July 17, Global Justice Center celebrated International Justice Day and reminded of the ongoing Yazidi Genocide, despite promises of #NeverAgain.
by Jessica Zaccagnino
On March 17th, Secretary of State John Kerry declared that ISIS is committing acts of genocide against Yazidis and other minority groups in Iraq and Syria, launching the United States into a complex discussion of how to feasibly prosecute ISIS. Although there is not universal ascension to the Genocide Convention, customary international law has enshrined obligations of the international community to prevent, suppress, and punish perpetrators of genocide. Akila Radhakrishnan, the Legal Director of the GJC, emphasized in an interview that “the prohibition on genocide is actually considered to be so widely important that it has attained an even higher status of customary international law called jus cogens,which means it is absolutely non-derogable in every context.” The United States, party to the Genocide Convention, is required by both international conventions and customary international law to take action against genocide. Declaring that ISIS is relatively easy, but actually prosecuting ISIS poses a unique set of challenges in part due to their non-state actor status: logistical, legal, and otherwise.
The prosecution of ISIS for genocide raises numerous, difficult questions: first, what body should carry out trials? In a resolution released days prior to Kerry’s announcement, Congress indicated support for trial in an internationally-run court, such as the International Criminal Court, or an entirely new tribunal, would be the best course of action. The White House has yet to indicate a plan of prosecution. Similar questions of logistics, such as who to hold responsible and where to hold large numbers of detainees, have also been raised. The existence of a defined administrative hierarchy within ISIS raises questions as to what extent subordinates should be held accountable for acts planned by their superiors; however, this is a question that plagues most tribunals.
In terms of prosecuting foreign fighters, it will likely be easier for the United States to turn over detainees to Iraq, an ally, than to Syria, as the US has been supporting rebel groups wishing to oust President Bashar Assad. Since ISIS utilizes many foreign fighters, estimated at 27,000, the use of national jurisdiction over these fighters may open up opportunities for a case in the ICC, even though Iraq and Syria are not party to the Rome Statute, or domestic trials in the US if extradited. The final problem is one of evidence: genocide is a very difficult crime to prove. Due to the “specific intent” portion of the definition, more extensive evidence is required than general charges of crimes against humanity or war crimes. This means, in order to prosecute ISIS, there must be a careful collection of evidence, all while in an active war zone.
To successfully prosecute ISIS for crimes of genocide, the US and international community will have to parse through numerous complex challenges in the near future and focus their energy not on only combatting ISIS militarily, but also constructing a clear prosecutorial strategy.
Although prosecuting ISIS for crimes of genocide poses a unique set of challenges, they are not impossible to overcome. The United States and the global community have a duty to prosecute crimes of genocide under international humanitarian law. ISIS’ prosecution, with the US playing an active role, is of utmost importance, especially now that both the US and UN’s Commission of Inquiry on Syria have come to the consensus that ISIS is perpetuating genocide. Countries must engage with these challenges proactively and address them head on in order to make substantial progress towards prosecution.
Clickhere to read the full interview with Akila Radhakrishnan and Grant Shubin, lawyers at Global Justice Center, about the US’ declaration of ISIS’ genocide.
Thinking of Yazidi Women and Girls on the International Day for the Elimination of Sexual Violence in Conflict
On June 19, as the international community observes the International Day for the Elimination of Sexual Violence in Conflict, rape remains a central reality of war for women and girls around the world.
War rape is both a historical and contemporary part of war: it is not simply a byproduct of fighting but often serves as a central military tactic. In Yugoslavia in the 1990s, “the systematic rape of women … [was] in some cases intended to transmit a new ethnic identity to the child.” Yugoslav women were “often […] interned until it was too late for them to undergo an abortion,” thereby ensuring the creation of a new ethnic reality.
Today, in ISIS controlled territories, ISIS leaders “elevate and celebrate each sexual assault as spiritually beneficial, even virtuous.” Multiple accounts by former ISIS captives detail month-long rapes, severe physical and mental trauma, and forced pregnancies.
War rape thus serves to traumatize and create fear in the short term and to extend genocidal effects by producing new ethnic identities in the long term.
Yet despite the horrific psychological and biological results of war rape the United States’ Helms Amendment precludes any US humanitarian aid from being used for abortion services.
Even though the Hyde Amendment, a similar domestic amendment to the Helms Amendment, includes exceptions for rape and cases in which the mother’s health is in danger, foreign victims of war rape are not afforded these rights.
In 2015, Obama noted that the “Golden Rule,” that “seems to bind people of all faiths,” is to “treat one another as we wish to be treated,” — to “love thy neighbor as thyself.” If victims of war rape are to receive the medical care they deserve, the Obama Administration must apply this Golden Rule not only to domestic victims of rape, but to war rape victims in other countries as well.This involves recognizing their rights to non-discriminatory medical treatment and issuing an executive order that limits the scope of the Helms Amendment.
Janet Benshoof, GJC President, responds to an article in the NY Times, “Lack of Plan for ISIS Detainees Raises Human Rights Concerns” (front page, May 12).
Read Legal Director, Akila Radhakrishnan's, post on the International Coalition for the Responsibility to Protect's blog about gender and genocide.
Click here to read the full article.
Read Global Justice Center Legal Director Akila Radhakrishnan’s explanation of the gender components of genocide in the International Coalition for the Responsibility to Protect Blog.
“It’s not enough to just recognize that acts such as sexual violence, abductions, enslavement, forced abortion, and forced impregnation—acts which are disproportionately committed against women—of protected groups can constitute genocide. Rather, the commission of such acts needs to impel action for states and international actors to fulfill their obligations to prevent, suppress and punish genocide. "
Daesh is perpetrating genocide of the Yazidi, Christian, and other minorities as acknowledged by US Secretary of State John Kerry, the EU Parliament, Iraq, and others. The 1948 Genocide Convention was passed to protect distinct values central to humanity: the right of protected groups to their continued existence and the right of all people to live in a world enriched by diversity and marked by tolerance. Genocide is defined as acts to destroy national, ethnic, racial or religious groups, as distinct entities. The joint attacks against Daesh in August 2014 to “avert potential genocide” of the Yazidi saved lives but did not stop Daesh from continuing to perpetrate genocide.
The international legal framework designed to keep the world free from genocide is distinct from that of other international laws and protects distinct values. Strategies to counter terrorism including, to prosecute and deny “safe havens” for terrorists, without more, do not fulfill the nonderogable obligations of states and international entities to stop genocide.
The Genocide Convention’s effectiveness in deterring genocide depends on states fulfilling their obligationsto take “all possible measures” individually and collectively to prevent, suppress, and punish genocide. The failure of states and international organizations to address Daesh genocide crimes undermines the legitimacy of the Genocide Convention and the effectiveness of counter terrorism efforts.
On Sunday, NBC Nightly News interviewed Vian Dakhil, the only Yazidi woman in the Iraqi Parliament. Over the past year, Dakhil has helped over 1,000 Yazidi women and girls escape from ISIS territory, where they have been routinely captured and enslaved by ISIS militants. Due to a lack of state action to protect the Yazidis from genocidal crimes, individuals such as Dakhil have been forced to act to help defend these vulnerable women. In 2014, Dakhil made headlines with her impassioned speech to the Iraqi Parliament, where she cried, “My people are being slaughtered…I speak here in the name of humanity. Save us! Save us!”. Her continued efforts to defend the Yazidis from ISIS atrocities have made her the number one woman on ISIS’s hit list.
Women’s Initiatives for Gender Justice just released a Special Issue of their newsletter focusing on two letters GJC has sent to the ICC asking them to address gender-based crimes. The letters call on the ICC to look at the genocidal crimes being committed against women and girls by groups like Boko Haram and ISIS.
Click here to read the full newsletter.
2015 marks the 15th anniversary of the adoption of Resolution 1325 on Women, Peace and Security, which requires parties in a conflict to respect women’s rights and support their participation in peace negotiations and in post-conflict reconstruction. Yesterday the Security Council held its annual open debate under Argentina’s presidency calling upon UN Member to implement resolutions on women, peace and security. This year’s theme focused on the situation of women refugees and internally displaced persons (IDPs) around the world.
With numerous crises from Iraq, Nigeria, and Syria to Somalia and Mali and the increase of extremists take control of territory, the shifting trend in conflict is seeing a heightening of targeted violence against women, girls and their communities, warned the UN Secretary-General whose statement was delivered by the Executive Director of UN Women Ms. Mlambo-Ngcuka. The Executive Director in her own statement stressed that women are among the most vulnerable group and the primary subject to violence. But it is women who should be empowered by giving them a voice in decision-making in order to protect them. She noted that “key decisions are still made behind closed doors, deaf to the voices of those directly affected.” Increasing the representation of women in leadership roles and electing them to governing bodies is a way to ensure their protection, as has been seen in Haiti and the Central African Republic.
One of the important issues raised by Member States was that rape is still too often used as a weapon of warfare with a devastating impact on victims of war. Gender based violence also contributes to displacement and women fleeing in hope for safety. Speakers admitted that most refugees are women, and they face a lack of medical assistance which they desperately need. For instance, services that enable the safe termination of pregnancy are fundamental for women to restore their lives after rape and yet are continually denied due to US policy. Failure to provide these services violates the rights of victims of rape.
A highlight of the Open Debate was the statement by the award winning Iraqi women’s rights lawyer Suaad Allami who delivered her statement on behalf of the NGO Working Group on Women, Peace and Security and spoke first-hand of her experiences in working with refugees and the threats to women’s rights by extremist groups such as ISIS. She paid tribute to her friends and colleagues who recently have been killed defending women’s rights. She ended her statement with applause and spoke the last words in Arabic “All human beings have the right to be safe and live a life of dignity.”
Click here to read the Presidential Statement on behalf of the Security Council.