Five Years After Genocide, Yazidis are Still Waiting for Justice

By Maryna Tkachenko

“Today, the Yazidis have largely been abandoned” — Nadia Murad, Nobel Peace Prize recipient and Yazidi survivor

August 3, 2014 changed the Yazidi community of Sinjar forever. The terrorist group Daesh killed and enslaved thousands of Yazidis, members of a small religious minority in northern Iraq that have been historically persecuted for being “devil worshippers.” In addition to carrying out coordinated attacks of violence against the group as a whole, Daesh explicitly targeted women and girls by inflicting widespread sexual violence in the form of rape, torture, and forced marriage. These gendered acts of the Yazidi genocide served as tools for recruitment, conversion, and forced indoctrination.

Five years later, despite a growing body of evidence, no Daesh fighter has been prosecuted for genocide of the Yazidi. In 2016, the United Nations recognized the attacks as a genocidal campaign, but Yazidis are still waiting for justice, hoping to return one day to their homes on the Sinjar Mountain.

Iraq: Submission to the United Nations Universal Periodic Review

Submission to the UN Human Rights Council

Universal Periodic Review – 34th Session

Iraq

I. Introduction

  1. In advance of the Human Rights Council’s forthcoming review of Iraq, it is critical that the Council pay particular attention to the need for fundamental reform of Iraq’s legal system in order to achieve justice for Daesh’s victims, and more broadly for the people of Iraq. As currently codified, Iraq’s criminal laws do not punish the most egregious aspects of Daesh’s sexual and gender-based violence. If prosecuted under these laws, basic features of Daesh’s crimes will go unpunished, such as rape with objects, forced marriage, and gender-motivated torture, as well as the international atrocity crimes of genocide, crimes against humanity, and war crimes.
  2. In the last Universal Periodic Review cycle for Iraq, multiple recommendations were made and accepted by the country with respect to ensuring national legislation was fully in line with international standards,[i] combatting discrimination against women in law and in practice,[ii] and guaranteeing respect for international humanitarian law and human rights.[iii]  Iraq has failed to take meaningful action on these recommendations.
  3. This submission highlights a number of concerns over Iraq’s criminal laws as violations of Iraq’s obligations under the treaty bodies to which it is a party – including the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Prevention and Punishment of the Crime of Genocide, and the Geneva Conventions.
  4. A fundamental principle of international human rights law is the protection against discrimination. The Universal Declaration on Human Rights (UDHR) and the Charter of the United Nations – as well as CEDAW,[iv] CAT, and the ICCPR – have all codified the principles of non-discrimination and equality.[v] As the UDHR states, “All are equal before the law and are entitled without any discrimination to equal protection of the law.”[vi]These principles of equality and non-discrimination are part of the foundations of the rule of law of human rights. Under these principles, states are required to ensure that women, on the basis of equality of men and women, fully enjoy the benefits of the rule of law.
  5. Iraq’s criminal laws as rendered fail to provide protections for women and girls in violation of this requirement. Specific examples where legal reform is needed include amending provisions regarding rape, forced marriage, torture, as well as domesticating the international crimes of genocide, crimes against humanity, and war crimes in line with international standards. The definitions of these crimes leave out various forms of violence against women that are protected under CAT, ICCPR, CEDAW, and the Geneva Conventions. Until these criminal laws are reformed, Iraq will continue to be in violation of its human rights obligations.
  6. Not only are women and girls entitled to non-discriminatory application of the rights contained within these treaties, but so too are they entitled to non-discriminatory reparations in the event that those rights are infringed.[vii] If Iraq’s criminal laws are left unchanged, Daesh’s female victims will be unable to achieve meaningful justice or seek proper redress for the unique harms they faced on the basis of their gender and sex.
  7. Under international law, survivors of sexual and gender-based violence are entitled to reparations including guarantees of non-repetition.[viii] One measure of guaranteeing non-repetition is “[r]eviewing and reforming laws contributing to or allowing gross violations of international human rights law and serious violations of international humanitarian law.”[ix] As the CEDAW Committee has recommended, State parties should “mandate institutional reforms, repeal discriminatory legislation and enact legislation providing for adequate sanctions in accordance with international human rights standards.”[x] Such legal reform is required to ensure “women and girls are able to move forward and reconstruct their lives without facing discrimination.”[xi]
  8. Complete gender justice will take a fully transformative agenda with actors at the local, regional, and international level finally recognizing, redressing, and remedying the gender-based discrimination that underlies the treatment of women and girls. Such effort includes reforming Iraq’s criminal laws to bring them in line with international standards, in order to safeguard better protections for victims from violence and ensure access to justice.

II. Iraq’s Discriminatory Criminal System

A. Domestic Crimes

        10.  Iraq’s definition of rape, forced marriage, and torture are a few examples of how the country’s criminal laws collectively fail to fully define, deter, prevent, punish, or redress sexual and gender-based violence crimes. Clearly defining these crimes in line with international standards is an important step in implementing the Iraqi Government’s obligations to eliminate discrimination against women.

Rape

  1. Iraq’s rape laws are not in line with international standards and do not encompass the number of ways that rape was perpetrated and used by Daesh against the Yazidis. Specifically, Iraq’s Penal Code Article 393 defines rape as “sexual intercourse with a female without her consent or…buggery with any person without their consent.” Article 393 is not gender-neutral and is limited only to acts of “sexual intercourse” (vaginal intercourse)—leaving out Daesh’s serious violent and invasive sexual crimes that were beyond “sexual intercourse or buggery” (e.g. by including penetration by objects and other body parts). “Consent” is central to Iraq’s definition of rape (rape only occurs where there is lack of consent).[xii] However, the term “consent” is not defined, clarified, or otherwise described anywhere in the Penal Code’s rape provision. Prosecutions focusing on “consent” inherently focus on semantics about the victims’ words or actions and do not properly consider victims whose enslavement, age, or subjection to threats or coercive environments prevented genuine consent.[xiii]
  2. A broader, more comprehensive criminal definition of rape is necessary, especially during conflict or mass atrocities, to account for rape’s multifarious methods, purposes, contexts, individual motives, and intra-group dynamics. For example, beyond “sexual intercourse,” Daesh used rape as a tool for recruitment and to erode community cohesion.[xiv] Criminal accountability should not be limited to an antiquated focus on sexual intercourse and consent; rather, it should reflect the diverse and varied ways and reasons Daesh committed rape.

Reporting Rape

  1. Article 3 of Iraq’s Criminal Procedure Code establishes that prosecution for rape only begins if the victim affirmatively acts.[xv] Complaints relating to rape will not be accepted more than three months after the victim “became aware of the offence or from the disappearance of any compelling excuse” which prevented the complainant’s submission of the complaint.[xvi]  If the victim withdraws their complaint, they “lose their right to criminal justice.”[xvii] Penal Code Article 385 criminalizes “any person who has carnal knowledge of a girl to whom he is not married with her consent when she has not yet reached the age of 18.”[xviii] A prosecution of this crime, however, “may only be brought on the basis of a complaint by the victim or her ancestor, descendant, brother or sister.”
  2. International standards do not require victim initiation or participation for prosecution of rape or sexual violence.[xix] Such provisions can cause survivors of sexual violence to relive or confront their trauma in forced and highly destructive ways. They presuppose what women’s responses to such violence should be and negatively affect women’s rights to equality before the law, fair trial, and effective remedy.[xx] Further, victims of rape and sexual violence may be unwilling to initiate such proceedings.[xxi] In conservative societies like Iraq, women face societal barriers in reporting sexual violence crimes, including fear of retribution from, or against, family members.[xxii] Women and girls in Daesh-controlled territory were brought to houses, sometimes by the hundreds, and group-by-group taken for rape.[xxiii] The sheer volume of rape occurring at the hands of Daesh, coupled with the fact that many victims do not know and have no way of identifying their rapists, means that victim-initiated complaints are next to impossible in practice. For these reasons, such discriminatory requirements should not be any part of accountability for rape generally and must not be a feature when holding Daesh accountable.

Forced Marriage

  1. Article 9 of Iraq’s Personal Status Law criminalizes forced marriage: “no relative or non-relative has the right to force marriage on any person, whether male or female, without their consent.”[xxiv] Where there has been a forced marriage, either a specialized “personal status” court or the victim must refer the case to criminal justice authorities.[xxv] Article 9 further establishes that “[t]he contract of a forced marriage is considered void if the marriage is not yet consummated.” However, the law does not automatically void forced marriages that have been consummated.[xxvi] Additionally, Iraq has a reservation to CEDAW Article 16, which calls on States to take measures to eliminate discrimination against women with respect to marriage.
  2. Forced marriage is not specifically described within international criminal law, but has been prosecuted as the crime against humanity of an “inhumane act,” which requires “great suffering, or serious injury to body or to mental or physical health.”[xxvii] International human rights law, including the ICCPR to which Iraq is a party, also protects the right to marry freely, and that women’s “right to choose when, if, and whom she will marry must be protected and enforced by law.”[xxviii] Iraq’s Personal Status Law Article 9 does not define the types of actions that constitute marriage by “force” (e.g. by threats of violence) or the types of “consent” that are considered invalid (e.g. under duress). As such, the law is vague and does not fully account for the ways by which women and girls were systemically and en masse forced or otherwise coerced into marriages with Daesh fighters.[xxix] This gap is a particular risk as Iraq continues to prosecute people for “membership or support” of a terrorist organization, potentially including women and girls whose only “membership or support” of Daesh was having been forcibly married to a Daesh fighter.[xxx] Although forced marriage is prohibited, the Iraqi Government makes few efforts to enforce the law, and traditional forced marriages of girls continue, especially in rural and Daesh-controlled areas.[xxxi]

Torture

  1. Article 37 of the 2005 Constitution prohibits “all forms of psychological and physical torture and inhumane treatment,” barring confessions obtained under torture and ensuring victims’ right to seek compensation for “material and moral damages incurred.”[xxxii] Both the Iraq Criminal Procedure Code and the Penal Code prohibit the use of torture “and other illegal methods” to obtain confessions or admissions, when used by public officials.[xxxiii] Iraq’s Penal Code outlaws cruel treatment, defining it as treatment by a public official that causes a loss of dignity or physical pain.[xxxiv]
  2. The CAT, to which Iraq is a party, defines torture in such a way to cover specific and sufficiently broad conduct to capture the various means and ways torture is actually carried out. It acknowledges that torture can be physical or mental, that it can be performed because of discrimination, and that it can be done because of the mere acquiescence of a public official. This breadth allows for the gendered harms perpetrated by Daesh, including rape, sexual assault, trafficking, slavery, forced and child marriage, to be fully captured[xxxv]—and is therefore essential to ensuring full gender justice for Daesh crimes. Under CAT, Iraq is obliged to “ensure that the principle of the absolute prohibition of torture is incorporated into its legislation and ensure its strict application.”[xxxvi] None of Iraq’s laws on torture define the types of conduct that constitute torture—they merely contain declarations that “torture” is prohibited. Accordingly, there is no clarity on what constitutes “torture” under Iraqi law. Without more specificity, conduct amounting to torture carried out against women and girls is often ignored.  

Recommendations

  • The Government should adopt a legal definition of rape in line with international standards.
  • The Government should remove the requirements of victim initiation or participation for prosecution of rape or sexual violence.
  • The Government should criminalize and punish forced marriage.
  • The Government should adopt a definition of torture in line with CAT.
  • The Government should remove its reservations to CEDAW, specifically to Article 2(f) and (g) and Article 16, and take steps to fully implement CEDAW.
  1. International Crimes

        19. The broad and systematic nature of Daesh’s violence elevated their crimes beyond the traditional domestic framework and into international concern. Daesh committed all of the core international atrocity crimes of genocide, crimes against humanity, and war crimes; yet none of these have been formally outlawed by Iraq. Failing to investigate and prosecute international atrocity crimes as distinct crimes with specific gendered harms misses an opportunity to build a complete historical record, honor the experiences of victims, and ensure full accountability for Daesh’s criminality.

Genocide

  1. Iraq has no domestic law prohibiting or punishing genocide,[xxxvii] nor does it have criminal prohibitions on persecution or any other law that encapsulates attempts or acts aimed at destroying the Yazidis or eradicating those based on group identity. Iraq is a party to the Convention on the Prevention and Punishment of the Crime of Genocide,[xxxviii] but has not complied with its treaty obligations to make genocide a crime in the Iraqi Penal Code. Genocide is also a crime under treaty and customary international law, which imposes obligations on governments and international entities to prevent, suppress, and punish its commission.[xxxix] This means the government of Iraq, other states, and international entities are required to take all measures reasonably within their means to punish the sexual and gender-based crimes committed in furtherance of Daesh’s genocide, and the failure to do so violates their international obligations.[xl]
  2. The absence of a law criminalizing genocide means that the specific nature of Daesh’s intent to destroy the Yazidis will not, and indeed cannot, be punished. There will be no accountability for the fact that Daesh intentionally targeted Yazidis for destruction with acts including killing, rape, forcible transfer, and enslavement.[xli]

Crimes against Humanity

  1. Iraq does not have domestic legislation penalizing crimes against humanity.[xlii] Thus, Iraq’s Penal Code does not properly account for the organized, widespread, or systemic attacks that characterize Daesh’s crimes. The specific prohibition of “crimes against humanity” is intended to name and criminalize conduct that is viewed as an attack on the very quality of being human.[xliii] Indeed, “the crime is so heinous that it is an attack not just upon the immediate victims, but also against all humanity, and hence the entire community of humankind has an interest in its punishment.”[xliv] Central to this crime is the widespread and systematic nature of the perpetrator’s conduct. Daesh crimes fall squarely within this definition. The efficiency and uniform manner in which Daesh committed its sexual and gender-based violence are central to its criminality, and therefore must be accounted for in Iraq’s efforts at justice.
  2. Without a dedicated law, Iraq is incapable of punishing, stigmatizing, or memorializing the egregious systemization and scale of crimes Daesh committed, not only against individuals but the community as a whole. By not codifying crimes against humanity domestically, justice for women and ethnic minorities is precluded and amounts to discrimination.

War Crimes

  1. Iraq does not have domestic legislation penalizing war crimes. Iraq is a party to the four Geneva Conventions of 1949 and Additional Protocol I of 1977,[xlv] and accordingly has international obligations to criminalize and hold accountable war criminals. In fact, under the Geneva Conventions of 1949, Iraq has legal obligations to pass legislation prohibiting and punishing war crimes.[xlvi] These obligations remain unfulfilled as long as the Iraqi Penal Code does not specifically incorporate and penalize war crimes.
  2. Iraq must not fail to prosecute Daesh’s sexual and gender-based crimes for what they were: war crimes. Without special protections, the fact that Daesh engaged in and carried out their atrocities under the unique legal circumstances brought on by war will not be specially punished. Indeed, dedicated laws are required to protect civilians from death, rape, torture, or any other intentional harms that accompany armed conflict.

Recommendations

  • The Government should adopt a law criminalizing genocide in line with the Convention on the Prevention and Punishment of the Crime of Genocide.
  • The Government should adopt domestic legislation penalizing crimes against humanity.
  • The Government should pass legislation prohibiting and punishing war crimes in line with its legal obligations under the Geneva Conventions of 1949.

Download the Submission


[i] Human Rights Council, Report of the Working Group on the Universal Periodic Review – Iraq, p. 15, U.N. Doc. A/HRC/28/14 (Dec. 12, 2014) (“127.36 Take any proper measure in order to keep national legislation fully in line with international standards and obligations (Italy)”).

[ii] Human Rights Council, Report of the Working Group on the Universal Periodic Review – Iraq, p. 18, U.N. Doc. A/HRC/28/14 (Dec. 12, 2014) (“127.85 Effectively combat discrimination against women in law and in practice (Togo)”).

[iii] Human Rights Council, Report of the Working Group on the Universal Periodic Review – Iraq, p. 19, U.N. Doc. A/HRC/28/14 (Dec. 12, 2014) (“127.100 Guarantee respect for international humanitarian law and human rights … (Spain)”).

[iv] Iraq has a reservation to CEDAW’s Article 2(f) and (g), which read, “States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: … (f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women; (g) To repeal all national penal provisions which constitute discrimination against women.” (Convention on the Elimination of All Forms of Discrimination Against Women Preamble, art. 2, Dec. 18, 1979, 1249 U.N.T.S. 13). The CEDAW Committee has held Article 2 to be “central to the objects and purpose of the Convention.” (Report of the Committee on the Elimination of Discrimination against Women (Eighteenth and nineteenth sessions), p. 49, A/53/38/Rev.1 (1998)). Iraq’s reservation to Article 2 is therefore at odds with CEDAW’s object and purpose, rendering it invalid. (See Reservations to the Convention on Genocide, Advisory Opinion: I.C.J. Reports 1951, p. 13 (“The object and purpose of the Convention thus limit both the freedom of making reservations and that of objecting to them.”)).

[v] Universal Declaration of Human Rights art. 7, Dec. 10, 1948, U.N. Doc. A/RES/217(III); U.N. Charter Preamble, art. 1, para. 2; Convention on the Elimination of All Forms of Discrimination Against Women Preamble, art. 2, Dec. 18, 1979, 1249 U.N.T.S. 13; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 1, Dec. 10, 1984, 1465 U.N.T.S. 85; International Covenant on Civil and Political Rights art. 26, Dec. 19, 1966, 999 U.N.T.S. 171.

[vi] Universal Declaration of Human Rights art. 7, Dec. 10, 1948, U.N. Doc. A/RES/217(III).

[vii] UN Guidance Note of the Secretary-General: Reparations for Conflict-Related Sexual Violence, p. 4 (June 2014).

[viii] Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, ¶¶ 18, 23, Mar. 21, 2006, U.N. Doc. A/RES/60/147.

[ix] Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, ¶ 23(h), Mar. 21, 2006, U.N. Doc. A/RES/60/147.

[x] CEDAW Comm., General Recommendation No. 33, ¶ 19(e).

[xi] UN Guidance Note of the Secretary-General: Reparations for Conflict-Related Sexual Violence, p. 20 (June 2014).

[xii] Penal Code art. 393(1). “Consent” is not otherwise defined or qualified in the Iraq Penal Code or Criminal Procedure Code. The Penal Code’s description of sexual assault as “without his or her consent and with the use of force, menaces, deception or other means” may suggest that consent and force/coercion are distinct concepts in Iraq law. Penal Code art. 396(1); see also Penal Code art. 393 (describing perpetrators’ authority over the victim, the victim’s age, and multiple perpetrators as aggravating circumstances rather than circumstances affecting potential consent.)

[xiii] See, e.g., Prosecutor v. Bemba, Case No. ICC-01/05-01/08-3343, Trial Judgment, ¶¶ 105-06 (Mar. 21, 2016) (“the victim’s lack of consent is not a legal element of the crime of rape under the Statute. . . . on the basis that such a requirement would, in most cases, undermine efforts to bring perpetrators to justice.”); Prosecutor v. Kunarac et al., Appeals Judgment, Case No. IT-96-23 & IT-96-23/1-A, ¶ 128 (June 12, 2002) (rejecting the assertion that continuous resistance was necessary to provide adequate notice to perpetrators); Int’l Criminal Court, Rules of Procedure and Evidence r. 70(c); U.N. Women, Handbook for Legislation on Violence Against Women 25 (2012) (noting that “definitions of sexual assault based on a lack of consent may, in practice, result in the secondary victimization of the complainant/survivor by forcing the prosecution to prove beyond reasonable doubt that the complainant/survivor did not consent” and emphasizing that definitions of sexual violence based on coercion should include expansive circumstances). Another example left out by the focus on consent is rape committed under coercion or threats directed not against the victim, but a third person. Int’l Criminal Court, Elements of Crimes art. 7(1)(g)-1, element 2.

[xiv] See U.N. Secretary-General, Rep. on Conflict-Related Sexual Violence, ¶¶ 28-29, U.N. Doc. S/2015/203.

[xv] Criminal Procedure Code art. 3(A)(iii) (in cases of rape where the victim is a spouse or descendent of the perpetrator); Penal Code art. 385 (complaint must be brought by victim or ancestor). The Criminal Procedure Code also specifies that the right to submit a complaint does not transfer to heirs. Criminal Procedure Code art. 9(D). See also, U.N. Assistance Mission for Iraq & Office of the High Comm’r for Human Rights, Promotion and Protection of Rights of Victims of Sexual Violence by ISIL/ or in Areas Controlled by ISIL in Iraq ¶ 23 (Aug. 22, 2017), http://www.uniraq.com/index.php?option=com_k2&view=item&task=download&id=2237_d4579691236af63a6d57621c51d8aa35&Itemid=650&lang=en [UNAMI, Promotion and Protection of Rights of Victims of Sexual Violence by ISIL].

[xvi] Criminal Procedure Code art. 6.

[xvii] Criminal Procedure Code art. 9(F). Article 8 also specifies that complaints will be dismissed if not “followed up on” by complainants within three months in cases where submitting a complaint is required. Criminal Procedure Code art. 8.

[xviii] Penal Code art. 385.                                                                                                      

[xix] U.N. Women, Handbook for Legislation on Violence Against Women 34-35 (2012).

[xx] CEDAW Comm., General Recommendation No. 35, ¶ 26(c).

[xxi] UNAMI, Promotion and Protection of Rights of Victims of Sexual Violence by ISIL, ¶ 23.

[xxii] Penal Code arts. 128, 409, 417(4) (committing specified crimes out of shame or with “honourable motives” is a mitigating excuse); U.N. Assistance Mission for Iraq & Office of the High Comm’r for Human Rights, Report on Human Rights in Iraq: July to December 2016, at 28-29; Huda Ahmed, Freedom House, Iraq, in Women’s Rights in the Middle East and North Africa 1, 7-8 (2010); U.S. Dep’t of State, Iraq 2016 Human Rights Report 49-52 (2017) (victims of sexual or domestic violence “did not usually report it to authorities or pursue legal remedies” because of social stigma and risk of familial retribution or because they feared family protection units “would immediately inform their families of their testimonies”); Miriam Puttick, Ceasefire Ctr. for Civilian Rights & Minority Rights Group Int’l, The Lost Women of Iraq: Family-Based Violence During Conflict 18, 28-29 (2015), http://minorityrights.org/wp-content/uploads/2015/08/Lost-Women-English.pdf; U.K. Home Office, Country Policy and Information Note, Iraq: Kurdish ‘Honour’ Crimes (2017), https://www.justice.gov/eoir/page/file/995246/download (honor crimes continue in Kurdistan despite its repeal of honor as a mitigating circumstance).

[xxiii] Seivan M. Salim, The Yazidi Women Who Escaped ISIS, The Daily Beast (2015), http://www.thedailybeast.com/longforms/2015/isis/portraits-of-the-yazidi-women-who-escaped-isis.html; Amnesty Int’l, Escape from Hell: Torture and Sexual Slavery in Islamic State Captivity in Iraq 5 (2014), https://www.amnesty.org.uk/files/escape_from_hell_-_torture_and_sexual_slavery_in_islamic_state_captivity_in_iraq_-_english_2.pdf;

[xxiv] Personal Status Law No. 188 of 1959 art. 9(1) (Iraq).

[xxv] Personal Status Law No. 188 of 1959 art. 9(3).

[xxvi] Personal Status Law No. 188 of 1959 art. 9(1). The Kurdistan Personal Status Law was amended to consider forced marriages void and suspended even if consummated, and forced marriage is included as a crime in Kurdistan’s 2011 anti-domestic violence law. Act No. 15 of 2008, Act to Amend the Amended Law No. 188 of 1959, Personal Status Law, in Iraq Kurdistan Region art. 6(1); Act No. 8 of 2011, Act Combating Domestic Violence in Kurdistan Region-Iraq art. 2(First)(1).

[xxvii] Rome Statute art. 7(1)(k); ICC Elements of Crimes art. 7(1)(k), elements 1-2. Forced marriage has been recognized as an “other inhumane act” in the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, and the International Criminal Court. See Co-Prosecutors v. Ieng Sary et al., Case No. 002/19-09-2007-ECCC-OCIJ, Closing Order, ¶¶ 1442-47 (Sept. 15, 2010); Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Confirmation of Charges, ¶¶ 87-95 (Mar. 23, 2016); Prosecutor v. Brima, Case No. SCSL-2004-16-A, Appeals Judgment, ¶ 186, 195-96 (Feb. 22, 2008).

[xxviii] Universal Declaration of Human Rights art. 16(2), Dec. 10, 1948, U.N. Doc. A/RES/217(III); International Covenant on Civil and Political Rights art. 23(3), Dec. 19, 1966, 999 U.N.T.S. 171; Convention on the Elimination of All Forms of Discrimination Against Women art. 16(1)(a)-(b) (noting Iraq’s reservation to Article 2(f)(g) and Article 16 of the Convention, Status on the Convention on the Elimination of All Forms of Discrimination Against Women, U.N. Treaty Collection, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&lang=en#EndDec); Convention on the Elimination of All Forms of Discrimination Against Women Comm., General Recommendation No. 21 on Equality in Marriage and Family Relations, ¶¶ 15-16, U.N. Doc. A/49/38 (1994).

[xxix] Human Rights Council, Rep. of the Ind. Int’l Comm’n of Inquiry on the Syrian Arab Republic, ¶¶ 59, 73, U.N. Doc. A/HRC/30/48 (Aug. 13, 2015); Salim, The Yazidi Women Who Escaped ISIS; Amnesty Int’l, Escape from Hell, at 5-7, 11-12; Iraq: Sunni Women Tell of ISIS Detention, Torture, Describe Forced Marriage, Rape, Human Rights Watch; U.N. Assistance Mission for Iraq & Office of the High Comm’r for Human Rights, Report on the Protection of Civilians in the Armed Conflict in Iraq: 11 December 2014–30 April 2015, at 22 http://www.ohchr.org/Documents/Countries/IQ/UNAMI_OHCHR_4th_POCReport-11Dec2014-30April2015.pdf (reporting the abduction and killing of Sunni and Turkmen Shi’a women who refused to marry ISIS fighters).

[xxx] See, e.g., Iraq Kurdish Authorities Must End Disgraceful Detention of Yezidi Woman Who Survived IS Captivity, Amnesty Int’l (Sept. 9, 2016), https://www.amnesty.org/en/latest/news/2016/09/iraq-kurdish-authorities-must-end-disgraceful-detention-of-yezidi-woman-who-survived-is-captivity/; Letta Taylor, The Women Who Escaped ISIS: From Abused to Accused, Human Rights Watch (Mar. 11, 2017), https://www.hrw.org/news/2017/03/11/women-who-escaped-isis; UNAMI, Promotion and Protection of Rights of Victims of Sexual Violence by ISIL, ¶ 41 (noting the risk that women married to ISIL members with or without consent may be subject to discrimination and collective punishment); Human Rights Watch, “No One is Safe:” Abuse of Women in Iraq’s Criminal Justice System 19-37 (2014) (describing the arrest and detention of women under the 2005 Anti-Terrorism Law based on familial association); Human Rights Watch, Flawed Justice: Accountability for ISIS Crimes in Iraq 27-33 (2017) (on current prosecutions).

[xxxi] U.S. Dep’t of State, Iraq 2016 Human Rights Report, at 56. “According to UNICEF, approximately 975,000 girls in Iraq were married before the age of 15, twice as many as in 1990.” Id. See also Huda Ahmed, Freedom House, Iraq, at 12.

[xxxii] Constitution art. 37(first)(C).

[xxxiii] Criminal Procedure Code arts. 127, 218; Penal Code art. 333. See also Constitution art. 9(D) (intelligence service shall operate according to law and “recognized principles of human rights”).

[xxxiv] Penal Code art. 332.

[xxxv] See Human Rights Council, Rep. of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶¶ 51-67, U.N. Doc. A/HRC/31/57 (Jan. 5, 2016) (by Juan E. Méndez).  

[xxxvi] Committee against Torture, Concluding Observations on initial report of Iraq, ¶ 10, U.N. Doc. CAT/C/IRQ/CO/1 (Sept. 7, 2015).

[xxxvii] There is no criminal law outlawing or otherwise describing genocide in Iraq’s Penal Code. The “Iraqi High Tribunal”—created to punish crimes committed by Saddam Hussein’s government—contains an article criminalizing genocide, crimes against humanity and war crimes, but the law that created this tribunal does not apply generally to Iraq’s Penal Code, or to Daesh’s crimes. Law No. 10 of 2005, Law of the Iraqi Higher Criminal Court art. 1(Second) (Iraq).

[xxxviii] Notification of Accession by Iraq to the Convention of 9 December 1948 on the Prevention and Punishment of the Crime of Genocide, Doc. C.N.16.1959.Treaties-1 (Feb. 24, 1959), https://treaties.un.org/doc/Publication/CN/1959/CN.16.1959-Eng.pdf.

[xxxix] Genocide Convention arts. 1-8; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugoslavia), Preliminary Objections Judgment, 1996 I.C.J. 595, ¶ 31 (July 11) (“the rights and obligations enshrined by the [Genocide] Convention are rights and obligations erga omnes”).

[xl] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Judgment, 2007 I.C.J. 43, ¶¶ 430-31 (Feb. 26); Global Justice Ctr., Letter in Support of Filing of OTP-CR-397/15 to the Office of the Prosecutor of the International Criminal Court (Dec. 17, 2015).

[xli] Amnesty Int’l, Escape from Hell; Human Rights Council, Rep. of the Ind. Int’l Comm’n of Inquiry on the Syrian Arab Republic, ¶¶ 63, 188, U.N. Doc. A/HRC/28/69 (Feb. 5, 2015); Human Rights Council, Rep. of the Ind. Int’l Comm’n of Inquiry on the Syrian Arab Republic, ¶¶ 113-17, U.N. Doc. A/HRC/30/48; Human Rights Council, Rep. of the Office of the United Nations Commissioner for Human Rights on the Human Rights Situation in Iraq in Light of the Abuses Committed by the So-called Islamic State in Iraq and the Levant and Associated Groups, ¶¶ 76, 78; Human Rights Council, Rep. of the Ind. Int’l Comm’n of Inquiry on the Syrian Arab Republic: Rule of Terror: Living under ISIS in Syria, ¶ 53-55, U.N. Doc. A/HRC/27/CRP.3 (Nov. 19, 2014); Iraq: ISIS Escapees Describe Systematic Rape, Human Rights Watch, (Apr. 14, 2015), https://www.hrw.org/news/2015/04/14/iraq-isis-escapees-describe-systematic-rape.

[xlii] Several provisions of the Penal Code contain “aggravating factors” that incorporate scale and patterns of abuses, such as committing crimes that involve multiple perpetrators, brutal methods, or are committed multiple times, but none capture the international nature of crimes against humanity. See, e.g., Penal Code arts. 135, 393(2)(d), 406(1), 421-24. The Penal Code provides that material circumstances that would increase the penalty of the offence affect the liability of all parties, whether or not they are aware of those circumstances. To incur criminal liability, the Rome Statute requires that perpetrators must know that their “conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population” and in the case of sexual violence be “aware of the factual circumstances that established the gravity of the conduct.” Compare Penal Code art. 51 (“If there exists material circumstances in the offence that would by their nature increase or decrease the penalty, then they will affect all parties to the offence, principal or accessory, whether they are aware of those circumstances or not.”), with ICC Elements of Crimes, art. 7(1)(g)-6, elements 3, 5, and art. 7(1)(g)-1, element 4.

[xliii] Int’l Law Comm’n, First Rep. of the Special Rapporteur on Crimes Against Humanity, ¶ 27, U.N. Doc. A/CN.4/680 (Feb. 17, 2015) (by Sean D. Murphy).

[xliv] Int’l Law Comm’n, First Rep. of the Special Rapporteur on Crimes Against Humanity, ¶ 27.

[xlv] Treaties, States Parties and Commentaries: Iraq, Int’l Comm. Red Cross, https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/vwTreatiesByCountrySelected.xsp?xp_countrySelected=IQ.

[xlvi] Geneva Convention (I) for the Amelioration of the Conditions of the Wounded and Sick in Armed Forces in the Field art. 49-51, Aug. 12, 1949, 75 U.N.T.S. 31; see also Geneva Convention (II) for the Amelioration of the Conditions of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea art. 50-52, Aug. 12, 1949, 75 U.N.T.S. 85; Geneva Convention (III) Relative to the Treatment of Prisoners of War arts. 129-131, Aug. 12, 1949, 75 U.N.T.S. 135; Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War arts. 146-148, Aug. 12, 1949, 75 U.N.T.S. 287.

GJC President Cited in Elle UK Article on Justice for Yazidi Women

Not a single ISIS fighter has been prosecuted for gender-based crimes despite mountains of evidence of rape and sexual slavery. As GJC President Akila Radhakrishnan explained to Emily Feldman of Elle UK, membership is a terrorist organization is much easier to prove than participation in gender-based crimes.

One of the benefits of ISIS’s diverse membership—fighters joined the group from countries around the world—is that many governments have an interest in going after ISIS suspects.

By 2015, countries like Iraq, Germany and even the U.K. already had ISIS suspects in their prisons. Frustratingly, every government that has arrested ISIS members has only prosecuted them for the crime of being a 'member of a terrorist organisation'—not even murder or rape.

And none of the Yazidi survivors has been informed about their detention and aren’t sure if the men who enslaved them are living or dead, imprisoned or walking free.

Akila Radhakrishnan, the president of the Global Justice Center who has advised Ibrahim, explains that it is simply much easier for prosecutors to prove membership in a terrorist organisation than it is to prove mass atrocities or gender-based crimes, like rape.

And although penalties for terrorism crimes are often severe—Iraq sentences terrorism convicts to death after hasty and widely criticised trials—the cases fail to acknowledge all the other crimes that took place.

Read the Full Article

No Justice for Yazidi Women Yet: Why Not?

GJC President Akila Radhakrishnan published an op-ed in PassBlue about the lack of accountability for ISIS's genocide against the Yazidis in Iraq. 

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.

Read the Full Article 

Yet again, the world is failing genocide victims

GJC President Akila Radhakrishnan and Free Yezidi Foundation founder and Executive director Pari Ibraham published a joint op-ed in Women Under Siege calling for justice on the fourth anniversary of ISIS's genocide of the Yazidis. 

The value of accountability for the full range of crimes committed cannot be underestimated. Justice empowers survivors, shines a light on truth, and offers healing and closure, allowing an affected community to move forward. Justice at its best is not merely retribution or punishment, it is a transformation. It can allow the Yezidi community to see security, reconciliation, and peace in their homeland.

Progress on paper should not be dismissed, but it is insufficient. Four years after the genocide began, Yezidis are still waiting to see a single perpetrator held accountable for the crimes committed against their community, including genocide. 

Read the Full Article 

Justice for Queer Iraqis is Not Optional

By Merrite Johnson

Daesh’s crimes against queer Iraqis (or people perceived of being queer, or not sufficiently adhering to traditional gender norms) have been well-documented, including harassment campaigns, arbitrary executions, and forced disappearances. These crimes were also a tactic for building popular support for Daesh’s rule.

Since the UN voted last year to create an international team to investigate crimes Daesh committed in Iraq, human rights advocates including the Global Justice Center have called repeatedly for the team to follow international laws and standards as they investigate all crimes, not just those of terrorism. Earlier this year, GJC published its analysis of Iraq’s national laws, which are woefully insufficient for achieving justice for victims of genocide, crimes against humanity, and gender-based violence. If Daesh crimes are going to be prosecuted in domestic Iraqi courts, there is a very real danger that these venues will shut out LGBTQ Iraqis from seeking justice.

But Daesh isn’t the only group responsible for violence against LGBTQ Iraqis. A report published earlier this year by IraQueer found that 96% of LGBTQ respondents in Iraq have faced some form of violence over the past three years, and there have been documented killing campaigns against queer people in Iraq every year since 2003—well before the arrival of Daesh. The Iraqi government has completely failed to protect its queer citizens from harassment and violence; even worse, state forces have been active participants in targeted anti-LGBTQ violence alongside conservative militias. 

If the international community really is committed to justice, it must ensure not only that queer voices are included in Daesh prosecutions, but also that the Iraqi government is held to its obligations under human rights treaties like the Convention Against Torture and the International Covenant on Civil and Political Rights. Now is the time to take action to prove that justice for queer people is not optional.

May News Update: Justice for Women in Iraq

Since 2005, the Global Justice Center has worked with our partners in Iraq to hold perpetrators of gender-based crimes accountable in order to ensure a rule of law based on gender equality.

Today, your support is critical as we lead the effort to ensure justice for ISIS’ genocide against the Yazidi in Iraq.

As our recent legal brief illustrates, and as our Staff Attorney Grant Shubin made clear in a New York Times Letter to the Editor“If prosecuted under Iraq’s penal code, basic crimes of ISIS’ gender-based violence will go unpunished.”

Photo: DVIDSHUB / CC BY 2.0

Read the Full Newsletter

Prosecution of captured ISIS officials must adhere to international standards

FOR IMMEDIATE RELEASE – May 10, 2018

[New York] – In light of the capture of five senior ISIS officials on Wednesday, the Global Justice Center underscores the need for scrupulous adherence to international standards as they are brought to justice. The New York Times reports that, “It was unclear where [the officials] were being held or whether they had been given access to a lawyer,” raising serious due process concerns. This approach is familiar in Iraq, where terrorism prosecutions for ISIS suspects occur in mere minutes, focus solely on crimes of terrorism, and have thus far denied justice to the victims of some of ISIS’ worst abuses—women and girls.

Iraq’s Criminal Laws Preclude Justice For Women And Girls

In light of the gender dynamics at the root of Daesh’s violence, gender must also be at the center of accountability. With justice for Daesh beginning, this Briefing details how Iraq’s current legal framework precludes meaningful justice for women and girls. It highlights the gender gaps in Iraq’s criminal laws and identifies opportunities for broader reform to better protect Iraqi women and girls from sexual and gender-based violence.

Introduction

For years the world watched in collective horror as Daesh committed brutal atrocities. Central to this violence was sexual and gender-based violence, with explicit targeting of women and girls. Daesh used rape, sexual slavery, forced marriage and torture—distinct crimes on their own as well as constituent elements of genocide, crimes against humanity and war crimes—as tools for recruitment, conversion, forced indoctrination, and the fundamental destruction of community cohesion.1 For many, the only thing that stood in opposition to these crimes was the prospect, however far away, of justice.

Justice, however, is complex. It requires accountability, redress and a focus on preventing the recurrence of violations. Justice efforts must be independent, credible, inclusive, and accepted by impacted communities, with special respect and recognition for the dignity of victims. Importantly, and as this Briefing illustrates, it must reflect the full scope and scale of the crimes that occurred.
As the international community and the Iraqi government begin the process of holding members of Daesh accountable for their crimes, it is critical to examine the legal systems that will be responsible for these prosecutions. Prosecutions to date, which have all been conducted under Iraq’s 2005 counter-terrorism law, have failed human rights standards and do not suffice the interest of justice. 

This Briefing highlights one such example—specifically how Iraq’s current laws fall far short of the requirements for justice, as they are unable to punish the most egregious of Daesh’s gender crimes. Iraq’s Penal Code is a patriarchal patchwork rooted in preexisting peacetime gender inequalities and violence.2 The way and manner in which the Code defines sexual and gender-based violence crimes is steeped in language and perspectives that are inherently and overtly discriminatory against women and fall short of international standards. Any justice mechanism organized under these laws will fail to provide full accountability and redress to Daesh’s female victims. 

In order to highlight these challenges, this Briefing: (i) identifies particular categories of Daesh’s gender crimes and considers how these crimes are currently codified in Iraqi law; (ii) details the gaps where Iraq’s laws do not entirely capture the ways in which Daesh committed sexual and gender-based violence; and (iii) describes international standards for defining and understanding the many facets of these crimes.

A complete reckoning with the planned and inherently gendered elements of Daesh’s violence is essential for Iraq to begin the transition out of armed conflict. These first steps of putting this history behind it must provide justice for victims, combat these victims’ marginalization, and prevent future violations against women, girls and other communities targeted on behalf of their gender. 

Download PDF 

 

USAID FOIA re: Iraq

September 23, 2014 – ongoing
CaseF-2014-20299

Similar to the FOIA request on humanitarian assistance in Syria, GJC requested details on humanitarian assistance awards to Iraq and neighboring countries in FY 2014.

Timeline:

  • September 23, 2014Initial request submitted
  • January 18, 2018 – Letter received stating no responsive records were found
  • February 16, 2018 – GJC submits an appeal to the no records response, asking State to perform a new search

Human Rights Org Send Open Letter to Iraqi Prime Minister on establishing an Investigative Team for Crimes Committed by Daesh, including Yazidi Genocide

FOR IMMEDIATE RELEASE - October, 30 2017

[NEW YORK and BAGHDAD] –  Today, the Global Justice Center along with the Eyzidi Organization for Documentation, the Iraqi Al-Amal Association, the Iraqi Women Network, Madre and Yazda sent a joint open letterto the Iraqi Prime Minister Dr. Haider al-Abadi regarding the Terms of Reference currently being drafted for UN Security Council Resolution 2379 (2017).

Recommendations for the Terms of Reference and Implementation of UN Security Council Resolution 2379 on Da’esh Accountability

Subject: Recommendations for the Terms of Reference and Implementation of UN Security Council Resolution 2379 on Da’esh Accountability

Your Excellency,

We are writing to you to call on your leadership in ensuring successful implementation of UN Security Council Resolution 2379, initiating an Investigative Team for crimes committed by the so-called Islamic State in Iraq and the Levant (ISIL, hereinafter referred to as “Da’esh”).

Below, please find a list of recommendations which we hope will be reflected in the Terms of Reference for the Resolution, with the purpose of establishing a commitment to the highest standards of international law and guaranteeing inclusiveness and accountability, including through gender justice and a victim-centered approach.

The adoption of UN Security Council Resolution 2379 on September 21, 2017 marks an important milestone in the enormous task of holding members of Da’esh accountable for their commission of war crimes, crimes against humanity, and genocide. In this respect, we particularly emphasize the need to investigate and prosecute all forms of sexual and gender-based violence which can constitute acts of genocide as well.

We hope the Investigative Team will lay the groundwork for an inclusive and comprehensive justice process for all those affected by the conflict and atrocities committed.

We thank you for your consideration.

Sincerely,

Global Justice Center Eyzidi Organization for Documentation
Iraqi Al-Amal Association   Iraqi Women Network
Madre Yazda

Read Full Letter in English

Read Full Letter in Arabic

UN Security Council Adopts Resolution - One Step Towards Justice for the Yazidi Genocide

FOR IMMEDIATE RELEASE - September 21, 2017

[NEW YORK, NY] – Today, the UN Security Council unanimously adopted UNSC Resolution 2379 (2017) on Daesh accountability, paving the way for an investigative team to collect evidence of war crimes, crimes against humanity and genocide in Iraq. Since 2014, Daesh has been perpetrating a genocidal campaign against the Yazidi and potentially other ethnic minorities in Northern Iraq but yet to date no perpetrator has been held accountable for genocide.

Global Justice Center’s Statement on the Operation to Liberate Mosul

FOR IMMEDIATE RELEASE—October 17, 2016

[NEW YORK, NY] - As the operation to liberate Mosul begins, all coalition actors should ensure that they uphold their obligations under international law to protect civilians and minimize the harm caused to them. Iraq is a party to the four Geneva Conventions of 1949, Additional Protocol I to the Geneva Conventions and the Convention on the Prevention and Punishment of Genocide. These treaties define how Iraqi forces, including the Peshmerga, must carry out military operations.

Remembering ISIS' Crimes of Genocide Against Yazidis on the Anniversary of the Sinjar Massacre

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.

GJC Published in Newsweek on Anniversary of Sinjar Massacre

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. 

ISIS is Committing Genocide: Now What?

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 committing 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.

Denying abortions to war rape victims endangers innocent women’s lives, helps to perpetuate genocide and its effects, and violates the Geneva Conventions.

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.

Gender and Genocide in the ICRtoP Blog

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. "