Transcript, Janet Benshoof, Keynote Address delivered at The Third Annual Law Summit at the NYU School of Law, titled, “Women in Conflict: Gender, Violence, and Peacekeeping," on February 20th, 2015.
Gender and Genocide
On July 17, Global Justice Center celebrated International Justice Day and reminded of the ongoing Yazidi Genocide, despite promises of #NeverAgain.
Last year, when commemorating the July 11, 1995 commencement of hostilities in Srebrenica, Bosnia & Herzegovina that ended in the deaths of 8,000 men, the White House wrote that, “only by holding the perpetrators of the genocide to account can we offer some measure of justice to help heal their loved ones.” Political condemnation is, in other words, not enough; criminal prosecution should follow such remarks. Today, the United States and other international actors who have acknowledged the Islamic State of Iraq and Syria’s (“ISIS”) genocidal acts must honor the legacy of the International Criminal Tribunal in Yugoslavia (“ICTY”) and follow international humanitarian law by prosecuting ISIS fighters for genocide.
The 11-day massacre in Srebrenica is often noted – and rightfully so – for the horrific killings of thousands of Muslim Bosniaks, most of whom were unarmed civilians, by the Bosnian Serb Army of Republika Srpska (“Bosnian Serb Army”). The murders, carried out under the pretense of impunity, specifically targeted a religious subpopulation – a violation, as noted by the ICTY, of article II of the Geneva Conventions.
Srebrenica’s men were killed whilst Srebrenica’s women were sexually assaulted and raped. By raping and sexually mutilating the wives and daughters of the men they had just murdered, the Bosnian Serb Army aimed to comprehensively “assert [its] superiority and victory over the Muslims.” As the landmark trial of Akayesu - a man involved in the 1994 Rwandan genocide - established, such actions are not separate to, but rather components of, genocide.
ISIS’s current actions in Iraq and Syria are remarkably similar to those in Srebrenica 21 years ago: ISIS fighters specifically target religious and ethnic minorites like the Yazidis – as acknowledged by US Secretary of State John Kerry - and they systematically rape and sexually enslave Yazidi women. As in Yugoslavia in the 1990’s, where rape served as a military tactic intended to “transmit a new ethnic identity to the child,” today’s rape of minority populations by ISIS serves as a central tenet of the group’s military quest for regional domination.
Such actions are not only morally repugnant but also criminal and prosecutable under international humanitarian law. The convictions of Bosnian Serbs for genocidal actions in Srebrenica should not exist in a temporal vacuum; they entered humanitarian law as precedence for the future prosecution of genocide, thereby providing justice to victims at the timeand offering legal tools for future genocide prosecutions elsewhere.
Today, the international community should honor the memory of those killed and raped in Srebrenica and the lessons learned from that conflict by prosecuting ISIS fighters for genocide. By doing so, the international community will acknowledge its responsibility to protect victims of genocide, recognize the legal precedents established in Yugoslavia and Rwanda, deter future fighters from joining the organization’s ranks, and provide justice to ISIS’s victims.
“In the light of its factual findings with regard to the allegations of sexual violence […] the [International Criminal Tribunal for Rwanda] considers the criminal responsibility of the Accused on Count 13, crimes against humanity (rape), punishable.”
Despite the conviction of rape as a component of genocide nearly twenty years ago, the international community has yet to prosecute Islamic State of Iraq and Syria (“ISIS”) fighters for similar actions.
In 1998, a decision by the International Criminal Tribunal for Rwanda entered legal history as the world’s first conviction of genocide by trial. 18 years later, The Prosecutor v Jean-Paul Akayesu (“Akayesu”) continues to garner significant international attention; The Uncondemned,a feature length documentary about the case, was released in 2015 and an international lawyer recently compared Akayesu’s importance in international criminal law to the US Supreme Court’s landmark 1954 Brown v Board of Education case which established the unconstitutionality of “separate but equal,” accommodations in US public education.
The genocide conviction is not, however, the case’s sole historical feature; Akayesu also marks the first conviction of rape as a component of genocide (at the time, there was not even a commonly accepted definition of “rape,” in international law). The judges unequivocally compared rape to torture, noting that “like torture, rape is used for such purposes as intimidation, degradation, humiliation, discrimination, punishment, control or destruction of a person.” In certain cases, they note, “rape in fact constitutes torture.”
Even with such clear precedent for rape in genocide prosecutions, war rape is still a common feature of modern warfare: research conducted by the Global Justice Center - and submitted to the International Criminal Court - has found that ISIS “systematically raped, enslaved, killed and tortured,” girls and women – actions potentially similar to those Akayesu was convicted for 18 years ago. Furthermore, the United Nation’s (“UN”) Commission of Inquiry (COI) on Syria recently concluded that ISIS is committing genocide, crimes against humanity, and war crimes against the Yazidi people.
Yet despite the UN’s documentation of ISIS-committed sexual slavery, rape, and sexual violence, “little to no action has been taken to investigate, document and ensure accountability.”
By prosecuting ISIS fighters for war rape – an act likened to torture by a criminal tribunal – the international community would provide a semblance of justice to war rape victims, follow and establish international legal precedent, and send a powerful message to potential ISIS fighters that they will be held accountable for their actions.
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.
FOR IMMEDIATE RELEASE—June 17, 2016
[NEW YORK, NY] – Yesterday, the UN Commission of Inquiry (COI) on Syria concluded that ISIS is committing genocide, crimes against humanity, and war crimes against the Yazidi people. The report, “They Came to Destroy”: ISIS Crimes Against the Yazidis, recognizes that the genocide is ongoing and is being committed not just through mass killings but also through gendered non-killing crimes such as rape and sexual violence.
Seven years ago this month, a quarter century of armed conflict in Sri Lanka reached its violent conclusion. The Government of Sri Lanka’s take-no-prisoners approach to defeating the Liberation Tigers of Tamil Eelam (LTTE), also known as the “Tamil Tigers,” was accompanied by massive violations of international humanitarian law, international human rights law, and international criminal law. From January to May 2009, the military killed at least 40,000 to 70,000 Tamil civilians and also targeted Tamil women with rape and sexual violence. However, there have been no UN recommendations to investigate this onslaught as genocide, despite evidence of genocidal intent. The silence on both genocide and the crimes unique to women flows from the politicization of genocide and perpetuates gender discrimination and crimes. Next month, the topic of reconciliation, accountability and human rights in Sri Lanka is on the UN Human Rights Council’s agenda. The time is now for the international community to call for investigations into genocide and to use the specific protections and obligations under genocide law to redress the ongoing harms against Tamil women, including rapes and denial of their reproductive rights.
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.
Daesh Strategically and Intentionally Targets Yazidi Women and Girls for Heinous Crimes on Ideological Grounds
Daesh continues to commit heinous crimes against women and girls, and, to date, has done so with impunity. Victims and witnesses who have fled Daesh control consistently describe being subjected to attacks that aim to terrorize and silence the population. But even in the context of Daesh’s blanket persecutions against ethnic minorities, Daesh has singled out the Yazidi religious and ethnic minority, and most notability Yazidi women and children, for particularly brutal treatment.
Further, its state-building strategy requires subjugation of women and control over their reproductive capacity to guarantee future generations for the so-called Caliphate. These policies, strategies and practices lead to and provide a perceived justification for Daesh fighters’ carrying out the horrendous crimes against Yazidi women and girls detailed below.
Starting on April 7, 1994, upwards of around 800,000 Rwandans, predominantly Tutsis were massacred over the course of 100 days. Of those killed, an estimated 250,000–300,000 Tutsi women and girls were raped; many were even raped to death. The suffering of the women and girls who survived rape, enslavement, and sexual mutilation continues even today. The response of the international community, to this genocide was muted and politicized. In a deliberate attempt to avoid their international legal obligations, states refused to acknowledge the genocide until it was too late. This inaction failed the Tutsi people on an unimaginable scale.
FOR IMMEDIATE RELEASE - March 17, 2016
[WASHINGTON, DC]– This morning, US Secretary of State John Kerry announced that Daesh is committing genocide against ethnic minorities, including Yazidis, Christians, and Shia Muslims. This is the first genocide the US has recognized since Darfur in 2004.
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.
FOR IMMEDIATE RELEASE - February 5, 2016
[STRASBOURG, FRANCE] – In an historic resolution, the European Parliament yesterday recognized ISIS’ ongoing atrocities against religious minorities as genocide. The resolution is the first time the Parliament called on parties, including EU Member States, to fulfill their duties under the UN Genocide Convention during an ongoing conflict.
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.
Global Justice Center Urges International Criminal Court to Investigate ISIS’s Genocide against Yazidi Women and Girls
FOR IMMEDIATE RELEASE - December 22, 2015
[NEW YORK, NY] – ISIS systematically perpetrates crimes against religious and ethnic minorities in Iraq and Syria, including the Yazidi people. Yazidi men and elderly women are killed, boys are recruited and converted and young women and girls are repeatedly raped, bought and sold as sex slaves, forcibly converted, married, and impregnated. As many as 3,000 girls and women remain in captivity.