Countries must face the International Court of Justice over Yazidi genocide
The images of the Yazidis trapped on Mount Sinjar in Aug 2014, surrounded by fighters of the so-called Islamic State of Iraq and Syria (ISIS), facing death by thirst in the searing desert heat or through capture, remains indelibly imprinted in all our minds.
So do the harrowing accounts of Yazidi women being subject to repeated sexual violence, girls as young as eight being forced into sexual servitude and sold as chattels, and young Yazidi boys captured and indoctrinated to kill their kith and kin.
The Yazidis are one of humanities’ oldest communities and their religion is the oldest surviving monotheistic tradition. As these horrific events unfolded, in lands remote and distant from Britain, many of us took it for granted that, firstly, such a community – a pre-cursor to Judaism, Christianity and Islam – could still exist. Secondly, that this apparent “genocide” had a long and slow genesis rooted in state failures from the corridors of power in Westminster to the deserts of Iraq.
And those were the allegations from which the Yazidi justice committee (YJC), an ad hoc group of five leading human rights NGOs, began their investigations two years ago into 13 states allegedly responsible for what happened to the Yazidis at the hands of ISIS. What did they find and why ought the British government be concerned?
A precedent must be set to signal the real-world consequences of committing genocide
The YJC found that genocide is exactly what happened to the Yazidis: killings, serious bodily mental harm, conditions of life calculated destroy, measures intended to restrict births, and transfer of children from the Yazidi group to ISIS. All with the intent by the ISIS perpetrators to destroy the Yazidis. They confirmed not only that genocide occurred, as contemporaneously assessed by the United Nations from 2014 onwards, but that it remains ongoing today with continuing inaction from Iraq or Syria to protect the fraction of those who returned to their homeland (50-100k out of 600k in Iraq and less than a 1000 out of 20,000 approximately in Syria) and repeated attacks on Yazidis by Turkish armed forces or affiliated militia.
As critical is the YJC’s findings that Iraq, Syria and Turkey failed to prevent the genocide, failed to prosecute individual perpetrators of genocide (not a single prosecution for genocide has been brought) and failed to give proper effect in their domestic law to the provisions of the Genocide Convention. In respect of one state, Turkey – a Nato member – they found that state officials were complicit with ISIS perpetrators through, inter alia; allowing the free flow of fighters across the border, weapons transfers, training support, trade in Yazidi women and girls and materiel support to ISIS.
States are required, under the Genocide Convention, to deploy “all means reasonably available” to prevent genocide the instant they know of the “serious risk” of genocide. The YJC Yazidis were at serious risk from at least April 2013 – more than a year before the harrowing events on Sinjar Mountain. Yet these states did precisely nothing.
The consequence of a failure to honour duties to protect, prevent and punish, means that a third state, such as Britain or another ratifying State to the Convention, could bring failing states before the International Court of Justice (ICJ) and hold them accountable.
The UK government has long held, erroneously, that it cannot make a determination of genocide until a competent international court has ruled on the matter. For this reason, it has never recognised the Yazidi genocide. It is now open to the UK government, with others, to seize the initiative and take one or more of these states before the ICJ. There are, of course, realpolitik considerations of taking Turkey (a not so reliable Nato ally) or Iraq (an avowed partner) to the ICJ – but Syria, where the genesis of ISIS began and a State which helped create the conditions for the ongoing Yazidi genocide (with cover from Russia from 2015), is an obvious starting point for action.
The UK has a historical connection to this region and a real interest in the international rules-based order in world where might is increasingly solely right. An ICJ case would finally recognise genocide of the Yazidis recognised and hold responsible states accountable – only a single successful prosecution for genocide of a low-level individual has occurred in Germany Frankfurt last year. Thousands of ISIS fighters languish in prisons in Iraq, Syria and Turkey. An ICJ case would also, critically, assist survivors of the genocide by requiring a state to ensure remedial actions, reparations, commitments for non-repetition, prosecution of alleged perpetrators, actions for damages, and provisional measures asking for cessation of all continuing harm. A future precedent can and must be set to signal the real-world consequences of committing genocide.
Governments around the world should not only call what is happening to the Yazidis by its proper name: genocide. That is long overdue. But governments also ought to start to meaningfully engage and give effect to their international legal obligations - using all international diplomatic, economic, and political means and all international fora to consider state responsibility seriously - for that is possibly the sole and certainly the most salient route to ending the scourge of genocide. For the Yazidis it would mean the world and for the world it is a litmus test of our humanity.
Dr Leyla Ferman is the Director of Women for Justice and co-founder of Yazidi Justice Committee. Aarif Abraham is a barrister specialising in public international law and international criminal law.
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