Working to get ISIS crimes against Yazidi before the ICC

21 September 2016 by Janet H. Anderson
Just days ago Yazidi Nadia Murad who survived an attack by the so-called Islamic State (IS also known as ISIS) on the Yazidi community of northern Iraq and Amal Clooney, her lawyer, spoke to the UN about the need for justice for the Yazidis, forced out of their ancient homelands around Mount Sinjar.

Murad – who has just been appointed the UN’s goodwill ambassador on human trafficking – described how her family were killed in massacres conducted by ISIS during 2014, how she and other Yazidi women suffered when captured and held by ISIS fighters and how more than 2,000 Yazidi women are still being held captive. Clooney called on the UN to support calls for a genocide prosecution against the perpetrators at the International Criminal Court. Evidence – mainly refugee statements – has been sent to The Hague by Murad’s own organization Yazda, supported by former ICC prosecutor Luis Moreno Ocampo. These efforts are part of the “It’s On U” campaign using interlocking strategies aimed at an ICC prosecution of ISIS for genocide.

Janet Anderson spoke to Joanna Frivet, British-based barrister, who has travelled to the region and refugee camps where Yazidis are now living, to gather evidence for a potential prosecution.

Mass grave west of Shingal town, Kurdistan, Iraq (Photo: Flickr/Seth Franzman)
Image caption:
Teenager’s soccer shirt and jaw bone found in mass grave west of Shingal town, Kurdistan, Iraq (Photo: Flickr/Seth Franzman)
What’s the extent and the nature of the crimes you are investigating?

Joanna Frivet (JF): In the Sinjar area we are talking about a total population of about 80,000 Yazidi but that figure dates back to 2013. A number of them have been victims of serious crimes, including in the month of August 2014 when about seven hundred men were killed in one incident. Overall throughout the area we have an estimate of about 2,000 Yazidi men being killed. According to UN reports we still have an estimated 2,500 Yazidi women and children currently in captivity.

When they arrived in the Yazidi villages, ISIS rounded up the population and put them in local schools or other buildings. They separated the men from the women. They examined the males, checking their armpits to see if they were grown up or not. So the young boys who did not have pubic hair yet were left with the women. And the men who were older than that were grouped together and taken away, summarily executed and buried in mass graves.

What evidence have you found there to support this?

JF: In the Sinjar area there are about a dozen mass graves that have been found already. The women [who were captured by ISIS] were (…) loaded onto trucks [which] took the women away to ISIS bases. We have reports from survivors who managed to escape captivity who relate how they were literally sold on the market. The ISIS men came into the room and would decide which ones they wanted. They were then taken into the houses of these men or were actually offered as gifts to the highest level commanders. These women were detained in the houses of the soldiers who owned them. We have reports that they would be given clothes and be asked to shower and then they were raped multiple times. In some instances, we have reports that women were repeatedly sold between soldiers.

This happened in an overall context where ISIS had an “open policy” and by that I mean a policy that is openly written in the ISIS newsletter DABIQ. The Yazidis are considered as infidels. But the difference in treatment is that Christians would be asked to convert but not necessarily be killed. But Yazidis are considered to be literally the lowest of the low. They cannot be allowed to remain because they are called the worshipers of the devil.

Do you regard what was written in the newsletter as evidence that the policy against the Yazidis is supported by the highest echelons in ISIS – that there is responsibility right at the top of the organization?

JF: It’s one of the many elements that shows that there was a coordinated policy: there is the newsletter; there are tweets from ISIS leaders who talk about the infidels; we have higher level commanders such as the Omar al Shishani who openly stated on YouTube videos and in radio interviews that [Yazidis] are infidels and they should be cleaned up from the land. In addition to that we have reports that during the attacks there were verbal assaults – they were insulted, they were told that they are like dogs and that they should be removed. So the indications of policy at various levels both from written sources and from witness testimonies that we have, tends to show that there is an overall policy even at the highest level.

A lot of this material has already been investigated, so what’s your policy exactly?

JF: Much has been already reported on in United Nations reports, so the main focus of our policy has been to really establish two things. Firstly, to establish the crime-based evidence by recording witnesses and the second aspect has been trying to isolate who are the alleged perpetrators. Your article with Mr Rapp suggests that it there is no court currently that could look at the case about the Yazidi [IJT-193]. This is not our position. We take the view that there are a number of foreign nationals — citizens of European and other states who are states parties to the ICC for instance Australia and Tunisia– who are members of ISIS and who have all participated in the commission of the crime against the Yazidi. In this respect we consider the ICC already has personal jurisdiction over these foreign nationals.

Do you believe you have the evidence potentially to present in court which shows that these specific individuals have either committed the crimes or bear so-called command responsibility for atrocities?

JF: We are working on collecting that information. [For the ICC personal jurisdiction] we need to establish they are all foreign nationals in ISIS committing crimes. Secondly we need to establish their specific identity and by their passports the nationalities of those who are accused. Thirdly, we need to link up a specific individuals to the crimes and fourthly we need to show that they are either mid-level or higher level perpetrators.

But how do you establish the responsibility of what you estimate to be between 2,500 and 5,000 foreign nationals currently in ISIS?

JF: We have to establish first who these people are. [For that we primarily rely] on public information through public sources. A number of ISIS members have been very vocal for instance. I refer again to Omar al-Shishani, who is a Georgian national and therefore within the jurisdiction of the ICC. They call him the de facto minister of war. He openly stated the ISIS policy to act against the Yazidis.

For mid-level perpetrators it gets a little bit more difficult. This is not a war that has been mediatized like what happened in Iraq under Saddam Hussein and the security situation has made it very difficult for journalists to be there. So the sources of information we are relying on are those who survived. Victims have reported that they lived with Belgian or Australian nationals for example. They lived with these people: they heard them talk, they ate with them. They’ve had more contact with them and enough direct knowledge to be able to establish their identities.

We need to be able to place these foreign nationals on the ISIS command structure to establish whether they were mid-level or higher level and that is work in progress. I can say that aside from witness statements it has been very very difficult to establish this information. It is out there. The states themselves have the information about their own nationals who are in ISIS, but most of the time it is considered to be actionable information [information that can be used to make specific decisions]. So, as long as they are in ISIS they are military targets, so most national security agencies do not want to share this kind of information because they are afraid that it reduces their capacity to target them as military targets on the field. Really the aim is to have them dead, not prosecuted. That makes it difficult for us to gather information but we are trying to find as many witnesses as we can at this stage.

With a UN Security Council referral of ISIS crimes against the Yazidi an unlikely prospect what other possibilities are you exploring to get the ICC to look into this?

JF: We would have loved a UNSC resolution referral but we know the climate is too difficult. We are still pursuing it but we can’t hold our breath really. As our position is that the ICC has jurisdiction already, there are a number of strategies we have been pursuing concurrently. We have submitted a document to the ICC requesting they open a preliminary examination. So we have been trying to approach the prosecutor to request a proprio motu investigation [where the prosecutor believes she has jurisdiction and can ask judges to let her launch an investigation]. Of course it has been difficult at this stage. Secondly we have tried the referral of a state party and of course we have approached various states [parties to the ICC who could refer a case involving their citizens to the ICC under article 14 of the Rome Statute].

The most favorable responses we have had so far from Spain, Belgium, and Sweden. This is an important indication of the fact that that is political will. This has never been done before. To be honest it’s not difficult to understand that the Belgium government is investigating ISIS members committing crimes against Belgian citizens but it is not investigating Belgian citizens committing crimes against Yazidi women.

We have tried to have an Iraq declaration on article 12 of the Rome Statute [where a non-state party can accept the court’s jurisdiction for a certain situation] to be able to refer a specific area the area around Sinjar for a specific time period.

How are you proving genocide, do you feel you have the evidence to prove all the elements, including intent?

JF: For proving a genocide, is it has to be a large group and a specific group of people that can be defined. The Yazidi population is very specific. They have been in the area of Sinjar for hundreds of years. They have a specific religion. This is not the first time they have been targeted. When you look at the way in which ISIS approached the Yazidi it was different from all the other minorities such as Turkmen and Christians. The Yazidi were singled out. And the intention aspect of it is hard to question. ISIS have publicly and openly said that the Yazidi need to be wiped out. Their newsletter with the policy towards the Yazidis showcases articles from leading thinkers. The way it is produced and distributed shows it is part of the official network of propaganda of ISIS. It’s written in black or white. It’s in their videos. They haven’t been shy in their words.

Iraq, war crimes, Yazidi, genocide, ICC

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