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Home , Ethnocide, Fall of Mosul, Lalish, Melek Taus, Religion in Kurdistan, Yazidis

EXECUTIVE SUMMARY

This report urges immediate international recognition of the suffering of the Yazidi people in light of the perpetrated by ISIS. Under the and the ICC Rome Statute, ISIS genocidaires are guilty by the commission, in a systematic manner, of all five enumerated acts of genocide: 1) killing, primarily of Yazidi men by targeted execution; 2) causing serious bodily or mental harm, primarily to Yazidi women by sexual violence and enslavement; 3) deliberately inflicting conditions of life calculated to bring about physical destruction, primarily by besieging trapped Yazidi civilians; 4) imposing measures to prevent births, primarily by forced abortions and the separation of Yazidi men and women; and 5) forcible transfer of children, primarily by abduction. Sufficient evidentiary findings support the legal inference of a requisite specific intent “to destroy, in whole or in part,” the as a protected group. Therefore, the Kurdish Regional Government should exercise its jurisdictional authority to establish a fully hybrid tribunal, supported with international resources and legal expertise, to enable proper prosecution of the perpetrated by ISIS genocidaires within its territory. Pursuant to the authority conferred to domestic enforcement by the Genocide Convention, Article 6, the Kurdish Regional Government has and should exercise such authority to prosecute the genocide of the Yazidi people. The Kurdish Regional Government deserves international financial, technical, professional, and logistical assistance in pursuit of justice for the Yazidi, Kurdish, and Iraqi peoples against the gross atrocities of ISIS genocidaires.

INTRODUCTION is carefully defined as the The rapid spread of ISIS (Islamic State of commission of some enumerated act, such and al Sham) over northern Iraq since as killing, joined with a specific intent “to June 2014 has caused the displacement of destroy, in whole or in part, a national, more than 2 million people and resulted in ethnical, racial, or religious group, as such.” severe abuses, imperiling local Under the Genocide Convention minority groups in particular. Atrocities and the ICC Rome Statute, the Yazidis are a committed by ISIS terrorists have included protected group, both ethnic and religious. targeted execution, , rape, Under the Genocide Convention sexual enslavement, child abduction, and and the standards of the Rome Statute, ISIS destruction of locations of religious and genocidaires have formed the requisite cultural significance. The full weight of intent to destroy, in whole or in part, the these atrocities is increasingly well Yazidis as a group. Evidence establishes documented in authoritative reports, even this legal inference from the general context though their full scope remains unknown as of planned violence: the specific, investigation is continuing. This report discriminatory nature of the attacks against documents the legal conclusion that this the Yazidis, the targeted destruction of plan of violence by ISIS militants has Yazidi cultural and religious sites, a motive constituted a systematic pattern to destroy, to wage jihad against the Yazidis, a plausible in whole or in part, the Yazidis as an Iraqi premeditation of such a campaign against group. As such, members of ISIS stand the Yazidis, statements by ISIS propaganda guilty not only of innumerable war crimes calling for extermination of the Yazidi and crimes against humanity, but of a people, and finally a widespread and manifest pattern of genocide. systematic pattern to its organized violence. The Yazidis are a of Under the Genocide Convention northern Iraq, centered on within and the Rome Statute, ISIS genocidaires are Province. As a group, Yazidis have guilty of commission, in systematic manner, been specifically targeted by ISIS members of all five enumerated acts of genocide: 1) and have suffered some of the worst of its killing, primarily of Yazidi men by targeted atrocities. ISIS genocidaires have execution; 2) causing serious bodily or systematically executed Yazidi men and mental harm, primarily to Yazidi women by abducted Yazidi women and children en sexual violence and enslavement; 3) masse. They have implemented a brutal deliberately inflicting conditions of life policy of ‘death or conversion’ against the calculated to bring about physical Yazidis, destroying much unique destruction, primarily by besieging trapped and forcing Yazidis away from their cultural Yazidi civilians; 4) imposing measures to homelands. These Yazidis suffering at the prevent births, primarily by separation of hands of ISIS terrorists implicate the Yazidi men and women; and 5) forcible international law on genocide. transfer of children, primarily by abduction. Genocide is defined in Article 2 of This report demands international the United Genocide Convention, recognition of the suffering of the Yazidis and Article 6 authorizes enforcement by at the hands of ISIS genocidaires. Further, domestic legislation as well as ad hoc the Kurdish Regional Government should tribunals. The International Criminal Court exercise its jurisdictional authority to enable Rome Statute expressly incorporates a fully hybrid tribunal, supported with genocide as a crime under Article 6. The international resources and legal expertise,

1 pursuant to the authority conferred to such domestic enforcement under the Genocide Convention, Article 6, and in pursuit of justice for the Yazidi, Kurdish, and Iraqi peoples.

2 WHAT HAPPENED? persecuted as heretical at numerous times ISIS forces stormed the mostly Yazidi city throughout their difficult history as a group. of Sinjar on August 2 2014, capturing it in In reaction, they have developed a closed one day due to the defensive retreat of the and tight-knit community that accepts no KRG forces. This precipitated religious converts and forbids any marriage the forced flight of over 200,000 civilians, outside of their ethnic and religious group. mostly Yazidis, who were caught unaware ISIS propaganda has exploited these by the rapid advance and forced to escape misinterpretations of Yazidi beliefs to plan into the desert and mountains near Sinjar. a campaign of jihad and brutal treatment of ISIS fighters threatened to kill all Yazidis Yazidis in particular. In the published views who did not convert to , besieging of ISIS on Qur’anic “,” Yazidis almost 50,000 civilians trapped on Mt. are distinct from other Kurdish groups, in Sinjar without access to food or water. that Yazidis are kufr (apostates). Whereas These victims were mostly rescued by Abrahamic individuals (Christians, , coordinated US and Peshmerga forces by and Sunni and Shiite ) have a August 14. Yet, ISIS fighters still executed purported right to live under the jizya (tax), around 1,000 captives, including captured ISIS policy claims Yazidis do not have any Yazidis who had refused conversion. rights, only a choice of ‘conversion or death.’ Enacting this policy, ISIS fighters WHO ARE THE YAZIDIS? have committed gross atrocities against the The Yazidis form an ethno-religious group Yazidis, on a size and scale that threatens centered on the Kurdish region of Nineveh their continued viability as an Iraqi group. and Dohuk Governorates of north-western “Prior to the taking of Sinjar, Sharī’ah Iraq. The majority of Yazidis reside in Iraqi students in the Islamic State were tasked , with in other Middle- to research the Yazidi to determine if Eastern and Western countries. While the they should be treated as an originally main within Kurdistan is Sunni mushrik group or one that originated as Islam, the Kurdish people represent a more Muslims and then apostatized … [T]he diverse minority linked by common ties of apparent origin of the religion is found in ethnicity, geography, and Kurdish language. the Magianism of ancient Persia, but Within this diverse yet related , reinterpreted with elements of the Yazidis are unique as a monotheistic Sabianism, , and , and people whose beliefs blend elements of ultimately expressed in the heretical Christianity, Islam, , and vocabulary of extreme . pre-Abrahamic Mesopotamian . Accordingly, the Islamic State dealt with The Yazidi system includes this group as the majority of fuqahā’ have , with a main figure named “Melek indicated how mushrikīn should be dealt Taus.” Portrayed in peacock traits, Melek with. Unlike the Jews and Christians, Taus is benevolent and intrinsically good, there was no room for jizyah payment. following a reconciliation with that Also, their women could be enslaved reflects on the mortal condition of sin. Yet unlike female apostates who the majority in mainstream Islam, a similar theological of the fuqahā’ say cannot be enslaved and narrative (without reconciliation) represents can only be given an ultimatum to repent the evil “devil” figure. Further, the Yazidi or face the sword.” dualism has been misunderstood as mushrik [-- Dabiq, Issue 4] (polytheistic). Thus, the Yazidis have been

3 WHAT IS GENOCIDE? crime of genocide under the more explicit The ICC Rome Statute incorporates the ICC Rome Statute, which satisfies the text of the Genocide Convention in Genocide Convention. specifying the legal elements that establish The unique requirement of the specific genocide.1 The enumerated acts must be intent “to destroy, in whole or in part” committed with a specific intent “to distinguishes genocide from other atrocities destroy, in part or in whole, a national, (crimes against humanity and war crimes).7 ethnic, racial, or religious group, as such.”2 This proof of intent is required for both the The five enumerated acts are: enumerated acts and all contextual elements (the targeted group and a manifest pattern). (a) killing members of group; (b) causing serious bodily or mental harm WHAT IS THE HISTORY OF to members of the group; GENOCIDE? (c) deliberately inflicting on the group The term “genocide” did not exist prior to conditions of life calculated to bring about 1944. To describe the Nazi’s organized and physical destruction in whole or in part; systematic murders during , (d) imposing measures intended to prevent , a Polish-Jewish lawyer, births within the group; combined geno, Greek for “race or ,” (e) forcibly transferring children of the with cide, Latin for “killing,” as a legal term. group.3 Thus for most of human history, genocide has gone unpunished and often Finally, the acts must occur "in the context unacknowledged. Only in rare instances, of a manifest pattern of similar conduct such as regime changes, were state powers directed against [the group] or was conduct held accountable for their past atrocities. that could itself effect such destruction."4 Otherwise, victims of a state regime simply While both the Genocide had no recourse for accountability. It was Convention and the ICC Rome Statute not until the early twentieth century that the state the same act and intent elements,5 the international views began to shift. After Genocide Convention does not expressly World War I, the non-interventionist view state the contextual element of a “manifest began to give way to new ideas about pattern” which is included in the ICC international human rights law. In 1948, in Rome Statute.6 This report assesses the the aftermath of World War II, the UN

1 Convention on the Prevention and Punishment of conduct was part of or intended the conduct to be the Crime of Genocide, art. II, 9 Dec. 1948, 78 part of a widespread or systematic attack directed U.N.T.S. 277 [hereinafter Genocide Convention]. against a civilian ) with Genocide 2 Rome Statute of the International Criminal Court, Convention, art. II (simply requiring that the acts be art. 6, U.N. Doc. A/CONF.183/9 (1998) committed with intent to destroy, in whole or in [hereinafter Rome Statute]. part, a national, ethnical, racial, or religious group, as 3 Rome Statute, art. 6; see also ICC Elements of such). Crimes, art. 6 (adopting the structure of the 7 Compare Rome Statute, art. 6 (defining genocide elements of genocide from the Rome Statute). with a special intent requirement that the underlying 4 ICC Elements of Crimes, art. 6. act be committed with the intent to destroy the 5 Compare ICC Elements of Crimes, art. 6 with target group, in whole or in part) with Rome Statute, Genocide Convention, art. II. art. 7 (defining crimes against humanity without a 6 See infra, III. “Manifest Pattern.” Compare ICC special intent requirement) and Rome Statute, art. 8 Elements of Crimes, art. 6 (containing the (defining war crimes without a special intent requirement that “the perpetrator knew that the requirement).

4 General Assembly (GA) adopted the Thus, the enumerated acts committed by Genocide Convention. In full force by ISIS genocidaires properly imply an analysis 1951, the Genocide Convention established of genocide under the Rome Statute, Article not only a definition for the great crime of 6. genocide but mandated that signatories take steps to prevent and punish genocide itself. A. ETHNIC GROUP In the Genocide Convention, the Under the ICC Rome Statute, an ethnic UN also recognized a need for an group must either have its own language, enforcement mechanism to prosecute those maintain its own tribal customs, or have its who committed its new, enumerated crimes own traditional ties to the land on which it – genocide, war crimes, and crimes against is located. The subsequent case law has humanity. But relevant preparations for an further broadened the definition of the international court were sidelined during "group" by inclusively defining an ethnic the Cold War. The ICC Rome Statute, group through "common language or finally adopted in 1998 and entered into culture." This inclusive "group" definition force in 2002, established the first would allow many communities of Iraqi permanent international criminal court. Kurdistan, not only Yazidis, to seek legal Within a year, the ICC was operational. In protection from by ISIS forces. 2005, it issued its first arrest warrant, and as While the Yazidi community speaks recently as 2009, its first trial began. the same Kurdish language as other , While negotiations on establishing the group has distinct tribal customs that the ICC were taking place, the simultaneous differ from its surrounding communities. atrocities in Yugoslavia and Rwanda rattled More importantly, the Yazidi culture has a the international community. For the first centuries-old connection (as far back as the time, the systematic human destruction was twelfth or thirteenth century) to the Sinjar broadcast around the world. Global actors Mountains and the Nineveh-Dohuk region. and audiences demanded accountability. To The region is home to the holiest of Yazidi deal more proactively with these crimes, the locations and ancestral lands. This rich and UN Security Council established ad hoc intimate connection with land is inherently tribunals for both Yugoslavia and Rwanda. part of the story of the Yazidis as a people. These ad hoc tribunals have helped refine and elaborate upon the law of genocide. B. RELIGIOUS GROUP Under the ICC Rome Statute, a religious ISIS GENOCIDAIRES COMMITTED group must either share the same religion GENOCIDE AGAINST THE or mode of . The type of evidence YAZIDIS considered to show similarity of religion includes both subjective and objective Application of the Elements criteria. Objective criteria center on the standard religious practices and dogma I. THE YAZIDIS ARE AN ETHNO- within the community. Subjective criteria RELIGIOUS GROUP include both how the specific community The genocide jurisprudence first requires views itself and how external communities that the Yazidis be positively defined as a view it in the greater regional, national, and group protected under statute. A thorough international context. Such criteria often study of the case law establishes that the implicate other areas of the Rome Statute Yazidis are an ethnic and religious group. Article 6 protection, drawing on these

5 ethnic, racial, and national contexts so as to has been committed and set it apart from determine whether a community constitutes other international crimes. a statutorily protected religious group. Mens rea is not readily susceptible to The Yazidis constitute a protected direct proof. “Only the accused himself has religious group by both objective and first-hand knowledge of his own mental subjective standards. The Yazidis devoutly state, and he is unlikely to testify to his own practice a distinct religion. The veneration .”9 Criminal law generally of (a peacock ) as a proxy presumes that an individual intends the for singular monotheistic worship of God, consequences of his or her actions. Thus, multi-daily , and pilgrimages to holy proof of intent is inferred indirectly from sites north of are – in combination – the logical deduction based on the evidence unique facets of the Yazidi religion and of the material acts. wholly distinct from neighboring religions. In application to genocide, such The dominant is logical inferences have been drawn from , while the majority of all the wide-ranging general context. In practice . Further, the Yazidis are Kayishema, the ICTR included, “general forbidden to convert or marry into other context, the perpetration of other culpable religions. Similarly, the Yazidis do not acts systematically directed against the same accept converts into their . This total group, the scale of atrocities committed, the exclusion of outside religions distinguishes systematic targeting of victims on account their religious community from all others. of their membership in a particular group, While Yazidis and Kurdish-Iraqi Muslims or the repetition of destructive and have often existed peacefully, there have discriminatory acts.”10 Similarly in Akayesu, been historical incidents where the Yazidis the ICTR’s holding specified that relevant have been singled out as a separate religious factors include the “general context” of the entity. 8 This provides an explicit, external acts, such as: their scale, nature, location, recognition of their unique belief system. plan or system, and manner of exclusion.11 ICTY jurisprudence also permits the II. ISIS GENOCIDAIRES FORMED A inference of genocidal intent based on an SPECIFIC INTENT TO DESTROY overall assessment of the general context, For the crime of genocide to be complete, the perpetration of other culpable acts both mental (mens rea) and physical (actus systematically directed against the same reus) elements must be present. Under the group, the scale of atrocities committed, the mens rea component, Article 30 of the ICC systematic targeting of victims on account Rome Statute has two components: (1) of their membership of a particular group, knowledge threshold; and (2) specific and the repetition of destructive and intent. Both elements are integral in the discriminatory acts.12 determination of whether legal genocide

8 Local sources have recorded as many as 72 12 Prosecutor v. Jelisic, (Case No. IT-95-10-A), separate instances of historical persecution. Judgment, July 5, 2001, para. 47. See also Prosecutor v. 9 Prosecutor v. Popovic, (Case No. IT-05-88-T), Stakic, (Case No. IT-97-24-T), Judgment, 31 July Judgment, 10 June 2010, para. 823. 2003, para. 526 (“It is generally accepted, particularly 10 Prosecutor v. Kayishema, (Case No. ICTR-95-1-T), in jurisprudence of both this Tribunal and the Judgment, 21 May 1999, para. 93. Rwanda Tribunal, that genocidal dolus specialis can 11 Prosecutor v. Akayesu, (Case No. ICTR-96-4-T), be inferred either from the facts, the concrete para. 523-24.

6 blindness” to constitute sufficient knowledge.18 A. KNOWLEDGE Knowledge means awareness that B. SPECIFIC INTENT circumstances exist or consequences will What separates genocide from other occur in the ordinary course of the actions international crimes (such as crimes against taken by the defendant.13 humanity and war crimes), however, is the Negligence or the “should have had second mens rea component of intent. The knowledge” standard is inappropriate for requisite intent is to "destroy the group, in the crime of genocide.14 However, whole or in part, as such."19 recklessness, the “knowledge of risk” Specific intent goes beyond the mere standard, may amount to knowledge in performance of the actus reus (i.e., a general certain cases with respect to an act’s intent). This means, as the ICTR elaborated consequences.15 This is measured on a in Akayesu, “it is necessary [that the act] … sliding scale, in which dolus eventualis16 would be committed against a specifically targeted represent an insufficient threshold. But group.”20 because recklessness is a measure of risk, The assessment of genocidal intent past a certain threshold of likelihood, such should not be compartmentalized by a risk can be held to amount to a certainty. separate genocidal acts, but rather based on In application to the broad scale of all available evidence. the crime of genocide, the knowledge threshold for specific intent immediately 1. “To Destroy” implies a requirement for organization, In contrast to genocide, ethnic cleansing21 bureaucracy, or systematic planning against refers to a specific intent to displace a group, the protected group, in whole or in part. rather than to destroy it. Thus, while the Genocide can hardly be committed by an material acts may be similar between the individual acting alone. Yet the requisite two crimes, it would be incorrect to assert knowledge can be inferred from the nature as a form of genocide, of the order to commit the prohibited acts even though the two may share the same given to a subordinate who lacks full goal – the removal of a population from a knowledge of a systematic plan.17 Finally, given area.22 Thus, ethnic cleansing constructive knowledge is a judicial amounts to either a crime against humanity doctrine that accepts proof of a “willful or war crime, but not genocide. In terms of policy, however, it is a warning sign of

circumstances, or a pattern of purposeful 17 See Prosecutor v. Tadic, (Case No. IT-94-1T), action.”(citations omitted). Judgment, 7 May 1997, para. 199-201, 206. 13 William A. Schabas, GENOCIDE IN 18 Id., para. 202-05. INTERNATIONAL LAW: THE CRIME OF CRIMES 188, 19 Rome Statute, art. 6. (2nd ed. 2009) 20 Prosecutor v. Akayesu, (Case No. ICTR-96-4-T), 14 This is distinct from mistake of law, however, Judgment, 2 September 1998, para. 499. which is no defense. 21 There is no authoritative definition of ethnic 15 See Prosecutor v. Delalic, (Case No. IT-96-21-T), cleansing and it a relatively new term, first appearing Judgment, para. 439 (concerning the genocidal act of only in 1981 in the Yugoslav media to describe killing). events unfolding in Kosovo. 16 Where a perpetrator foresees indirect 22 With respect to intent, “it is logically consequences as a likely possibility. inconceivable that the two agendas coexist.”

7 impending genocide, which is a logical murder), rather than genocide. However, result when ethnic cleansing attempts are “No acceptable rationale can justify why an frustrated. individual murder [with the requisite intent] … should not be … genocide.”28 2. “In Whole or in Part” To find legal genocide, the acts committed 3. No Premeditation Required must be intended to destroy a specific Premeditation means a plan or preparation group, “in whole or part.” This element is prior to the commission of the crime. In satisfied if a substantial part of the group is domestic criminal law, many penal systems targeted and destroyed, such as in a specific consider it an aggravating factor, especially geographically limited area.23 The portion with respect to sentencing. However, the targeted must be “significant enough to travaux preparatoires establish that the have an impact on the whole.”24 Genocide Convention did not extend this The numeric size of the part of the concept to the crime of genocide. targeted group in both absolute terms and Nevertheless, premeditation must be relative to the overall group size, “is the distinguished from proof of a systematic plan, necessary and important starting point in without which a conviction of genocide assessing whether the part targeted is would be extremely unlikely.29 substantial enough - but is not in all cases In application, this allows for the the ending point of the inquiry.”25 Other guilt of an individual who acts without considerations include “prominence within premeditation, but with full knowledge of a the group of the targeted part, whether the systematic plan, especially in a capacity of targeted part of the group is emblematic of an inferior subordinate. However, the the overall group, or is essential to its ICTR’s decision in Kayishema has in effect survival, and the area of the malefactors’ required premeditation for the “intent to activity and control and limitations on the destroy,” element, but not for the individual possible extent of their reach.”26 The actus reus.30 relative weight of each factor will vary depending on the circumstances of the C. MOTIVE case.27 Unlike intent, motive is not a In application, this inference required element, although evidence of it requires more proof when there have been can be relevant to trial and sentencing. fewer victims, based on a proportion of the Specifically, a complete lack of any motive targeted group. This is because of an intent can suggest lack of the requisite intent. As to destroy an individual member of the in domestic criminal laws, proof of motive group, rather than the group itself, is not required, as it could unnecessarily constitutes a (racially motivated narrow the scope of offense, even when the

23 Claus Kreβ, The Int’l Court of Justice and the Elements 28 See G.A Res. 37/123, ¶ 2, U.N. Doc. of the Crime of Genocide, 18 EUR. J. INT’L L. 619, 627 A/RES/37/123/D (16 Dec. 1982) (declaring the (2007). massacre of hundreds of Palestinian refugees an “act 24 Prosecutor v. Krstic, (Case No. IT-98-33-A), Appeal of genocide”). Judgment, 10 Apr. 2004, para. 8. 29 See infra Section III.E, Implied Elements of a 25 Prosecutor v. Popovic, (Case No. IT-05-88-T), Plan. Judgment, 10 June 2010, para. 832. 30 See Kayishema (“The mens rea must be formed prior 26 Id. to the commission of the [actus reus].”) 27 Id.

8 requisite mens rea and actus reus are present. In application, the ICTFY has held In the Genocide Convention, the concept that proof of a defendant involved in the of motive is referenced only implicitly destruction of cultural monuments or through the words “as such.” Yet, the similar acts directed against the culture of a travaux preparatoires reveal that the proposal group will aid the court in assessing intent to omit motive entirely was ultimately and motive. In Karadzic and Mladic, the rejected, as was the proposal for an court concluded that the destruction of enumerated motive. Thus, the “as such” mosques, Catholic churches, and libraries in consensus included a nonenumerated motive.31 Bosnia was “designed to annihilate the In application, the international centuries-long presence of the group or tribunals have variously avoided or hedged groups” and “intended to annihilate a on the issue of Motive as an independent culture.” element. The ICTR’s opinion in Akeyasu only referred to motive once (“ulterior III. “Manifest Pattern” motive”) without elaboration. Similarly, in In preparing the Genocide Convention, the Kayishema, the ICTR’s holding only referred US first proposed a “plan to destroy” to “grounds” without elaboration. The element, but later amended it to ICTFY once held that a “purely personal” “widespread or systematic policy or motive was insufficient for crimes against practice.” This wording itself was criticized humanity, but this was overturned by the as unnecessary, due to the requisite massive Appeals Chamber. Also, in the case of the scale of the crime, until noted that “it Australian Human Rights Commission, is hard to conceive of a genocide without investigating child transfers from aboriginal it.” The consensus text suggests acceptance peoples, the ruling held that a “mixed of a “plan” element, in a cautious form. motive” (e.g., to educate the children) was In contrast, the ICC Rome Statute no defense if it included elements of explicitly requires a "manifest pattern" as a genocide. contextual element for genocide. This In conclusion, while the role of requirement is derived from the Genocide motive is somewhat ambiguous in the Convention's implied element of a plan, or proof of genocide, it seems unreasonable to systematic pattern. By making the "manifest dismiss its role entirely. pattern" a formal element, the ICC Rome Statute requires that each of the actus rei D. align with this plan or "manifest pattern," Cultural genocide refers to the destruction to ensure that it meets the high standard of of “specific characteristics” of a group, the specific intent "to destroy." This such as culture, language, history, or works. showing is often proven in context, as mens Acts of cultural genocide, or ethnocide, do rea and acti rei elements are considered by not constitute genocide, as they are not the court. among the punishable acts enumerated by In application, this “manifest the Genocide Convention.32 However, the pattern,” requires an individual have targeting of a culture remains relevant as knowledge of a plan or the surrounding evidence of the specific intent to destroy. circumstances to establish guilt, although

31 The interpretation of motive was understood to 32 See infra, Sec. III.E. be non-limitative and subject to judicial interpretation.

9 the individual need not have taken part in reported, with excavations underway to developing the plan itself. Knowledge must document their full scope. Such systematic be “of the ultimate objective.” On an abuses, committed simultaneously individual level, this implies that proving throughout the Yazidi region of Sinjar and knowledge of a plan is likely easier for a coordinated within a short time frame, leader than for an inferior subordinate. strongly support the argument that ISIS However, in Tadic, the ICTFY accepted genocidaires acted on a specific intent to evidence that the individual defendant was destroy the Yazidis as such. an “earnest party member” to establish Evidence shows that ISIS forces intent regarding its unlawful platform. not only had knowledge of the Yazidis as a In Akeyasu, the ICTR held that religious and ethnic group, but also “massive and/or systematic nature” implies collected detailed research on the Yazidis’ “preconceived plan or policy.” Similarly in culture and geography in the pre-offensive Kayishema, the ICTR observed that “it phase. In Issue 4 of the ISIS propaganda would appear that it is not easy to carry out magazine, Dabiq, the feature article a genocide without a plan or organization.” specifically highlights the Yazidi people at Further, “the existence of such a plan length. would be strong evidence of the specific intent requirement.” Furthermore, the coercive dislocation of civilians signals a “manifest pattern.” In Judge Muhammad ‘Iraybi Majid Al-Khalifah’s opinion in the Al-Anfal decision, convicting ‘Ali Hasan Al-Majid of genocide, he stressed the “coerce dislocation of civil inhabitants” to illustrate “a provisionary plan or policy to commit genocide.”33 Similarly, the ISIS terrorists displaced several thousands of Yazidi women, men, and children, indicating a similar “manifest pattern” or plan to destroy the Yazidis.

E. APPLICATION: THE GENOCIDAL INTENT OF ISIS GENOCIDAIRES The numerous atrocities committed by ISIS forces have been documented foremost by Kurdish officials. Yazidi men were systematically executed, and Yazidi women and children were systematically sold into . Since the retreat of ISIS forces from certain areas, mass graves have been

33 BEHZAD ALI , AL-ANFAL COURT DECISION: A JUDICIAL, POLITICAL, AND HISTORICAL DOCUMENT 401 (2014).

10 ISIS participants wage a war of In a propaganda video released by ISIS propaganda for establishing the legitimacy militants, which was translated into of its self-proclaimed “caliphate” and for English by the Media motivating jihadist fighters, especially Research Institute (MEMRI), an foreigners, to rally their violent cause. Its unnamed ISIS commander justified the extremist interpretations of the Quran and massacre of Yazidi stating that, “We Shari’a law are key to its Islamic claims, as it have been fighting for no other reason claims it is under an obligation to wage than to extract people from their kufr jihad against “apostates.” Thus, waging war and to usher them into the fold of Islam. against the Yazidis adds to the successful But the Yazidi refused, and insisted on conversion, displacement, or destruction of fighting us. So we fought them, with the the Yazidi people, while adding weight to grace of Allah, and the city of Sinjar was ISIS members’ extremist interpretation of conquered.” The commander then goes establishing Islamic “caliphate.” Such on to state that, “…before the conquest actions serve as powerful recruitment tools of Sinjar and of Tel Afar, we were willing for the Islamic state. The call to arms to guarantee their safety and to provide against non-Muslim “infidels” can also for their needs to be the best of our serve as a rallying standard for new ability, but they insisted on fighting us.” jihadists. Given carefully constructed The propaganda video then provides ideology of ISIS genocidaires, evidence footage of ISIS participants welcoming suggests a strong motive for the their “Yazidi brothers who have destruction, displacement, or conversion of converted to Islam.” A bus pulls up, Yazidis – a motive for genocide. dozens of Yazidi men exit, in a long line, In terms of cultural destruction, it is hug their ISIS captors and then are important to recognize that the destruction ushered into a mass conversion of the Yazidis’ culture highlights that the ceremony. group was targeted due to their beliefs. The Yazidis have witnessed devastating losses of [--Lauretta Brown, ISIS Commander Justifies cultural heritage as well as physical Massacre: ‘We Had Called Upon the Yazidis to Convert', CNS NEWS (AUG 21, 2014)] displacement from their ancestral and spiritual homeland around Sinjar. The full extent of this destruction remains unclear due to the continuing occupation by ISIS Given planned destruction, evidence members in the Sinjar area. Nevertheless, suggests the logical inference that the there is evidence that Yazidi religious sites Yazidis were targeted due to their religion, have been purposefully targeted by ISIS with genocidal intent. terrorists. For example, photographic and testimonial evidence suggests that the IV. ISIS COMMITTED EACH OF temples of Sin, Sheikh Mikhfiya, and THE PUNISHABLE ACTS OF the Shrine of Shaqsebat in Babire have been GENOCIDE destroyed as of late August 2014. ISIS The mens rea or “intent” elements were genocidaires have widely publicized their previously discussed. This analysis will now destruction of such “polytheistic” shrines. concentrate on whether ISIS members The holiest Yazidi site, the temple complex performed the requisite physical acts against of , has become a threatened place of the Yazidis to constitute legal genocide. refuge for over 2000 Yazidi families.

11 Both the Genocide Convention and The ISIS militants massacre of the Rome Statute outline five specific acts that Yazidi people, which began in Sinjar on will individually establish legal genocide. August 2, 2014, is genocide under the Rome Each act under the Rome Statute repeats State, Article 6(a), genocide by killing the mens rea (intent to destroy a particular members of a group, in whole or in part. national, ethnical, racial or religious group, From this time through the present, ISIS in whole or in part) and manifest pattern terrorists have systematically targeted and elements discussed above. The mens rea, killed the Yazidis, considering them heretics, therefore, applies to all of the Rome devil worshippers, and incompatible with Statute’s acti rei. their extremist beliefs. Witnesses report that Islamic State fighters spent approximately The five specific acts are: five days trying to persuade Yazidi villagers to (a) Killing members of the group; convert to Islam.35 After these five days, ISIS (b) Causing serious bodily or mental members stormed Sinjar. harm to members of the group; During the ISIS militants’ takeover (c) Deliberately inflicting on the group of Sinjar, men and boys were segregated conditions of life calculated to bring from women and children. The Yazidi men about its physical destruction in and boys were further segregated by whole or in part; religious identity and then slaughtered (d) Imposing measures intended to wholesale. Meanwhile, Yazidi girls and prevent births within the group; women were taken prisoner and later sold (e) Forcibly transferring children of the into . An estimated several group to another group. thousand Yazidi – including the elderly and disabled – were kidnapped and taken A. KILLING MEMBERS OF THE prisoner during the storming of Sinjar.36 GROUP Such methodical separation and Killing or causing the death of one or more subsequent massacre of people has been person of a statutorily protected group found by international courts to constitute constitutes legal genocide under Article 6(a) legal genocide. During the Yugoslav Wars, of the ICC Rome Statute. The element is Bosnian-Serb forces often separated satisfied as long as the genocidaire intended Bosnian Muslims from other Bosnians and to kill the person. While there has been some further segregated these people based on debate among scholars about this specific gender and age. In Srebrenica, Bosnian intent element, it is generally accepted that Muslims aged 16 through 65 were separated the genocidaire must intend the person’s from their communities and either killed on death. This is a separate but closely related sight or bused to isolated showing of intent.34 locations. The ICTY has ruled that these

34The Court in Akayesu noted that the French http://www.cnsnews.com/news/article/lauretta- version of the Statute employed the term “meurtre.” brown/isis-commander-justifies-massacre-we-had- Unlike the English word, “killed,” which could called-upon-yazidis-convert. cover both intentional and unintentional killings, 36Fazel Hawramy, Freed Yazidi: I was beaten by Isis “meurtre” signifies that the individual actually because I refused to say the Shahada, intended the person’s death. (Jan. 19, 2015), 35 Lauretta Brown, ISIS Commander Justifies Massacre: http://www.theguardian.com/world/2015/jan/19/ ‘We Had Called Upon the Yazidis to Convert', CNS freed-yazidi-shepherd-i-was-beaten-by-isis-shahada. NEWS (Aug. 21, 2014),

12 actions committed in Srebrenica constituted treatment” of group members.38 Given the legal genocide by killing. innumerable reports that thousands of ISIS terrorists’ August 2nd, 2014 Yazidi females have been kidnapped, raped, attacks on the Yazidi in Sinjar and and sold at slave markets to ISIS fighters, elsewhere mirror those in Srebrenica. They ISIS militants are guilty of genocide by conducted a planned and organized causing serious bodily or mental harm paramilitary strike on Sinjar and the Yazidi under Article 6(b). Girls as young as 10 people residing there. Yazidi boys and men years old have been found in slave markets were separated and killed and women and in Mosul and .39 children were sold into slavery. Local Tribunals have found systemized officials estimate that during these attacks, rape and sexual violence to be legal at least 500 Yazidis, including 40 children, genocide under Article 6(b). During the were massacred by ISIS militants.37 ISIS , females were raped and genocidaires’ systematic and deliberate sexually assaulted due to gender and slaughter of Yazidis in Sinjar constitutes ethnicity. The ICTR judges have ruled that legal genocide by killing. Furthermore, an these acts committed in Rwanda amounted array of individuals can be held liable for to genocide through causing serious bodily the genocidal killing. From the foot-soldiers or emotional harm. Here, ISIS participants who conducted mass killing and raped and sexually assaulted Yazidi females kidnappings to the ISIS organization’s because of their religion, causing serious leadership that planned the large scale bodily and mental harm. This qualifies as a attacks, all can be held culpable. genocidal act under Article 6(b) due to their intent to destroy the Yazidis as a group, in B. CAUSING SERIOUS BODILY OR whole or in part MENTAL HARM TO MEMBERS OF Such sexually violent tactics are THE GROUP performed to intimidate, scare, and control Causing serious bodily or mental harm to a local community. However, to the members of a statutorily protected group Yazidis, it is religion that ultimately decides constitutes genocide under Article 6(b) of their fates. Often, these rapes occur with the ICC Rome Statute. The element is forced conversions. Those Yazidis who satisfied as long as the genocidaire intended convert are sold as brides to ISIS fighters to cause serious bodily or mental harm to while those that choose not to are kept as members of the group. Serious bodily or sex slaves. The Yazidi women who are kept mental harm is committed when the as sex slaves “face daily rape and a slow genocidaire engages in “torture, rape, sexual death.”40 violence or inhuman or degrading

37Raya Jalabi, Who are the Yazidis and why is Isis hunting GENOCIDE IN INTERNATIONAL LAW: THE CRIME them?, THE GUARDIAN (Aug. 11, 2014), OF CRIMES 188, (2nd Ed. 2009). http://www.theguardian.com/world/2014/aug/07/ 39 , IRAQ: YEZIDI who-yazidi-isis-iraq-religion-ethnicity-mountains. WOMEN AND GIRLS FACE HARROWING SEXUAL 38 In addition, it is important to note that in order to VIOLENCE (2014) available at prove genocide under the 6(b) prong that the https://www.amnesty.org/en/articles/news/2014/ prosecution does not need to demonstrate an 12/iraq-yezidi-women-and-girls-face-harrowing- explicit relationship between the act and how it was sexual-violence/. meant to destroy group. William A. Schabas, 40 Ford Sypher, Rape and Sexual Slavery Inside an ISIS Prison, THE DAILY BEAST (Aug. 28, 2014),

13 The degree of sexual trauma is so act is not necessary for the finding of severe within the Yazidi community that genocide. numerous suicides have been reported by For example, in the Al-Anfal court Amnesty International and other NGOs. decision, Judge Muhammad ‘Iraybi Majid The ICTR’s judgments stated that Al-Khalifah provided an explanation of “rape and sexual violence … [are] one of particular facts depicting such a deliberate the worst ways of inflict[ing] harm on a infliction. He noted, “[t]here are countless victim as he or she suffers both bodily and documents which confirm orders to mental harm.”41 Yazidi women have been demolish villages, carry out chemical subject to such suffering, and ISIS attacks, handing families [women, children, genocidaires continue to commit these and elders] to detention centers . . . All of genocidal acts. them were exposed to harsh inhumanity, torture, humiliation, , and lack of C. DELIBERATLY INFLICTING appropriated hygiene and medical care.”42 CONDITIONS OF LIFE These actions factored into Judge Al- CALCULATED TO BRING ABOUT Khalifah’s conviction of ‘Ali Hasan Al- PHYSICAL DESTRUCTION Majid. Deliberately inflicting conditions of life ISIS militants have systematically calculated to destroy members of a expelled Yazidis from their homes and have statutorily protected group constitutes legal forced those seeking shelter to flee into the genocide under Article 6(c) of the ICC wilderness surrounding their villages. Rome Statute. The element is satisfied as During their attacks on Sinjar in August long as the genocidaire intends to inflict 2014, ISIS militants trapped Yazidi refugees conditions calculated to destroy members on Mount Sinjar. By surrounding and of the group, including actions aimed at blockading these refuges in the mountains causing death. above Sinjar, ISIS members have caused “We were 21 girls in one room, two of This can include the starvation and malnutrition of women, them were very young, 10-12 years. One forced children, and elderly within the community. day we were given clothes that looked starvation or The Yazidis seeking refuge on Mount Sinjar like dance costumes and were told to malnutrition, were forced from their homes by ISIS bathe and wear those clothes. Jilan killed systematic militants. Fifty thousand Yazidis sought herself in the bathroom. She cut her expulsion from refuge on the mountain, surrounded by wrists and hanged herself. She was very homes and ISIS soldiers threatening to kill them, beautiful. I think she knew she was going shelters, the similar to the situation in the Al-Anfal to be taken away by a man and that is reduction of case.43 Without water and food, many why she killed herself.” essential medical within the community have fallen ill and services, and perished. These actions constitute a [--Mary Chastain, Amnesty International: ISIS Driving Yazidi Women to Suicide through Rape, rape. The deliberate infliction of conditions calculated Sex Slavery, BREITBART (Dec. 23, 2014).] success of the to destroy the Yazidis and are thus

http://www.thedailybeast.com/articles/2014/08/28 42 BEHZAD ALI ADAM, AL-ANFAL COURT /rape-and-sexual-slavery-inside-an-isis-prison.html. DECISION: A JUDICIAL, POLITICAL, AND 41 Prosecutor v. Akayesu, (Case No. ICTR-96-4-T), HISTORICAL DOCUMENT 400 (2014). Judgment, 2 September 1998, para. 731. 43 U.N. Report, Between the Millstones: The State of Iraq’s Minorities Since the Fall of Mosul, 13 (Feb. 2015).

14 genocide under Article 6(c) of the ICC undergo abortions, being first injected and Rome Statute. then forced to take pills. Prior to the procedure, one witness heard an ISIS D. GENOCIDE BY IMPOSING fighter state: “we do not want more Yazidis MEASURES INTENDED TO to be born.”47 One week after their PREVENT BIRTHS abortions, the two women were sold.48 Imposing measures intended to Rape and sexual assault can also prevent births on a statutorily protected qualify under Article 6(d) of the ICC Rome group constitutes genocide under Article Statute. The physical trauma of rape and 6(d) of the ICC Rome Statute. This actus sexual assault can destroy reproductive reus is satisfied through direct measures to functions, and in some cases lead to prevent births such as sterilization, infertility. Such an argument was castration and forced abortions qualify introduced during the Bosnian case heard under Article 6(d). In addition, indirect before the ICJ. However, there has not measures – such as rape and sexual assault been a successful, definitive ruling on this – also may constitute genocide under argument.49 With a strong showing of Article 6(d) of the ICC Rome Statute. declining birthrates among Yazidi women Furthermore, this actus reus is satisfied as due to sexual violence, such an argument long as the genocidaire intended to impose could be upheld. measures intended to prevent births on a Rape can also constitute legal group, in whole or in part. The genocidaire genocide under Article 6(d) due to the does not have to be successful at destruction of Yazidi ethnicity through preventing birth, only that actions taken by impregnation. The ICTY judges’ decisions him could have and were intended to affect have acknowledged that rape, in some that result.44 circumstances, can be used as birth Reports indicate that ISIS doctors prevention tactic.50 Since the Yazidis are a performed abortions on women who were closed ethno-religious group, marrying and previously pregnant with “infidel” procreating only within their own children.45 One woman described how an community, rape and impregnation by non- ISIS doctor sat on her stomach, aiming to Yazidi ISIS militants can be seen as kill her unborn child.46 Two other women preventing the birth of fully Yazidi detailed how they were also forced to offspring.51 By forcing Yazidi women to

44 William A. Schabas, GENOCIDE IN traumatized, which compromised their reproductive INTERNATIONAL LAW: THE CRIME OF CRIMES 198, functions leading to infertility. Unfortunately, the (2nd Ed. 2009). prosecution only brought forth one witness who 45 High Commissioner for Human could no longer bear children due to her injuries. Rights, Report of the Office of the United Nations High Further, the accused died, and therefore the case Commissioner for Human Rights on the human rights was halted. situation in Iraq in the light of abuses committed by the so- 50 The Trial Chamber of the Yugoslavia Tribunal called Islamic State in Iraq and the and associated found that “[t]he systematic rape of women…is in groups, ¶ 39, U.N. Doc. A/HRC/28/18 (March 13, some cases intended to transmit a new ethnic 2015). identity to the child.” 46 Id. 51 The Daily Mail recently quoted Adnan Kochar, 47 Id., para 41 chairman of the Kurdish Cultural Centre in London, 48 Id. stating that, “The Kurds and Yazidis are originally 49 In that case, it was argued that rape and sexual . But because the Yazidis are such a closed assault resulted in women being physically community they have retained a fairer complexion,

15 birth non-Yazidi offspring, ISIS terrorists Forcibly transferring children belonging to are necessarily preventing the birth of a statutorily protected group constitutes legitimate Yazidi community members. The legal genocide under Article 6(e) of the more forced rape and impregnation ISIS ICC Rome Statute. The element is satisfied fighters subject Yazidi women to, the lower as long as the genocidaire intended to the birth-rate of legitimate Yazidis forcibly transfer children belonging to the becomes. These results, coupled with the protected group. Children are defined as intention of boosting their caliphate’s birth those who are under the age of eighteen. rates, appears to be the direct goal of ISIS The genocidaire either has to know, or extremists: “It has been stated that the should have known, that the children were conquests of the lands of kufr multiply as under eighteen and that their transfer was well as enslavement, and thereby from one group to another. This transfer concubines increase in numbers, until the can be done either by “threat or force or slave women give birth to their masters, coercion, such as that caused by fear, this is because the child of the master has violence, duress, detention, psychological the status of the master [meaning he is a or abuse of power, against such free man like his father], and thereby she person or persons or another person, or by has given birth to her master from this taking advantage of a coercive angle.”52 environment.”53 The forced segregation of sexes by Direct evidence of child ISIS militants could qualify as legal kidnappings and forced transfer to ISIS genocide under Article 6(d). International military bases is abundant. In some trial court judgments in ad hoc tribunals have instances, Yazidi boys as young as eight found that measures intended to prevent have been forced into becoming child births include forced separation of males soldiers. Those deemed inadequate for and females. By separating and then fighting are subjected to ideological murdering Yazidi men and boys while indoctrination of radical Islam. Often times, simultaneously forcing Yazidi women and both the child soldiers and those subject to girls into sex slavery or marriage, ISIS intense Islamic radicalization were severely genocidaires may have caused dramatic beaten when ISIS instructors found their decline in birthrates within the Yazidi performance subpar. ISIS propaganda community. While separation and publicized child soldiers in videos, extermination of sexes is not as sometimes with children carrying AK-47s straightforward as sterilization or castration, and grenades. the result is essentially the same. The systematic and organized policy of child recruitment is demonstrated not only in the existence of camps with large number of child soldiers being trained, but also the creation of literature on the subject. E. GENOCIDE BY FORCIBLY In January, ISIS members released a book TRANSFERRING CHILDREN titled the Sister’s Role in Jihad which outlines blonder hair and bluer eyes. They don't marry non- 52 The Revival of Slavery Before the Hour, DABIQ, iss. 4, Yazidis.” The article also included speculation that at 14, 16. ISIS was indeed trying to smash the Yazidi 53 Elements of Crimes, ICC-ASP/1/3, p. 114. bloodline.

16 that the “most important” role a woman Opportunities Commission report can play in the Jihad is to raise children who concluded that, the “[r]emoval of children are not only Jihadists in spirit but also in with this objective [to absorb or assimilate ability. The “Cubs of the Caliphate” must indigenous children into the larger be indoctrinated early; ““Don't wait until they Australian society] was genocidal because it are seven to start, for it may be too late by aims to destroy the ‘cultural unit,’ which the then!”54 As ISIS grows in strength, these Convention is concerned to preserve.”55 children are the foundation for the ISIS Therefore, the forcible transfer of organization. Yazidi children from their homes and The elements of genocide under communities through kidnapping and other Article 6(e) are fulfilled by ISIS participants’ means by ISIS forces is genocide under actions against the Yazidis. Given that ISIS Article 6(e) of the Rome Statute. This fighters have kidnapped children as young forced transfer by ISIS forces not only as ten and have advocated for destroys the Yazidi ethnicity and religion, it indoctrination before the age of seven, they indoctrinates a new belief system on those have direct knowledge and intention that children taken from their families. This these children are under the age of intended destruction of the Yazidi eighteen. Through the forcible abductions community through forcible transfer of stemming from the August attack on Sinjar, their children is genocide. ISIS terrorists have committed genocide under Article 6(e). They have attempted to F. NOTE ON ACTS OF CULTURAL destroy the Yazidis by kidnapping the GENOCIDE young within the community and molding Acts of cultural genocide include 1) forced them into future jihadis. Forcibly exile of culture-representative individuals, indoctrinating Yazidi boys and using them 2) prohibition of the in as child soldiers not only destroys the private usage, 3) destruction of books or community on an ethno-religious level, but prohibition of publication in the language, also leads to an immense loss of life as 4) destruction or desecration of historical or these children are sent by ISIS leadership religious monuments, and 5) destruction or into firefights with and attacks on their own dispersion of documents and objects having people and other Kurds. historical, artistic, or religious value or The removal of children from one usage. group to another – causing them to lose Acts of cultural genocide represent their identity – has been considered to be human rights issues governed by other genocide by forcible transfer by international legal instruments, such as the governmental bodies faced with the issue International Covenant on Civil and on the national level. In the case of Political Rights (1976), which provides for transferring indigenous children the protection of the rights of minorities to non-indigenous institutions and families, with respect to their language and culture. the Australian Human Rights and Equal It seems impossible to consider acts of

54 ISIS Releases Moms’ Guidebook to Raising ‘Jihadi 55 Australian Human Rights and Equal Opportunity Babies,’ RT (Jan. 1 2015), Commission, ‘Bringing Them Home, Report of the http://rt.com/news/219127-isis-jihadi-baby- National Inquiry into the Separation of Aboriginal guidebook/ (quoting “Sister’s Role in Jihad”). and Torres Straight Islander Children from Their Families’, pp. 270-5.

17 cultural genocide to be punishable crimes Iraqi government’s oppression in Al-Anfal insofar as they are unrelated to physical or – to document these atrocities committed biological genocide. In light of the travaux by ISIS. It is now the obligation of preparatoires, it would be implausible to international state actors to provide both argue a customary norm of international logistical and financial support so that the law can bridge this intentional omission. perpetrators of this genocide can be Thus, the many acts of cultural brought to justice. destruction perpetrated by ISIS fighters can constitute additional evidence of a specific intent to destroy the Yazidis as a group, in whole or in part.56

V. RECOMMENDATIONS The Kurdish Regional Government should exercise its jurisdictional authority to establish a fully hybrid tribunal that complies with international laws and due process norms to enable proper prosecution of the crimes perpetrated by ISIS genocidaires within its territory. Pursuant to the authority conferred to domestic enforcement by the Genocide Convention, Article 6, the Kurdish Regional Government has and should exercise such authority to prosecute the genocide of the Yazidi people in absence of international judicial intervention. The Kurdish Regional Government deserves international assistance and funding in order to continue the documentation of genocide within Kurdistan. Financial, technical, professional, and logistical support to pursue justice for the Yazidi, Kurdish, and Iraqi peoples against the gross atrocity of ISIS genocidaires is needed. Direct participation from neighboring countries in the at-large international community to help establish a prosecutorial tribunal and lend necessary assistance assures the continued ability of the Kurdish and Yazidi people to exist without the threat of wholesale genocide within their towns and villages. Brave local individuals have risked their lives – just like after the

56 See supra Sec. II.E.

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