Global Justice Center Blog

"That's Illegal" Episode 4: Genocide and Justice

Listen to GJC staff and Sareta Ashraph, an internationally-recognized attorney and expert in the field, discuss the ongoing genocide committed by ISIS against the Yazidi in "Genocide and Justice," a two-part epsode of our "That's Illegal!" podcast.  Find us on iTunes and Soundcloud.

 

Transcript: Genocide and Justice, Part 1

STEPHANIE OLSZEWSKI: Welcome to "That's Illegal!" a podcast about international law in the age of nationalism. This podcast is produced by the Global Justice Center or GJC. The Global Justice Center is a legal, human rights non-profit based in New York City. Our work focuses on moving international humanitarian laws from paper to practice. Our staff consists of lawyers with international law expertise who work regularly with partners at the EU and the UN. Given the recent development of countries turning increasingly nationalistic and the rise in global tensions, we thought it would be a good idea to sit down and talk about the importance of international law, why we have it, and why we should implement it. So every week we're going to take a look at the latest news and break down the legality of what happened, using the framework of international law.

This week we'll be discussing the ongoing genocide committed by ISIS against the Yazidis. We'll be speaking to Sareta Ashraph, an internationally-recognized attorney and expert in the field. The discussion will be broken into two parts: the first focusing on the crimes of genocide and the second focusing on the avenues for justice and accountability. This is part one.

SARETA ASHRAPH: My name is Sareta Ashraph. I am the former legal analyst on the UN Commission of Inquiry on Syria, and I am the primary author and researcher on the commission's June 2016 report “They Came to Destroy: ISIS Crimes Against the Yazidis”. I'm a barrister called to the bars of England and Wales, Trinidad and Tobago—which is where I'm from. I specialize in international humanitarian and international criminal law. I've been counsel for the Special Court for Sierra Leone for many years and for the International Criminal Court, and I've worked for a variety of commissions of inquiry, including most recently the Syria commission.

STEPHANIE OLSZEWSKI: To start us off, can you just give us a little bit of background on the start of this genocide? Who the Yazidis are? And why ISIS targeted them?

SARETA ASHRAPH: Sure, key questions. The Yazidis are a religious group, one of the world’s oldest religions. They are based primarily in Northern Iraq, but there are also Yazidi communities in Armenia, Turkey, Iran and now increasingly further afield—such as in Lincoln, Nebraska and in Southern Germany in Stuttgart. The Yazidis are an indigenous religion to the Northern Iraq region; their beliefs and practice spanned thousands of years. They have been historically persecuted because they are not people of the book, which are the three main monotheistic faiths of Islam, Christianity, and Judaism. They do not have a written book, and their religion has shifted over time—as a direct result of persecution. At the moment, their religion contains elements of Zoroastrianism, Islam, Christianity, and even some of the Judaism. But they are a standalone religion.

I can speak a little bit more in detail about what their religious beliefs are. I think what is probably important for people who don't know the Yazidis at all to know is that there is probably only about a million Yazidis in the world. About six hundred fifty thousand of them lived in the Sinjar region, which is where ISIS attacked on the 3rd of August, 2014.

In their mythology, they have a chief angel who represents both good and evil in the world. When viewed through the lens of Christianity or Islam, that figure seems to look like a fallen angel. And for that reason, they have been historically persecuted as being devil worshippers--although that is not what the angel represents to them. The attacks on the Yazidis by ISIS relate to ISIS’ idea to cleanse the region of infidels. The treatment of the Yazidis is very distinct and differs from their treatment, for example, of the Christian groups--which are also terribly treated but not in the same way as the Yazidis are treated.

STEPHANIE OLSZEWSKI: When most people think about genocide, they think about mass killing. But there are other ways to commit genocide. Can you tell us about the law that defines the crime of genocide?

SARETA ASHRAPH: The crime of genocide was first defined by the Convention for the Prevention and Punishment of the Crime of Genocide, which was passed by the United Nations General Assembly in 1948—immediately following the Holocaust at the end of World War II. It defines the crime of genocide as being committed when a person commits a prohibited act with the intent to destroy (in whole or in part) a national, ethnical, racial, or religious group as such. It's delineated along the lines of these protected groups, which you've described. For example, the Cambodian genocide is often referred to as genocide. In fact, the Extraordinary Chambers in the Courts of Cambodia made it very clear that because many of the killings were made to members of political groups or class groups, those wouldn't fall within the definition of genocide. In the second part of the trial, you have genocide charging in relation to the attacks on the Cham Muslims during the Khmer Rouge period and the attacks on the Vietnamese. Those are still being litigated, so we don't have a judgment yet.

As you mentioned, most people think about genocide as being organized mass killings. That’s very much steeped in the images of the Holocaust—for people who may be younger, images of the Rwandan genocide. It's often true that genocide is charged (and genocide is cited) when there have been organized mass killings. That, in fact, is not the definition of genocide.

First of all, genocide is primarily a crime of intent rather than scale. The intent is often what transforms a series of conducts into a genocidal act—the intent to destroy in whole or in part a protected group. The ways in which you seek to destroy these groups are also delineated by the Genocide Convention under the five prohibited acts. Only one of which is killing, in fact. So the first act is killing members of the group, and that's, obviously, the most efficient way to destroy a group—to instantly kill the members. But in no way (and it's quite obvious) the Genocide Convention requires genocide to be committed by killing; it envisages a range of conduct.

The other four acts are non-killing acts: causing serious bodily and mental harm to members of the group, deliberately inflicting conditions of life calculated to bring about this physical destruction in whole or in part, imposing measures intended to prevent births within the group, and forcibly transferring children of the group to another group.

In the case of the Yazidi genocide, the commission found that all five prohibited acts were being committed by ISIS in their attacks on the Yazidis. You will notice here, when we are discussing the prohibited attacks, that there isn't actually mention, for example, of sexual violence in this act. There's no mention of sexual violence anywhere in the Genocide Convention at all. It's not very surprising because the Genocide Convention was in 1948 when there was, in fact, generally less discussion about sexual violence in international instruments. It had an all-male drafting team.

The crime rape, for example, in international law was only defined in the 1998 Akayesu judgment. The Akayesu judgment—when it comes to understanding how genocides may be perpetrated against different people differently—is very instructive. What Akayesu determined was that sexual violence, rape, sexual enslavement, and other forms of sexual violence can be genocidal acts when they're carried out with the requisite intent, which is the intent to destroy the group—a protected group in whole or in part. It's become quite a landmark case in understanding how genocides are committed differently against different people.

STEPHANIE OLSZEWSKI: It is clear that ISIS is specifically targeting the Yazidis for genocide. Can we speak a little bit about the history of that? How they targeted them? And how we know it?

SARETA ASHRAPH: Let's speak a little bit about the attack on the Yazidis and explain how we came to the analysis that resulted in the determination of the crime of genocide. The facts of the attack are relatively agreed upon. In June, 2014, ISIS took over Mosul in Northern Iraq. Prior to that and since June of 2014, they had been in Raqqa, Syria. Those were the two de facto capitals in their so-called caliphate—lying immediately between those is the region of Sinjar.

Once ISIS took over Mosul in June of 2014, it was quite clear that the Sinjar region was endangered, and there had been numerous attacks on the edges of the Sinjar region. ISIS itself was very clear that it considered the Yazidis to be devil worshippers. They didn't belong; they couldn't be inside the caliphate. The caliphate had to be purified. None of that was tremendously surprising to the Yazidis. The Yazidis at the time were protected by the Peshmerga, which is the Iraqi Kurdish force.

On the morning of the attack the 3rd of August, 2014 and the early hours, ISIS fighters left their bases in Iraq, Mosul, Tal Afar, and in other villages further to the south of the Sinjar region—but also from their bases in Syria. They converged on the Sinjar region, which is several hundred square kilometers. It is separated by 100 kilometers long mountain range called Mount Sinjar, and there are villages both to the north and to the south. So we're talking about three to four hundred villages. The majority of them are the Yazidis. There are, in fact, several different communities that live in those villages, including Sunni Muslim communities. Some of the villages are entirely Yazidi, but the town of Sinjar, for example, was much more mixed.

ISIS entered the villages, and what was immediately noticeable is that their conduct on coming into contact with the Yazidis was replicated throughout every individual conduct. You had people who were hundreds of miles apart on either side of a mountain range in every village that ISIS came into. Every time they stopped a Yazidi family who was trying to flee in the road, you had an exact pattern of conduct, which is being replicated over and over again. Immediately after ISIS started attacking the Yazidis, what happened to them depended on what group they fell into. If they were closest to the Kurdish regions of Iraq and they were able to flee, they fled immediately and became internally displaced people—mainly in the Dohuk region and now increasingly further afield.

Another group of the Yazidis wasn’t close enough to get into the Kurdish regions but was close enough to flee to Mount Sinjar, which has historically been a place of safety. There are, in fact, Yazidi temples on Mount Sinjar, and they fled up to the top of the mountain. Those Yazidis were immediately encircled by ISIS who cut off all the water supplies at the bases of the mountain. Hundreds of Yazidis died on the mountain before they were rescued in about 12 to 14 days later. Most of those that died were very young children and infants—simply because we’re talking about being on top of a very tall mountain, with very little coverage, and no water sources in Iraq in August. The temperature was about 110 degrees Fahrenheit (around 50 degrees Celsius).

The reason the Yazidis who survived were rescued off the mountain is really two things: one is that there was a request to start airstrikes, which came from the Iraqi government; US President Obama released a statement on the 7th of August, 2014—which is only three to four days after the initial attack when it was really unclear as to what was happening on the ground. There had been attacks; there were news of killings. There were no reports yet of sexual enslavement. In his statement, which the White House released, he made explicit reference to the risk of genocide occurring. It was quite clear the US decided to launch its airstrikes and had an eye to its obligations under the Genocide Convention.

On the ground, you had Yazidi men who were trying to—with very light arms—help Kurdish forces coming in from Syria open up a humanitarian corridor. So you had the YPG (the People's Protection Units) who are the Syrian Kurdish forces fighting from inside Syria, creating a humanitarian corridor that was about 12 kilometers long and about three to five kilometers wide. Through that corridor, they evacuated most of the Yazidis—thousands of the Yazidis off the mountain down into Syria. Some remained in Syria and the others went back into the Kurdish area of Iraq and again into internally displaced people's camps.

Those Yazidis who didn't make it to the mountain and who weren't close enough to the Kurdish regions to flee found themselves encircled by ISIS. The crimes that were committed against them—and in many cases are still being committed against them—depended primarily on the sex of the victim, the gender of the victim, and, secondarily, on the age of victim. For that reason the Yazidi, genocide is really instrumental in understanding the role that gender plays in the crime of genocide.

I'll talk a little about the crimes and then we'll talk about the intent, which is what really transforms the acts into genocidal acts. ISIS fighters—when they enter the villages or when they stop Yazidis who were fleeing in their cars or by foot—immediately separated the men from the women. By men I would also include boys, any boy who is over the age of about 12. The way they determine whether the boys were over 12 or not varied from group to group. In some cases, they looked at height; sometimes, they made the boys lift their arms to see that they had hair under their arms. But in any case, the men and the older boys, say adolescent boys, were separated from the women and girls; in some cases, they were immediately killed. That sometimes happened in front of the women and girls—usually by being shot in the head. In a couple of instances in the Sinjar town, you had people whose throats had been cut. In some instances, the women and girls who survived and who were interviewed said that they heard them take the men away. They heard the sounds of gunshots, and they saw the ISIS fighters come back with bloodstains on them. They never heard from their husbands, sons, brothers, and uncles again.

In some cases, some of the men and boys were told that they could escape immediate execution by converting to ISIS’ understanding of Islam and Islam as interpreted by ISIS. Some of them did that, of course, because I think that's kind of a very rational choice if someone is pointing a gun to the back of your head. For those men who converted and boys who converted, a slightly more complicated picture arose because there was a question in the ISIS ideology as to whether the Yazidis could convert. ISIS was never really comfortable with idea of Yazidi conversions. So the men and boys who were converted were taken to a series of what are commonly referred to as the Shia villages—although the Shia community who had lived there had fled in advance of ISIS coming in very wisely.

So the villages were empty. The Yazidis who had converted were kept there; in some cases, their women and children who were also brought back to them had to convert as well and were kept in these villages. They were treated neither fully as Yazidis nor fully as Muslims—while ISIS is trying to figure out what their status was. For example, the women didn't cover; the women were never made to cover, which is unheard of in ISIS territory. That was partly because they didn't want to give them a chance to escape, so they wouldn’t be able to disguise themselves. If you're a woman and you're not covered, you're not getting very far in ISIS controlled territory—no matter what.

In the case of the men, they were forced to go to mosque and pray. But they also weren't allowed to walk around freely. They were taken, essentially, almost as forced labor out of the villages and made to dig trenches or build buildings. They were not treated as equal Muslims.

By the spring of 2015, so about six months later, ISIS obviously reached a decision that these conversions were not real conversions. It appears that two things have motivated that: first was the fact that several of them escaped or tried to escape. They thought that well you're clearly not dedicated to our ideology if you're trying to run away from us. The second was that the Peshmerga forces started to encroach on ISIS; they started to fight back and reclaim territory. The view of some of the ISIS fighters—as we could discern from comments that they made to the Yazidis who were held in the villages—was that they suspected the Yazidis of calling them, telling them where they were, telling them where to attack, and that the Peshmerga were coming to rescue them. Neither of which, I think, was true. But this was the level of paranoia of ISIS.

In the late April or early May 2014, the villages where the Yazidis lived in (what were commonly referred to as the Shia villages) were emptied, and the men and the women were separated at that time. The men and boys were taken away, and the women and girls were sold into sexual slavery; they became part of ISIS’ system of sexual enslavement. Nothing has really been heard of the men and boys of the time, so it's theoretically possible that they could have survived if they had managed to fake their way into ISIS believing that they were ISIS believers. But I think it's generally seen that the more likely consequence of that separation is that they were then killed on those dates.

The women and girls had a very different experience of what happened in the immediate aftermath—after many women and girls saw their male relatives being taken away (bearing in mind these were scenes of complete terror with younger boys trying to cling onto their mothers). In most wars and in most genocide situations, people will notice separation of men and boys as the prelude to something quite terrible. You can see that in the descriptions from Rwanda and the tribunals, the ICTR or Srebrenica, for example, the genocide starting with separation of men and boys.

The women and girls were then taken to a separate holding site in different areas. You had primary holding sites in the Sinjar region, which were usually quite small and where people from the villages were taken. So for example, in the Kocho village—which is where Nadia Murad, the UN Goodwill Ambassador, is from—they were all taken to the school initially and then taken elsewhere. That was really a grouping process. From the primary holding site, they were taken to the secondary holding sites. So you had large buses and large trucks come in as the women and children were put onto the trucks and sent to designated holding sites. Those holding sites included: Badush prison, which is just outside of Mosul, a variety of large halls inside Mosul such as Galaxy Wedding Hall, a large number of schools in Tal Afar, and some houses in the Al Hadbaa neighborhood of Mosul as well.

It’s important that we know a little bit about these sites because you're talking about moving thousands of people at this stage; this is not a minor operation of one village. This is 400 villages. Thousands of people have been killed—even more have fled. You now have a captive group of, essentially, women and young children who need to move around. It was quite clear that this was preplanned. They already had places for them to go; they knew how to get them there; they had large number of vehicles. Although in some cases, they also took the Yazidis’ cars and used those cars to take these women off to the holding sites.

It's also relevant that no other group that was living inside the Sinjar region (same as the Yazidis were living in) went through this treatment. For example, some Sunni Muslims who fled were allowed to pass through checkpoints and were able to repeat the Koran. The fact that this is very much focused on the Yazidis is also relevant. There were no military objectives in Sinjar at the time. Although the Peshmerga had been there before ISIS arrived, they largely withdrew. There were a few fights, but largely the Peshmerga withdrew. So there was actually no military objective during that time.

For the women and girls, once they move to the secondary holding sites, they were kept there sometimes for a couple of days and sometimes a bit longer. The majority of them were registered at those holding sites. You had members of ISIS fighting forces coming in and taking their photographs, taking their ages, whether they were married or not—which is, basically, saying whether they were virgins or not. If they were married, how many children they had. It’s a system of really trying to determine their desirability and, therefore, to price them.

At the holding sites, it's important to note that we didn't have evidence of mass rapes. You had thousands of women and girls at some sites and hundreds at others. While there were certainly instances of rape at the holding sites, they were seen as being rather surreptitious by young fighters who didn't want their commanders to find out what they were doing. It’s important to understand that because this wasn't an instance of mob violence; this was something that was clearly planned and had a huge amount of restraint in it in some ways.

The women, once they had been moved into the holding sites, were no longer people to ISIS fighters. They were products; they were things with a value, and that value is diminished by rape. Also, as a result of being possessions, they are possessed by someone or by some entity. In the case of the Yazidis, they were now the property of the Islamic State. Therefore, unless the Islamic State gave you a woman, you bought a woman from Islamic State, or it was some process of transfer of property, you cannot then take that woman for yourself.

You have thousands of women encircled by relatively young man, junior ISIS fighters probably in the ages of 20 to 32. Yet such is the grip of ISIS ideology on the fighters and the extent of the control of the fighters by the organization that you don't have this mass rape of women—not out of respect for the women but out of respect for the organization's property rights.

Those women started to be transferred within a fairly short period of time to different ISIS sites around Iraq and Syria. Syria Commission noted the first transfer was around the 17th of August, 2014, so two weeks afterwards. Our view was that there were more likely transfers before then. But that's the first time when we charted a woman being, essentially, bust into Raqqa, Syria. Women were bust in ISIS-controlled territory. About 80% of the women were taken for sale to individual ISIS fighters and 20% were kept for ISIS themselves and sent to military bases.

If you look at the ones that were sent to be sold (the majority of them were sent to be sold), they were sold in three ways. The first way was through slave markets, which I think has received the most attention in the press. Although, I think, the majority of them weren't sold in slave markets. What we saw was slave markets as a room somewhere where they go in, and they're forced to unveil, walk around the room, and men bid on them. There are series of ISIS documents—which are very regulated—saying this is the date by which you have to register for the slave market and these are the rules of how the slave market operates. If you aren't registered, you can't come. If you bid and you have the winning bid, you have to buy and so on.

We saw a number of women who were initially transferred from the property of the Islamic State to being property of ISIS fighters. Because they were spoils of war, they can't be sold to a civilian in ISIS controlled territory. The ownership of the woman circulates between ISIS fighters. Women were generally sold depending on how old they were, if they were married or not, if they had kids or not—anywhere between about 300 dollars and maybe up to 2000 dollars. It's a bit unclear because a lot of the women weren't exactly present at the sale and had no say no how much was paid for them. This is generally what we understand from some of the online auctions. A second way that you have women being sold is one-to-one. ISIS fighters often come to the holding sites; in some cases, they will show up at Galaxy Wedding Hall in Mosul, have a look at the women, and select the women that they wanted.

Later on, you saw the sale of women through online apps such as telegram, which are encrypted. As women were passed from one ISIS prison to another, the prices varied. I spoke to one woman who'd been sold 15 times in a year and a half. It was a complete acceptance of the right to own another person, to treat the other person as they wanted to—which included severe beatings, denial of food, being forced to live in unheated rooms in the winter, and, of course, a tremendous amount of sexual violence and rape.

AKILA RADHAKRISHNAN: Some of this was enshrined in documents, right? So it wasn't just that the conduct was being given down by oral orders. ISIS’ central hierarchy was putting together human aid documents and other types of religious guidance to say that this is how you treat them. These were some of the rituals that are involved. They had rules around contraception: if she might be pregnant, you weren't supposed to do x, y, z. They ritualized a lot of that through a central hierarchy.

STEPHANIE OLSZEWSKI: That was just for the Yazidi women?

SARETA ASHRAPH: Well, for slaves. The Yazidi women were treated that way because they weren't people of the book. If there had been other religious communities in that area that were also not people the book, they would have been treated as the Yazidis are being treated by ISIS. Their idea of how to treat the Yazidis is not random; it's gleaned from what their so-called religious scholars go into the depths of the Hadith and history. They say that this is how people treated this group of people in the seventh century, for example, at the time of the prophet.

In their magazine Dabiq, shortly after the Sinjar attack, they published an article called “The Revival of Slavery Before the Hour” involved in a discussion about whether the Yazidis are apostates that need to be killed immediately, whether they can convert, how you treat them, and what's available to them. So for example, the Christian community pays what’s called the jizya taxes, and they still live as Christians in ISIS controlled territory—which is not to say that it's very easy to live as a Christian. The Christian community is very small because most of them have fled. They live under constant danger. They're persecuted in the ISIS territory. But it is theoretically possible, and there are, in fact, Christians (few of them) living in an ISIS controlled territory. It is absolutely impossible to be Yazidi and live in ISIS controlled territory as a Yazidi.

AKILA RADHAKRISHNAN: The article even said that upon Judgment Day, one of the things that will be looked at for Muslims is them allowing the Yazidi to continue—because they're devil worshippers. Even the ideas of destruction are very clearly stated by ISIS in these publications.

SARETA ASHRAPH: I'm going to go back to the crimes, and then I'll speak to you about why it is actually not as difficult in this case to determine genocide than it had been in an earlier genocide. So for the women, you have rape, sexual enslavement, a lot of beatings at the homes, and the ISIS fighters forcing them to live in conditions in which it is very difficult to survive. They're also not allowed to sell the Yazidis back to their families. The Yazidi women have to circulate within the ISIS controlled fighters—in theory.

I think people often say that they've been released; they haven't been released. In fact, they've been sold back. Although the price for the Yazidi women and girls (we're talking about really anyone over the age 9 is being sold) is about two hundred to two thousand internally—with that price always going down of course—when you sell them back to their families, they'll pay you know anywhere between 10,000 and 40,000 US dollars to retrieve their family members from the men who are raping them and sexually enslaving them. So you have a situation where the Yazidi families are going broke by selling everything they have to buy back their female relatives and children (if they’re still there). That’s why we have so many Yazidi women being released.

It’s also important to note how regimented the system is. There's one account in an interview that I constantly think of. I was interviewing this woman, and she'd been sold several times. In this particular time, the man who owned her and who'd bought her at the time had gone off to fight. So he left her with his friend because the Yazidi women can't go out in the street alone. They're not covered. If he'd left her the house alone, she would have then starved. He gave her to his friend, also an ISIS fighter, to take care of her for a while. During the time that he went off to battle, he was killed. At this time my assumption was that his friend had kept her, and his friend had then continued with the abuse that she had suffered. She said, “No, no. I didn't stay with his friend, and his friend didn't do anything to me because I didn't belong to his friend.” He died intestate, so his friend could only have kept me if he had made a will (so his friend could have inherited me or if he'd given to me his friend as a gift). But he only gave me to his friend for safekeeping. The friend didn't do anything to me while I was in the house—even though we're in the house alone.

When we realized that her owner (for lack of a better word) had died, the other ISIS fighter who had been entrusted with her relative care then took her to the local Wali, a local authority, and said that she has now reverted to being property of the Islamic State. So you're now in charge of reselling her. That is exactly how disturbing but also highly regulated and bureaucratic this system is.

Many of the women, of course, are profoundly traumatized in a way that I think is probably difficult to put into words for a lawyer. In relation to other groups who had children, girls who are below the age of nine and boys below the age of seven are sold with their mothers in the package; ISIS doesn't divide them. If you're a girl under the age of nine or boy under the age of seven, you travel around and are bought and sold with your mother. Of course, those children are also severely traumatized because they're in houses where sometimes they're beaten and shouted at; they live with the families of ISIS fighters, and those families mistreat them. The older children are really aware of the violence that their mothers are suffering. We saw a lot of really traumatized children as we were doing the interview for the report.

Girl over the age of 9 (or once they are 9) are taken from their mothers and sold off in the system of sexual enslavement. Boys who are over the age of 7 are taken from their mother. From the beginning, if you were under about 12, you weren't taken off with your father and executed. If you were above the age of 7, you were taken from your mother at the holding sites and then sent off to an ISIS training camp. It's important to know that these training camps have both Sunni Muslim boys and the Yazidi boys.

They function at two levels. On the first level, they meet ISIS needs for continual recruitment and for the continuation of its caliphate—through the indoctrination of children, young boys. That is true whether the boys are taken from a Sunni Muslim family by force or taken from the Yazidis from Sinjar and taken off the bases. On another level, which is specifically directed towards the Yazidis alone, it's a process of removing them from their culture and from their families, of erasing their identity abuses, and indoctrinating them in ISIS inspired understanding of the world. Their Yazidi names are taken from them. They are given Muslim names. They have to take the so-called ideology classes. They're taught that the Yazidis are unclean, dirty and are people who worship stones.

It's quite difficult to get the boys back who've gone to the training camps because there is no market to sell them back. They never become property of individual fighters; they remain property of the Islamic State as an entity, and the Islamic State doesn't sell the Yazidis back. When some boys have been brought back, have been rescued, or have been sold back in particular circumstances, you have boys who really suffer the after-effects of indoctrination by ISIS fighters—including a preoccupation with looking at battles, being shown videos of beheadings, and a tendency towards violence. So there's also a tremendous problem within the Yazidi community now.

AKILA RADHAKRISHNAN: This is also where it's important that the Yazidis don't have a book. It's an oral tradition, right? Everything is passed down through the community and familial relations. When you separate the boys and you take them through this process (even if they are released), it is difficult to then continue to pass it on, especially as the Yazidi community—as a result of this genocide—has grown smaller and smaller. That’s a very important part when we think about the genocide. Also, why is it that keeping the boys and keeping them away from the teachings and the community really makes a difference here? There's no written book; there’s no nothing.

SARETA ASHRAPH: Speaking about all these acts—which may constitute war crimes or may constitute crimes against humanity. Why they’re also considered to be a genocide comes from the intent and the theory behind it, which drove ISIS to commit these acts in particular ways. In most instances, it is one of those tricky things for lawyers and later for courts do is to work out whether there is intent to destroy. People often say that they were a political enemy or they were fighting back, and this is just what happens in war, it was all chaotic, and so on. In the case of ISIS, it has never really shown any desire to reframe or hide its conduct whatsoever. It has been very clear and has states in multiple times that it doesn’t believe the Yazidis have the right to exist. It doesn’t believe Yazidism has the right to exist. They are an impure force within the region, and they need to be destroyed for the betterment of everyone—in particular the caliphate. So ISIS is really clear about its conduct, and why it’s doing it.

I think it’s also true that ISIS conduct doesn’t come out of nowhere. As I said in the beginning, the Yazidis have historically been persecuted. They are often known as being devil worshippers in the communities that they are in. They are regarded with suspicion. Often they have fewer educational advantages, which is very relevant when you have a situation where a lot of men have been killed, and the majority of their population is now female who haven’t spent a lot of time in school and haven’t worked. The impact of the genocide reverberates through the social structures in which it takes place. ISIS has been unabashed in their voicing of the intent to destroy the Yazidis. Normally, you have to look through circumstantial evidence and infer it from conduct. With ISIS, there are a lot of very straight forward statements.

STEPHANIE OLSZEWSKI: You mentioned contraception, so can we talk a little bit about the use of forced pregnancy? How they are treating the Yazidi women in terms of births?

SARETA ASHRAPH: There are a variety of ISIS rules around the sexual enslavement process and the mechanisms by which sexual enslavement is regulated. There are a couple of different rules, such as you can’t sell between brothers and you can’t sell when the woman is pregnant. So you shouldn’t really sell a woman for a month to see whether she is pregnant or not. Most of those rules actually (once you start selling them from the entity to the fighters) are broken.

When it comes to contraception, it’s a mixed picture. It’s quite clear that some ISIS fighters are using contraception, including condoms. But there are a lot of forced injections and forced pill taking for the women—sometimes not so forced. That’s really done because they don’t want to lower the resale price for the woman. If you wonder if she’s pregnant or not, and you sell her anyway, then it’ll be a much lower price.

In the ISIS article in Dabiq magazine, there is a specific reference to the slave giving birth to her master and the idea that if she gets pregnant the baby who is born will be ISIS and, therefore, the master of the woman who is Yazidi. There has been some (in the ISIS organization rather than individual fighters) movement toward saying that this will give an option for more ISIS fighters to be born. I would be very reluctant to say that there is any sort of program—either around forced contraception or unforced pregnancies—only because the behavior of those fighters (once they own the woman) has been so mixed. I think what is really key for ISIS is that the women stay within ISIS control. They live in ISIS control, and they will die in ISIS control. ISIS has shown a real willingness to try and hunt down fighters who are selling them back to their families. That in itself is punishable by death in ISIS controlled territories.

AKILA RADHAKRISHNAN: Another thing, I think—in respect to the pregnancies—is that in one context, they may become ISIS fighters. In another context, because of the patrilineal structure of the Yazidi religion, if both parents aren’t Yazidi, then the child can’t be Yazidi. So even if the mother and the child are rescued, that child, in the religion, is not considered to be Yazidi. They’ve already, in that way, destroyed the possibility of having a future generation of Yazidi children.

SARETA ASHRAPH: That’s, in fact, the way that we found that the fourth element in the prohibited acts has been committed; the fourth element is preventing births within the group. During the Holocaust, there was a lot of forced sterilization of Jewish women. That hasn’t occurred here. What we saw was the separation of Yazidi men and Yazidi women, bearing in mind that both parents have to be Yazidi, as Akila said, for the child to be Yazidi. The very act of separating the men from the women is already enough to fulfill that prohibited act. That separation is made permanent by killing. You also have now a situation where the woman is impregnated by someone from another group; that child will not be Yazidi.

In fact, the extent and the severity of the sexual violence and the dehumanizing aspect of being treated as property to be sold, loaned, owned, and inherited (which is I think extra traumatizing besides the rapes that are horrifically traumatic) means that some women really don’t want to have children. They don’t want to enter into relationships with men; they don’t want to have that in their lives. So it’s one way of also preventing births in the groups: to traumatize the women so much and to psychologically and physically damage them to the extent where they do not want to have children, raise children, and they don’t want to be in a relationship with men.

STEPHANIE OLSZEWSKI: Thank you for joining us and join us next week for more discussion with Sareta Ashraph on the Yazidi genocide and the avenues for justice and accountability.

Transcript: Genocide and Justice, Part 2

STEPHANIE OLSZEWSKI: Welcome to "That's Illegal!" a podcast about international law in the age of nationalism. This podcast is produced by the Global Justice Center or GJC. The Global Justice Center is a legal, human rights non-profit based in New York City. Our work focuses on moving international humanitarian laws from paper to practice. Our staff consists of lawyers with international law expertise who work regularly with partners at the EU and the UN. Given the recent development of countries turning increasingly nationalistic and the rise in global tensions, we thought it would be a good idea to sit down and talk about the importance of international law, why we have it, and why we should implement it. So every week we're going to take a look at the latest news and break down the legality of what happened, using the framework of international law.

This is part two of our two-part series on the genocide ISIS is committing against the Yazidis. We are speaking with Sareta Ashraph, an internationally-recognized lawyer and expert in the field. This week we'll be discussing justice and accountability.

Do you want to begin with Rwanda and the successful prosecutions of rape as genocide?

SARETA ASHRAPH: When you speak about successful prosecutions of rape as an act of genocide, you will always start with the Akayesu case; it’s the case that determined that rape could be a genocidal act. There was a certain amount of concern in some of the writings that followed Akayesu. You were looking at women as a vessel for an attack against a group—since genocide is an attack against a group, rather than an individual, even in the definition of the crime. The Akayesu judgment’s wording was very delicately and very thoughtfully done. It spoke about sexual violence as an integral part of the destruction of the individual and of the group, not necessarily prioritizing the group over the individual.

To put the Akayesu judgment in context: in April of 1994, President Habyarimana’s plane went down as he was returning from Tanzania back to Rwanda. This was an event that kicked off the Rwandan genocide—although it's very well-documented that the beginning of genocide extended far beyond the plane crash. Immediately after the plane crash happened, checkpoints were set up, people had lists of people that they wanted to kill, and people were exhorted to cut down the tall grass, which is the code of killing Tutsis by Hutus. There had been a process of indoctrination of the society to accept this level of killing. Because societies are not naturally genocidal, you need to inculcate within the community that this is something they need to do for the betterment of the community, that these people are a problem in the community, and that everything will be better once they're gone.

Rwanda was the world's fastest episode of mass killing. They killed people at a faster rate than the Holocaust—with a million killed in 100 days. Aside from that, rape was ubiquitous in Rwanda. “It was not an exception; it was the rule,” I think, was what one of the rapporteur said. In the aftermath of the genocide, you had a situation where you had a country of women, showing that it was men and boys who were disproportionately targeted for killings.

“Shattered Lives,” a Human Rights Watch Rwanda's 1996 report, said that Rwanda is now a country of women. The number of men being killed drastically affected the sex ratio of the country so much that 69 percent of the people who survived were women at the time. Of those women, a large number of them actually had suffered rapes, and many had now contracted sexually transmitted diseases, including HIV. The killings of the Rwandan genocide as a result of rapes continued for years and years after the genocide had ended.

Tutsi women and girls had been targeted by the Interahamwe and proponents of the Hutu Power. That’s not surprising. In the Hutu Power ideology, Tutsi women were seen as very duplicitous but also very beautiful and very charming. There has been a whole mythology that had developed around the role of Tutsi women as being charming but very deceptive and also very arrogant (because they were also so beautiful). There was an element of striking back at the Tutsi woman figure, of belittling them, and of taking them down to size.

You had mass rapes in the Rwandan genocide, followed by killing. It became integral to the prosecution of the conflict—not just to sideline rapes as crimes against humanity and war crimes, which they were—but to say: how did this sexual violence fit within the continuum of genocidal violence? How is genocide being perpetrated in ways that don't involve killing? Rather than saying let's focus on killings that disproportionately affect men and boys and sexual violence that disproportionately affects women and girls, we’ll hive off and say that this is its own thing.

The Akayesu judgment is the first case to say that let's understand how this genocide has been perpetrated. Let's not just focus on the killings but explore what happened in this genocide, and how it was being committed. Part of that was receiving a lot of evidence about rape and other forms of sexual violence in horrific ways of mutilations and sexual torture. Looking at how this fits into genocide was predominantly done through a second limb of the prohibited acts, which is causing serious bodily and mental harm.

What the Trial Chamber (and then as confirmed by the Appeals Chamber) found in Akayesu was that rape and other forms of sexual violence form part of causing serious bodily and mental harm to women, to the victims. Of course, you can extend from that the fact that the trauma of rape prevents births from within the group and so on—predominantly through serious bodily a mental harm.

I think that a lot of progress was made in Akayesu. But if you look at the continuing jurisprudence of the ICTR after Akayesu, it was never as progressive as Akayesu. If you look at the Nyiramasuhuko case, you have a situation with the chambers saying, “Look, we have a lot of information about rape, we have ordering of rapes, but the prosecution hasn't pled that as genocide.” The prosecutor chose to plead it as crimes against humanity. You can see in the judgment that they would likely have found it to be a genocidal act, but it was never indicted on that basis. They said that because of the way it was indicted, we cannot consider it as part of the crime of genocide.

The problems of recognizing rape and sexual violence as genocidal acts continue to this day. You see it now with how the reporting on the Yazidis has been done. If you look at how most reporting on the Yazidis has been done, you have a tremendous number of news articles about rape, sexual violence, and sexual enslavement. In a way, I think, this focus on sexual enslavement is disturbing. They're very focused on it as a crime just by itself. It is clearly a crime by itself, but there is no attempt to look at how women and girls are treated during a genocidal campaign as being part of a genocidal campaign. That’s something that continues to be brought up again and again. Although Akayesu is always cited in articles about rape as an act of genocide, and there's a lot of discussion of genocide in Akayesu, referring to it as a landmark case, it hasn't really taken root in jurisprudence in the way that you'd expect—given the amount of times it’s cited and referred to by jurists.

AKILA RADHAKRISHNAN: Since Rwanda, we've also had limited prosecutions of genocide. We’ve had an ongoing genocide in Sudan for quite a period of time. We've had arrest warrants, but there haven't really been any prosecutions for what's happened there. Bashir is still out on an arrest warrant, traveling around the world and meeting with world leaders with complete impunity.

In terms of carrying it forward, there is also some limited consideration at the tribunal for Yugoslavia. Even then, a lot of it focused on the acts that were related to what happened to the men and the boys—with the transfer and the killing of the men and the boys. Again, there was a gendered way in which the genocide was carried out, but there haven’t been a lot of tests of what Akayesu put out there.

SARETA ASHRAPH: I think a lot of that is, in a way, the prosecution’s decision. It's not either-or. You can prosecute rape as a genocidal act and as a part of forming your case of genocide—as well as it being crimes humanity and war crime, which is, in fact, what happened in Akayesu. But that wasn't followed in Nyiramasuhuko.

Some cases, such as in the Balkans, didn't attempt to put sexual violence in the framework of genocide. Because you can't go behind the prosecutors’ discussions, it's not clear if they thought, “Oh, we're not going to get to the intent. This case is weak.” Or if it's just a prosecutor's decision that crimes against humanity and war crimes were sufficient—even though there were large scale rapes going on. When you have large scale killings of men and boys in a context where it's one group attacking another group, there doesn't seem to be that lack of clarity when it comes to charging. There is not such breaking in charging genocide when it comes to killings.

AKILA RADHAKRISHNAN: I would also say, as Sareta mentioned, President Obama in August (when they did the initial airstrikes on Sinjar mountain) mentioned prevention of genocide. In March of 2015, John Kerry recognized genocide. However, there are plenty of advocates and human rights scholars who've talked about what's happening to the Yazidis in terms of genocide. But, officially, not a lot of people have talked about this genocide.

One thing that, I think, ties into the gender component is that those who are being subject to the ongoing crimes are still women. There is a dimension of failing to recognize the non-killing crimes that are carried out against women as genocide because of this focus on mass killing. It’s not only in justice and accountability where we see this problem; also, we see it in terms of recognition, because there are very strong legal obligations that are attached to recognition of genocide.

When you know a serious risk of genocide is going on, everybody in the world—not just Iraq or Syria because it's happening on their territory—has legal obligations to do something about it. What we have right now is an ongoing genocide where the primary victims continue to be women and girls, and we have no action.

STEPHANIE OLSZEWSKI: That’s what my next question was: what is the international community doing about this genocide? What are they not doing?

SARETA ASHRAPH: President Obama's statement on the 4th of August is the only statement that says that we are taking this particular action due to a risk of genocide; and that action is  limited airstrikes on Sinjar region, which, to be fair, saved tens of thousands of lives. But they did nothing to save the Yazidis who were on the ground, who didn't get to the mountains, who didn't get to Dohuk, who were captured by ISIS, held by ISIS in various locations, and are still circulating. In case of the Yazidis, it is estimated that over 3,000 women and children are still being sold and bought in ISIS-controlled territory today.

In relation to action to prevent that from happening, nothing is happening. There was a period of upset in the Yazidi community (beyond the now quite high level of general distress, of course) when a young Swedish girl decided that she would follow her boyfriend, who had gone off to join ISIS in Mosul. She said, “I really love this boy, and I’m moving to Mosul.” She moved to Mosul and realized this was not for her. This was not a good place to be.

AKILA RADHAKRISHNAN: It wasn't what she expected. Living in ISIS control wasn't what she expected.

SARETA ASHRAPH: Yes, it wasn’t. He wasn't as charming as he had been in Sweden. The Americans went in and rescued her. It caused a lot of consternation and distress amongst the Yazidi community that had thousands of women and girls who had been captured and taken off the Sinjar region, who were raped on a daily basis and beaten, and whose children were taken away from them. Nothing was being done. To this day, there have been no rescues. The only rescues that there have been were through actions of the Yazidi community—through smuggling networks to try to get these women out. You have the Yazidis (who are not getting any help when it comes to rescuing or retrieving women) trying to do as much as they can by selling property and taking enormous risks to try and bring people back.

What the international community has really done is predominately two things. The first is funding a lot of support services within the community—not enough—but, certainly, there's psychosocial support, skills training, and so on. Germany, I think, has been particularly notable in its support and rehabilitation of Yazidi women—including through a trauma program that brought Yazidi women and children into Southern Germany, not as refugees but provided them with papers and set them on long-term therapy. This is a very small number of women but a tremendous thing for this country to have done. There are programs on the ground as well.

The second thing that you're seeing is the funding of documentation organizations. That has been, in my personal opinion, a mixed bag. What we have here is that there has been no referral to justice for the Yazidis victims. There is no referral to the International Criminal Court, because you can't refer just ISIS, and you can't refer just the Yazidi victims. You have to refer the situation in Syria and Iraq. That has not gone through the Security Council. There's only been one attempt to refer the situation in Syria, and that was already vetoed.

STEPHANIE OLSZEWSKI: Could you explain why you would have to refer the situation as a whole?

SARETA ASHRAPH:  Under the Rome Statute, you can't hive off certain groups. You couldn't say that we are going to refer only crimes by ISIS to the Security Council, or we're only going to refer crimes against the Yazidis to the ICC. You have to refer the entirety of the crimes committed in the country, and the prosecutor will make decisions about how she would like to indict and what cases she's going to follow up with in that situation.

AKILA RADHAKRISHNAN: This is important, because Iraqi security forces and the Peshmerga have been involved in the commission of crimes—as they conduct their own offensives against ISIS in these regions. There is a real fear of the Iraqi government that any sort of referral would also open them up to accountability. In the context of Iraq and Syria, it is slightly different. In terms of Iraq, a lot of the members of the Security Council have strong ties to Iraq. Iraq has expressed serious desire not to be referred, because it could open them up to accountability. On the Syrian side, it’s been Russia.

SARETA ASHRAPH:  And open the Americans up to accountability.

AKILA RADHAKRISHNAN: Yes, of course.

SARETA ASHRAPH:  On the Syrian side, you have, for example, Russia who, initially, was very strongly in support of Assad. It’s now being complicated by fact that there are Russian planes flying over in the Syrian skies. The fact that the wars have involved a multiplicity of actors (both national and international) has meant that there are many more obstacles to referrals for justice through the Security Council.

There have been discussions about setting up an ad hoc tribunal, similar to the ICTY and ICTR. I find it quite interesting how international justice works. Everyone was very gung ho on these ad hoc tribunals in the 90s. It turned out that they were horrifically expensive and wasteful. So there was a movement away from ad hoc tribunals into the hybrid tribunal, such as Special Court for Sierra Leone or the ECCC.

Now we're back to discussing how we're not having a path to justice through the ICC and how can we get it. We want to look at, perhaps, having something for ISIS, which is tremendously difficult in itself—although you can understand why the Yazidis might support it. It's very difficult to say to all of the victims that you won't have justice, but if you’re a victim of ISIS, you will have justice. I think it's unhelpful on many levels, including in terms of messaging on accountability.

AKILA RADHAKRISHNAN: A lot of what's been happening predates the conflict with ISIS. The treatment of the Yazidi is not something that ISIS came up with; the Yazidis have been persecuted in that region of Iraq for a very long time. There is already a lot of distrust of Iraqi forces. There’ve already been atrocities committed against them. There’ve been atrocities committed against other minority populations in the region by Iraqi forces, Kurdish forces, and by ISIS. In order to move forward from the conflict, it can't just be about ISIS whom everybody hates and who, can you agree on, should be prosecuted. If the idea of justice is to help the community come back together and heal, then you have to ensure that you address some of the underlying and root causes that predated conflict in the first place.

SARETA ASHRAPH: We’re talking about documentation as in saying that those states are funding a lot of documentation. In fact, I feel like that documentation should be done by the ICC; it shouldn't be that the international community doesn't really know what it can do, able to do, and willing to do. Therefore, we're going to devolve some of those responsibilities to the groups that we will fund. That’s kind of understandable (given the constraints) but I don't think it's ultimately going to be as helpful as people hope it will be.

AKILA RADHAKRISHNAN:  Especially because it’s legal evidence, and legal evidence has to be collected in a certain way. There has to be certain rules around chain of custody, how the questions are asked, and how it's preserved. In terms of being able to use it later in a court of law, you need to make sure that any documentation that's being done is not just being done for the purposes of writing a report—which is helpful in terms of exposing atrocities but not necessarily useful in the context of justice.

SARETA ASHRAPH: What we have now is the Yazidi community that has suffered tremendously, has fought to maintain its sense of cohesion and to protect its existence by, for example, having a tremendous emphasis on acceptance of the women (who have been sexually enslaved) who are coming back. That is difficult for a society that is based on notions of honor, centering on control of female sexuality. The Yazidis’ religious authority says that this is not the women's fault. They were attacked because they were Yazidis and not because of anything that they did. They should be embraced. There is a ceremony for the women who have returned.

That has been quite impressive, but, I think, a lot of responsibility is placed on the Yazidi community to take care of their own, to set up and then run projects for psychosocial support, to do documentation, to constantly go out and speak every day and every chance they get about what is happening to them. You see that in the case of Nadia Murad, a very impressive young woman. She was in her late teens when she was taken and enslaved. She managed to escape with the help of a Muslim family into the Dohuk region and has now become a spokesperson; she is the face and the voice of the Yazidi genocide. She is going out every day to universities, the UN, and conferences to meet foreign ministers where she has to explain how she and other Yazidi women have been raped, sold, and beaten, and how her mother, father, and her brothers were killed.

I think it's a lot to expect people to continually do this in the face of complete international inaction. A lot of expressions of sympathy, willingness to help, and willingness, where possible, to donate funds to various projects inside the whole region are just not sufficient. This is also relevant when we talk about gender. The one important thing to note is that the understanding of the Yazidi genocide comes from the women because they are the living victims of the genocide; they have taken up a strong position in our understanding of the genocide. If you read about genocide, you will hear accounts mainly from women.

One thing is that most of the Yazidi women have lost the majority of their male relatives. One of the women I interviewed was in her early 20s. She came from a rural village in Sinjar. She had left school, probably, in her early teens; she got married by the time she was 16 and had two children. Twenty-two members of her male relatives were missing, and most of them, we knew, were dead. The rest are presumed dead but are commonly referred to as missing.

The question of how these women are going to support themselves—when they have not grown up in a culture and with the skills to encourage and maintain any sense of independence—is a real question for the world. For the Yazidi community, yes, certainly, but for the world in general: what happens when you have a community that is now disproportionately female and a society that doesn't see value female independence? That's the first question.

The second issue is around what's going to happen with the Sinjar region. What is the future of the Sinjar region? What does reconciliation and issues of accountability mean for the Yazidis? What you see in a lot of these meetings is that everyone is male; you have this use of the women in the advocacy against genocide. But the meetings where decisions actually get made about how things will pan out and what people want are still filled largely with male faces.

AKILA RADHAKRISHNAN: Oftentimes, I found that even through the translation, it's the women who are speaking in their own language, but it's the men's voices that you hear in the room; the translators have, almost entirely, been men. You are hearing women's experiences. But when you're hearing those experiences, you're hearing them through the voice and the lens of a man.

SARETA ASHRAPH: Another point I would like to make is that Murad Ismael, the head of Yazda, was speaking once, and he said something that, I think, is important to underline is that this is a genocide which could still be successful. People think that because the Yazidis are out there speaking, and it's in the press, we're talking about something as in Rwandan 100 days of horror followed by a reckoning. That's not the chronology of what's happening at the moment. We have an attack that happened on the 3rd of August 2014, and we've had a continuing situation (since that time to 2017) where women and girls are being held in sexual slavery, young boys are being taken to ISIS camps and then deployed to missions. Two Yazidi boys were killed when they were sent off by ISIS into the attack on Mosul and used as, I think, suicide bombers.

This is a crime that is still continuing. Even for the Yazidis who are physically safe, the crime is still occurring through them, because you have women who no longer want to bear children. You have people who no longer feel safe and want to leave the area and spread out. This is one of the real concerns; the Yazidis don't feel safe in the areas in which they are, which, I think, is fair enough given that ISIS is still there. The international media has shown no real sign that they would come to rescue them, and they're not rescuing them now. You have the Yazidis who are trying to get out of Iraq and disperse, which is a problem if your community relies on both parents to be Yazidi for the children to be Yazidi. You are also removing yourself from your religious sites, a place where you've existed as a religious group for thousands of years. To underline: this is not a genocide that is necessarily an unsuccessful genocide. It is continuing with no attempt to stop it, as far as I can see. And the impact on the community is really testing the cohesiveness of the community.

STEPHANIE OLSZEWSKI: Can we talk about our work at the ICC? You mentioned that there is almost no way that there will be a referral to the ICC from the Security Council. Is there anything the ICC can do without a referral or any action that can be taken?

SARETA ASHRAPH: Yes, the ICC is relevant because ISIS fighters are men who come from all over the world and from states that are party to the Rome Statute (maybe Belgium, Tunisia, the UK, and America). Sorry, America is not party to the Rome Statute. That's very embarrassing for America. One of the planks (Akila could speak to you a bit more about what Global Justice Center is doing) is looking at whether it's possible to identify and bring foreign fighters from countries that are parties the Rome Statute to justice before the ICC.

AKILA RADHAKRISHNAN:  I will just very simply lay out the ICC jurisdiction. There are a couple of different ways that you can be prosecuted by the ICC. One is if your country has signed it, so it doesn't matter where you committed the crimes. If your countries signed it (so you're from the UK or Belgium) then the ICC can have jurisdiction over you. Interestingly, the ICC is looking at crimes committed by the British in Iraq during the Iraq war in the early 2000s—under this theory of jurisdiction. This is the same theory that we're talking about with the foreign fighters. They can also be prosecuted if they have jurisdiction over a region—whether it's by Afghanistan signing the Rome Statute; for example, they might actually look at what US soldiers did, because even though the US hasn't signed it, US activities happened in Afghanistan. They can look at it when a country refers itself to the ICC. Palestine referred itself to the ICC.

There are different ways that you can get ICC jurisdiction. In this context, we think that accountability is a very important deterrent. The ability to commit crimes against the Yazidis and the ownership of slaves is a recruitment mechanism by ISIS. It’s important that proceedings to criminalize these acts, call them what they are, and bring them to justice as a component of, perhaps, preventing what could be—as Sareta was saying—a successful genocide.

We think that this needs to come at different layers, because the scale is enormous. The ICC doesn't have jurisdiction, generally, over Iraq and Syria. However, they have jurisdiction over these foreign fighters. They can look and see if they can begin a process of investigations of those at least who they have control over, which is exactly what they're doing in the context of British soldiers in Iraq. There are also very important mechanisms that are coming into play now, through the theory of universal jurisdiction. You've got some courts in countries like Germany that are starting to look at genocide proceedings. I think Sareta can speak about this a little bit more, but in Kurdistan, you've seen some prosecutions.

On our end, we're currently working on some advocacy with respect to jurisdiction on the ICC. For us, it's a part of a larger picture. We think one of the most important things is that accountability has to begin now, and everyone who has expertise and the ability to do so shouldn’t wait until the conflict is over. They should start that process right now.

SARETA ASHRAPH: When it comes to the Yazidis, in particular, the crime is well orchestrated. You can speak to, for example, women who were taken from different villages, slightly different times, into different holding sites, stored in different countries, and they will tell you a remarkably similar story about what happened to them and the processes by which it happened. When it comes to accountability, the issue for achieving accountability is not evidential. It's not a case where there is no evidence out there, where we don't have the right facts, and where we can't get sources of information. There's, in fact, almost too much information when it comes to the Yazidi genocide.

There are two problems of accountability. One is the forum in which you find accountability. Which is the court that is going to hear this case? How is the jurisdiction of that court being triggered? The second is how are we getting the defendant into that courtroom? One of the ways forward would be to find foreign fighters who are returning to their home countries, arrest them, and try them for genocide and other crimes against the Yazidis—as well as other crimes against many other groups during the time they were with ISIS. Another way that people are looking at it is trying to find an especially formulated court that is created for those crimes,--whether in the Kurdish regions, for example, or in a regional court. A third way is looking at universal jurisdiction cases and national courts. In fact, when it comes to accountability for Syria, the way most people are moving forward is to try and find national prosecution services who have identified alleged perpetrators who are in their country—whether they're nationals of that country or not—and put them for trial on crimes being committed. Part of that is going to be discussing prosecutorial strategy and this impulse not to charge certain offences as genocide but rely more on war crimes and crimes against humanity.

Even beyond the stage of trying to decide what crimes to prosecute: if you have a defendant and a court, one of the biggest pullbacks has been the tendency of courts to prosecute ISIS fighters for terrorism offenses, rather than for the crimes they committed while they're there. There are continual discussions about foreign fighters and ISIS who are charged with belonging to a terrorist group or engaging in terrorism but not with the underlying crimes. I think that's partly because it's an easier case to make, and there isn't a necessary understanding, by the people prosecuting, of the importance of recognizing the crimes that are being committed as those crimes (in particular, genocide as genocide).

They're saying that we recognize, formally, that there has been an attempt to destroy your entire group. This attempt has risen to the level where we believe the crime genocide is committed, and we are charging on that basis. What we are seeing is, instead, a use of terrorism indictments, rather than group prosecutions for international crimes, which has been problematic. We're seeing sparks of accountability more in the national courts. I think, on all fronts, people will continue whenever they find someone who could possibly be indicted in a court that will take the case.

STEPHANIE OLSZEWSKI: Didn’t Germany just issue an arrest warrant?

SARETA ASHRAPH: Germany and Sweden have been some of the more active jurisdictions. But, I think, national prosecutors are working really hard. It’s very difficult for a national prosecutor with limited resources to start trying cases. There's a whole group of people that is trying to marry up understandings of what happens in the conflict with the people who have the jurisdiction to try it.

STEPHANIE OLSZEWSKI: Do you have any final thoughts?

SARETA ASHRAPH: Yes, I would like to say one thing. What we've seen here is that the Yazidi women are joining Syrian Kurdish forces and independent Yazidi militia. Some of the women—including women who have been sexually enslaved and have been brought back—are taking up arms and being trained. On the one hand, they’re a traumatized community, and you're arming them and sending off of the war—not necessarily ideal. But on the other hand, it changes the ways in which women can be seen in the community. The Yazidi community, historically, lives in a patriarchal region; they are fairly patriarchal—especially in the rural areas. The women leave school early, get married, and have kids. It's not universally true, but it's largely true.

Now you have this issue where you have a young Yazidi girl, Nadia Murad, going all over the world speaking, being championed by her people, seeing women being much more vocal about what they want and what they don't want. Now you’re also seeing Yazidi women going off to fight and participating in battles to retrieve Sinjar. The question is whether that actually survives if we move to a post genocidal world for the Yazidis where they're in a place of some stability? Whether those advantages are limited as they are (I hesitate to call them advantages)? But whether those openings for women, which exist now, will continue is going to be a question.

AKILA RADHAKRISHNAN:  We’ve talked mostly about the Yazidi in the context of ISIS-controlled territory. But you have a large volume of women who are living under ISIS-controlled territory, and it’s a subject for another day.

There is another system of those women who are similarly being commodified and treated as wives and as mothers. There is an entire ideology—that is not about the Yazidi but is core to ISIS—that revolves around women solely existing for the purpose of being wives and mothers. It’s not just women who are already in ISIS-controlled areas who are suffering through this. There are families that are giving women to ISIS. There are also women who are travelling into ISIS-controlled territory through a different set of propaganda and do become Jihadi wives (or whatever you want to call them).

There is a core misogyny that goes far beyond the treatment of the Yazidi within day-to-day life in ISIS territory. Sareta has mentioned how a woman being uncovered is a red flag for her being able to escape, but it also means that there are very strict dress codes and codes of where women can be, how they can act, whom they can interact with. I think all of that ties together with the larger context.

SARETA ASHRAPH: There is a lot information about, for example, forced marriage of the Sunni women and women whose husbands have died being told they need to remarry. Across the conflict, ISIS is a very peculiar group with a peculiar ideology. It deserves a specific examination. There is treatment of women that involves sexual ends across the conflict as a whole—including violence against women in government prisons, arrest and detention of females, the impact of sieges on women and children in particular, and treatment of women by various armed groups. War has always impacted people differently. In general, when it comes to accountability for wars, we find it easier to label and understand how wars have an impact on men—given that war is a social fact that is created and perpetrated by men. Many of the victims are, in fact, men. A more complex picture arises with gender across the conflicts.

When I was in Dohuk, doing a lot of interviews, I took with me Margaret Atwood’s Handmaid’s Tale, which I had read when I was 15-16. I had read it continuously since that time. One of the things I really remarked about it is how close the understanding of what women’s roles are in a society and what ISIS is doing is replicated in The Handmaid’s Tale. In The Handmaid’s Tale, the victim is the handmaid who is passed around from men to men in order to impregnate her in the world where there had been declining births. Equally, you have the wife who’s dressed in blue—who’s in her own way a victim. I think that’s very much similar to what we see in ISIS-controlled territory. You have these wives who are living in the houses and are sometimes involved in the abuse of the Yazidi girls, in terms of beating and forcing them to cook, clean, and take care of their children. These are women who are trapped in a world that is made for and, specifically, designed for men who adhere to the ideology of that world.

We have to remember that a lot of the ISIS fighters weren’t necessarily from Syria and Iraq. You had fighters who grew up in night clubs in Portsmouth or who were hanging out in the beaches of Southern France. We have to ask ourselves: what is it that causes groups of young men (and the continuing use of fighters disguises the fact that these are all men) to go from a country where you think women are being largely respected into ISIS-controlled territory in Iraq to engage in this kind of conduct, to believe that this is something that is a positive thing to do, and to live everyday with immense human suffering that they must see the Yazidi women and children there?

The question that deserves a lot of thought is what is it about the ways that people understand women, how they should be treated, how they can be objectified, that provides a bedrock? When you move into society that has territorial control and physical control of the people, you have an authority that is above you, saying that this is acceptable, and that something within you agrees with that without question.

I don’t think it’s enough to simply blame the longstanding persecution of the Yazidis—although it’s important and relevant—because you had situations where people joined in who weren’t ISIS but you also had large numbers of families (including Muslim families) who helped rescue the Yazidis. We have to talk about how women are seen in society in general. There is an underlying threat of misogyny and of willingness to not view women as people or to view women as objects that are there for male pleasure and the male gaze. That understanding exists everywhere. I think ISIS takes it to a horrifying extreme. But it’s a relevant question (when you have so many people and foreign fighters from all over the world who are engaging in this conduct) to think about why it is that men, who are growing up all over the world, can all participate in this conduct once you have someone in authority about you saying it’s acceptable.

STEPHANIE OLSZEWSKI: Thank you so much to Sareta for joining us and thank you to our listeners. Please rate and review us on iTunes and please join us next week for more discussions on international law.

Tags: International Humanitarian Law, Genocide, Podcast