Against whom is ISIS committing genocide?

Akila: The Yazidis, Shia Muslim populations, likely the Shia Turkmen, the Shia Shabak, and possibly Christians.

How is ISIS committing genocide?

Grant: There are five ways to commit genocide and ISIS is committing all of them. (1) It’s killing men of fighting age and elderly women. (2) It’s inflicting serious emotional and mental harm by subjecting women to sexual slavery, by forcibly marrying them, and by isolating them from other members of their community. (3) ISIS is forcibly converting Yazidis and other religious minorities from their held religious belief to Islam. (4) It’s imposing conditions to destroy the group — in order to be a Yazidi, both parents have to be Yazidi, so by killing the men and raping the women they are precluding Yazidis from procreating. (5) ISIS is also forcibly transferring children from one group to another group, and by that I mean forcibly transferring children from a Yazidi group to a Jihadi group as child soldiers. All of these acts are being done with the intention to destroy the group, which makes them genocide.

What is the Genocide Convention?

G: The Genocide Convention was created in response to World War II. It was drafted by a Polish man, Raphael Lemkin. He used the Armenian and World War II genocides as his framework since they were the most historically recent. In large part the Convention was a reaction to and an acknowledgment of, the particular value that distinct cultures have on the world stage and the concept that when a culture goes extinct, it is lost forever. That value is one that was enshrined in the Convention and one that Lemkin and the other drafters were really keen on trying to preserve.

A: Yes, and to do that the Convention specifically recognized four types of groups; racial groups, national groups, ethnical groups (which I don’t think is a real word, but they used it), and religious groups. They explicitly excluded political groups, which is a whole other discussion. But those four groupings they wished to protect as distinct identities, and the Convention said it’s important that these groups are not destroyed in whole or in part. The passage of the Convention was a very important lodestar in recognizing this new crime that had been seen but hadn’t been formally enunciated.

G: Lemkin was the one who actually coined the term, “genocide.” And with that value of a diverse world in mind in writing it, he broadened the scope of genocide beyond just mass killings to include other types of crimes. This concept is important because you can destroy a group by methods other than murder. You can do it by inflicting severe emotional or physical pain, you can do it by imposing conditions designed to bring the about the destruction of a group, you can do it by imposing conditions to limit births, or you can do it by forcibly transferring children. None of those last four require killing, and they are disproportionately carried out against women. We are seeing this now playing out with ISIS where they’re killing the men, but women are being sexually enslaved, women are being isolated from other members of their group, women are being forcibly converted, they’re being forcibly married. It’s interesting how Lemkin was so prescient as to the ways to destroy a group that he saw fit to include these types of crimes, and over 65 years later it’s obviously still incredibly relevant.

Can you walk us through the legal obligations side of it?

A: Well the Genocide Convention doesn’t have universal ascension, and by that I mean there are 193 states in the UN, but the Convention only has around 147 signatories. But there’s this concept of customary international law. When many states begin following a general practice out of a sense of legal obligation, regardless of whether they’ve specifically ascended to a treaty, this then becomes known as customary international law. When it comes to genocide, the customary international law is much stronger and much more widely applicable than the Convention. The prohibition on genocide is actually considered to be so important that it has attained an even higher status of customary international law called jus cogens, which means it is absolutely non-derogable in every context. This means that when states commit a violation, not only do you have obligations as the violating state to stop it, but other states actually have obligations to do something about you violating that norm.

G: It’s “erga omnes.”

A: Yeah it’s either a jus cogens norm or an erga omnes obligation.

G: So, just to clarify, jus cogens is crimes that are non-derogable, or allowed under no circumstances. Which means piracy…

A: Slavery, apartheid, hostage taking…

G: Even hijacking planes they say is jus cogens. If there is a violation of a jus cogens norm because it has such high status, it’s considered to be a violation against the community of states, and so all states have what we call an “erga omnes” obligation to act.

A: Right. Also, the Genocide Convention imposes obligations to prevent and suppress and punish. So the punishment component is the criminal responsibility for individuals who perpetrate genocide. That exists within the convention and it also now exists within the Rome Statute of the International Criminal Court (ICC). Genocide is one of the four crimes which the ICC has jurisdiction over. Those four crimes are the crime of aggression (which is still in development), genocide, war crimes, and crimes against humanity. Under the Rome Statute perpetrators can be punished at the ICC for committing genocide.

G: Iraq and Syria have signed the Genocide Convention, but they haven’t signed onto the ICC’s Rome Statue, which is a problem we can get into later.

Aside from the Genocide Convention are there other international laws against genocide?

A: There is this other area, that’s not hard law perhaps, but since crises have happened in Bosnia and Kosovo, there is this concept of the“Responsibility to Protect” that has arisen under international law out of a mass atrocity framework. The Responsibility to Protect, or “R2P” invokes obligations for other states to intervene and stop the committing of mass atrocities. Genocide is often also looked at under this framework. Kosovo and Libya, which were considered humanitarian interventions, are big examples of tests of this concept to intervene when mass atrocities are being committed or are about to be committed.

G: As an interesting political side note, intervention in Libya was sold to China and Russia on the UN Security Council as humanitarian intervention.

A: Because when you use force you need to get the Security Council’s approval.

G: Right. This R2P framework had developed post- Kosovo, and a lot of academics were talking about it, people were aware of it and then Libya happened and the US and the UK said, “this is the opportunity to use R2P.” Then slowly it became clear that the humanitarian intervention had been co-opted as a mechanism to effect regime change and political goals, and that really, really irritated Russia and China. This is why the response to Syria is so different from the response to Libya, and you don’t have no-fly zones or bomb strikes on chemical weapons facilities, because what happened in Libya alienated key players on the Security Council.

A: This is also what didn’t happen in Kosovo, which is hugely controversial. In Kosovo, NATO went ahead and created no-fly zones, bombed and committed other actions, then afterward everyone recognized that was not fully legal under the UN Charter. It was only after the fact that the Security Council gave their tacit blessing for that use of force in a resolution.

G: A resolution, by the way, that didn’t mention anything about bombing, but whose silence has been interpreted as acceptance or acquiescence to the bombing’s legality.

A: I also think an interesting thing to note in the context of ISIS’s genocide is that the Genocide Convention and all of these international laws came about assuming that it would be a state actor that was committing genocide. Because at that point in time, governments had perpetrated genocides, (which may be is what is going on in Burundi right now that we’re not really talking about). But in this context the actor is ISIS. This creates a complicated situation where you’ve got a non-state actor committing genocidal acts in the state of Iraq. The question then becomes, what is the Iraqi government’s obligation when this is happening in their territory? The women and girls taken are currently being held captive in Syria where you don’t really have a government, and there is a civil war going on concurrently. The governmental actor is not necessarily perpetrating genocide, but it is also not a state that you can negotiate with in order to have access to do anything about it. These are new challenges, but we would say, just because things are complicated doesn’t mean that’s an excuse for inaction. Countries need to be looking at these situations proactively and taking measures to address them head on.

G: That’s a big problem that international law is trying to address now — where is the space for non-state armed actors? Because much of the legal framework for international law was state versus state, Cold War-era type stuff. Now that’s not how it fleshes out and no one really knows how to deal with it. This new space for non-state armed actors is how governments are creating grey zones like unlawful enemy combatants in Guantanamo, where the US government can say, “the Geneva Conventions don’t cover this because it’s a new thing, so boom, we can do what we want.”

A: Another thing to keep in mind when talking about non-state actors is to be careful not to let states off the hook for how they’re engaging in operations. In Nigeria, it’s been quite heavily documented that Boko Haram is committing a whole range of crimes. But so have Nigerian security forces, so has the JTF, which is a civilian quasi-military force that has risen to protect areas that Boko Haram is operating in. They are also likely committing war crimes and crimes against humanity. What you don’t want to allow is for the Nigerian government to get off the hook for these acts by focusing only on the acts of an insurgent group. We can’t be so laser focused on a group like ISIS that we gloss over what’s happening in the civil war in Syria, or the Iraqi Security Forces, or the Peshmerga.

Recently John Kerry came out and said that ISIS was committing genocide. Why is this a big deal?

G: I would say it’s a big deal because governmental recognition of genocide has been intentionally avoided due to that fact that when it is recognized, it triggers international legal obligations under the Genocide Convention. By acknowledging that ISIS is committing genocide, Kerry has, or the US has kicked into gear formal recognition of actions that the US should be undertaking to prevent ISIS’s genocide, to suppress ISIS’s genocide, and to punish ISIS’s genocide.

A: Yes, and it’s particularly important because, if you look at the record of the US, we’ve avoided using the word in the past specifically when we didn’t want to invoke our obligations. A lot of information concerning the Rwandan genocide from the State Department has been declassified, and in those documents there are statements from the Office of the Legal Advisor of the State Department where they say explicitly, we didn’t say the word “genocide” because we knew that it would incur obligations. The British government also said, in declassified documents, that they were following Madeline Albright at the time in also not saying genocide for fear of incurring obligations. What is particularly striking about the US recognizing genocide now is that the US is on the UN Security Council. We are a state that has a significant amount of power and ability to do something. The US also has a very special relationship in Iraq. Even after US military forces withdrew, we still have maintained a pretty strong presence there, and one of the calculi under the law to determine what a state is supposed to do in preventing genocide is based on your ability to actually do something.

G: Right. To unpack that a bit, it’s a big deal for any government to recognize genocide, but it’s a big deal that the US is recognizing it, like Akila says, because the US is such a major player on the global stage. Its presence on the Security Council, its presence in Iraq…

A: And as the leader of the global coalition against ISIS as well.

G: Yes. So all states have an obligation to prevent, suppress, and punish, but because the US is such a big player in these venues its obligations are more robust.

Now that the US has said ISIS is committing genocide, what should we do?

A: Well we can’t do what Ted Cruz suggested. We can’t carpet bomb them, there are still a lot of civilians and victims of genocide there. To start with what we are not allowed to do.

G: It’s also a little bit of a delicate thing because what’s happening in Syria and Iraq — it’s a war zone. Military people have said, “well it can’t be a crime scene and a war zone at the same time. We can’t conduct a war and preserve evidence.” Which is one of the reasons why they didn’t want to declare it genocide initially. Now that the State Department has gone ahead and labeled it, you have this tension of interest, where the military wants to go and destroy ISIS and in doing so could get in the way of the US fulfilling its legal obligations regarding genocide. That it’s in war doesn’t change the fact that under genocide law there are legal obligations, so when war destroys the evidence or crime scenes, the obligations must be kept in mind. We make the argument that under your obligation to suppress genocide, you have the obligation to rescue victims. This means when you are conducting trainings of Iraqi opposition fighters or when US Special Forces have gone in and taken land back, you have to do that with an eye towards civilians and your obligation to rescue. Exactly how that fleshes out it’s hard for us to say, but if it’s not a part of the US’s existing calculus it needs to be.

A: Yes, and I think an example would help. One of the things we’ve been talking about is how men and women are affected by genocide differently. Men in many of these cases were killed, and the women and children were abducted. Today, you have 3,000 Yazidi women and girls being held by ISIS. One thing we do know for sure is that there are private smuggle routes where families are able to get in touch with those in captivity and girls have been coming out, albeit very slowly and not in an efficient or safe manner. Typically in armed conflicts, you would have the military conducting these rescue operations, but here it’s being done by private individuals and civilians.

G: Right, if you are going to train and arm opposition fighters, why not train and arm people rescuing Yazidis? We would argue it is your obligation under international law to do so, and the US is not doing that and is failing its duty there.

A: They need to be thinking proactively about these things.

Anything else aside from rescue the US can/should do?

G: What we just talked was what the US can do to suppress, but genocide law also requires that you punish. States have obligations to prosecute and punish those that are committing genocide, those aiding and abetting genocide, those inciting genocide and those complicit in genocide. That includes people who are recruiting, which includes people who are recruiting in the United States, meaning that we should be coordinating with our partners in the EU to help bring to justice people who are recruiting or inciting genocide within the EU.

A: The US can also introduce resolutions at the Security Council to refer Syria and Iraq to the ICC. It’s hard to say prescriptively that these are the exact activities that need to happen, but back in 2007, the International Court of Justice (ICJ) laid out in a judgment in a case between Serbia and Bosnia that related to the genocide in Srebrenica. And in that case, the ICJ examined: what did Serbia do to prevent genocide? And what should they have done? And the ICJ set out in broad strokes some of the factors that have to be taken into account. That judgment is something for the US to take a look at. The ICJ looked at things like geographic scope, your ability to influence the parties and the countries in question.

G: There’s geographic distance like whether you share a border, there’s global influence, and then there’s influence on the acting parties.

A: I think one thing that’s important to mention here is that when people think of punishment, they always think of the end. After the Holocaust, it was Nuremberg where we dealt with punishment, and in Yugoslavia we dealt with it in courts where people are still being prosecuted over ten years after conflict began. Often times that’s a practical thing, you need the infrastructure and the ability to arrest and try people, which is difficult to do in ongoing conflict. But there is also a real value to prosecuting crimes as they are happening because there is a deterrent effect to punishment. That deterrent effect is particularly important in this context because the ability to commit some of these crimes, in particular rape, has actually been used as a recruiting tool. It is in ISIS’s propaganda. The idea that you need to de-legitimize these efforts by calling them crimes is incredibly important. It’s not a spoil of war to get a sex slave by joining ISIS. You are committing a crime and you will be punished for it. The impact of recognizing and prosecuting that act would be huge.

G: It’s a two for one — you are taking care of your obligation to punish but you are also taking care of your obligation to prevent by stigmatizing and stemming further crimes, which could have a de-radicalization effect.

A: Yes.

G: One last thing, part of what feeds into ISIS’s targeting of women in the first place is structural inequality between men and women. Part of what the US and other actors could be doing now is looking at early sign indicators of when there are increasing risks of genocide. In fact, the gender inequality in the region indicated there was was a high risk for mass atrocities for a very long time. Yazidis had been discriminated against for a long time, and gender discrimination within these cultures is something that is very pervasive. So one thing that the US can do now is address structural gender inequality where it exists to prevent genocide in the future.

You mentioned foreign fighters; can the US extradite its fighters and then try them domestically for genocide?

G: If a foreign fighter from the US was either in Iraqi territory or in another country’s territory, the US could ask for extradition and engage in prosecutions domestically. We encourage states to do that, because the ICC is not an open venue at this point, and prosecution is important, and you do have an obligation to domestically prosecute genocide.

Can you expand on the ICC and what it’s role in this can be?

G: The ICC can only get jurisdiction over cases like this in a couple of ways, and like we said before, Iraq and Syria are not State parties to the Rome Statute, which created the ICC, so that is out. This means that really the only way for them to get jurisdiction is by a referral by the UN Security Council. The UN Security Council can look at a situation and say, “it looks like there are crimes going on here that the ICC could try, let’s adopt a resolution to send this to the ICC.” That’s what they did in Libya, that’s what they’ve done in Sudan. They haven’t done it in Syria, largely because of Russia, but that doesn’t mean that the US shouldn’t be trying to agitate for that to happen. And they haven’t been, as far as we know.

A: In fact, legally, it’s an “obligation of means” not an “obligation of result.” Which means, just because a referral to the ICC is not going to pass the Security Council doesn’t mean the US shouldn’t attempt it. It’s not an obligation to succeed, it’s an obligation to try everything that you possibly can to prevent and suppress genocide. That’s where the Security Council politics are an interesting thing to look at. You have to be feasible and realistic obviously, but at the same time there are still things that you can try to do regardless of whether or not Russia is going to veto it.

G: Right, you could argue that it’s irrelevant what Russia does because your obligation isn’t to do things vis-à-vis other countries and the US is a permanent member of the Security Council.

A: The UK and France could also be trying the same things. Obviously, it’s easy for us to say these things because we’re coming from an NGO perspective, we’re advocates, we want to advocate for them to do everything they possibly can. But we would recommend a resolution at least, because what’s happening right now is, the ICC has said, “thus far we don’t have jurisdiction, therefore we are not opening a preliminary examination.” The ICC has done nothing as far as doing any sort of investigation on this case. Now interestingly, in September of last year, two Yazidi groups jointly submitted what’s known as an Article 15 Submission to the ICC, which is a way for anyone to submit information to the ICC. In their submission, they said, “hey, we think you have jurisdiction for x, y, z reasons, so you should open a preliminary examination.” In this context, they’re making a very interesting argument. There are a large number of people in ISIS who are considered foreign terrorist fighters, which means people who have crossed borders to go into Iraq and Syria to join ISIS but are nationals of other countries. In many of these cases, they are nationals of countries that have signed the Rome Statute. Which means the ICC does, in fact, have jurisdiction over these people vis-à-vis their nationalities. This joint submission was encouraging the ICC to say, “Okay so we don’t have blanket jurisdiction over Iraq and Syria to look at this situation, but we do have jurisdiction over these people…”

G: Tunisians, or Jordanians, Australians, French, the British. You can try these people, so look into that as opposed to looking only at Syrians and Iraqis.

A: Right, and the ICC thus far has not made a determination on this issue. What the ICC has said is they (1) don’t have a lot of resources and (2) are a court of last resort, which means they don’t just investigate every case. Even in areas where they have jurisdiction the ICC is not going to prosecute every individual that’s associated with a particular conflict.

G: Well I thought that the ICC had said that there aren’t enough foreign fighters in high enough positions to justify opening up a case . . .

A: Well right, they said there wasn’t enough information on it. But basically, what they’re saying is that our strategy is to prosecute those who are most responsible, the people at the top. That’s why you had the recent judgment that came down with Bemba; he was the absolute head of the forces that were committing crimes in the Central African Republic. The evidence thus far seems to show that foreign terrorist fighters aren’t within the high levels of ISIS. Therefore, they’re not the ones who would be most responsible. This allows the ICC to claim it’s not within their prosecutorial strategy. Now they’ve also said, and you know that when you dig down through documents you can find anything that anyone said, they’ve also said that they could consider expanding that strategy to mid-level perpetrators and low-level perpetrators in certain circumstances including where they are particularly notorious.

G: Yeah, where they’ve “acquired extensive notoriety.”

A: Right, if it would serve the interest of justice, and in this context we would say that if would definitely serve the interest of justice. Especially in terms of the importance of stemming the tide of fighters going in. To start prosecuting nationals from other countries at a prominent place like the ICC could really help potential recruits start to understand that there are very, very serious consequences associated with you engaging in these acts because thus far everything is happening with complete impunity.

G: This bit about prosecuting low-level people if their crimes are particularly notorious seems like it has been totally forgotten. Because you don’t get any more notorious than ISIS, so for the ICC to say that there weren’t enough foreign fighters in high enough places to warrant an investigation…it’s crazy.

Do you think the US labeling this as genocide puts more pressure on the ICC to do something?

A+ G: No. (laughter)

G: Well, the thing is, with the ICC, it doesn’t matter what crimes are being committed. North Korea could genocide half a million of its people and the ICC would have no jurisdiction because North Korea is not a part of the ICC and it’s not going to be referred by the UN Security Council because China would veto it. It could be the worst crimes ever and the ICC just doesn’t have jurisdiction. It doesn’t matter what’s happening, it matters where it’s being done, if they’re a party or those committing it are citizens of a party to the Rome Statute.

A: Where it does matter that the US has said genocide is, if the ICC opens an investigation, broader recognition that genocide is happening will then hopefully make sure that the ICC includes genocide at the investigation stage onwards. There hasn’t been a lot of jurisprudence that has come out of the ICC yet, but what you look back at cases, there has been a lot of criticism that the ICC, basically until the Bemba case last week, that none of the ICC cases have adequately prosecuted or included sexual violence. With Lubanga, which was the ICC’s first conviction, they didn’t include sexual violence as a part of the charges about child soldiers because they were focusing on the boys and not on the girls that were taken. Then because it wasn’t included in the charges, it wasn’t included in the reparations that were handed out. So states recognizing genocide does put pressure on the ICC to make sure that genocide is one of the charges in their investigation.

G: And to go back to one of your earlier questions, the United States making that recognition sets the stage for how they can treat genocide in these later prosecutorial processes. That’s another thing the US just said they would do, is provide support or specifically try to gather information in a reasonable way about these crimes to preserve for later prosecutions.

A: Yes, after Sinjar was taken back, for example, they found a lot of mass graves, and the information that has come out from there is showing the graves are not being adequately protected. Documentation of the evidence from those mass graves is not being done within the standards of prosecution. It’s very important to document and preserve this information now before it has been tampered with, so even if the prosecution takes place ten years down the road, it’s all done to the correct evidentiary standards.

G: Yes. The US should also be doing things like, debriefing survivors of sexual violence, or getting evidence from survivors of sexual violence. Of course, you’re going to want to do that in a gender-sensitive way, but let’s start building this infrastructure of documentation and evidence, building this house now so when we do prosecute it later, we do it well, and we do it right and we do it according to the crimes that actually happened which are these gender-based crimes.

Anything else you’d like to add?

G: I think one thing that’s worth highlighting is that legally, you incur obligations to prevent, suppress, and punish genocide not only when genocide is happening, but when there is a risk of genocide.

A: Which was Sinjar, which is what Obama stated in justifying military force there.

G: Right. If you take these early warning signals that I alluded to, and you add a gender component to them, you can recognize where there’s a risk, and you can better recognize when your obligations kick in. It’s not, now that 3,000 Yazidis are in ISIS captivity that you have obligations all of a sudden. You had them, like Akila rightly points out, at Sinjar.

A: I think the thing that we would just circle back to is, there’s all this reluctance over saying genocide, there’s all these concerns over politicizing genocide, and I think what’s important to understand, and Grant talked about this at the beginning of the conversation, is that genocide protects distinct values. That’s why it is important to call it what it is, treat it like what it is. It’s not more or less horrific than other war crimes or crimes against humanity, it just protects something that can’t be regained, and it’s something that is very, very distinct. That’s why its recognition is important, its treatment is important. And, since the Holocaust, we’ve failed genocide victims. We haven’t done a good job. We allowed Rwanda to happen, we allowed Srebrenica to happen, we allowed Darfur to happen. Now it’s happening again. It’s not enough to recognize that we want to live in a world that’s characterized by diversity and allows the coexistence of all of these different groups, what’s important is that when it’s threatened, we do something about it. Our continual failures thus far are not promising. But John Kerry standing up and saying its genocide hopefully will have influence.

G: To quote John Kerry, one of the last lines of his speech is, it’s not enough to recognize these atrocities, what is essential is to stop them.