Justice for the Yazidis

Jennifer VenisTuesday 27 September 2022

Displaced people from the minority Yazidi sect flee violence from forces loyal to the Islamic State, near the Syrian border town of Elierbeh, Syria. 10 August 2014. REUTERS/Rodi Said.

                                      *Content warning: This article contains references to violence and abuse that readers may find upsetting*

Following the attempt by ISIS to annihilate the Yazidi minority, there has been growing momentum to achieve accountability. Global Insight assesses the routes to justice.

Before 2014, Hala Safel lived a simple life with her family. ‘We went to school, we went to parties, and we all gathered together to eat. We were very satisfied because all of my family members were together. But now it’s very different.’

Safel, now 26 years old, is a Yazidi – an ancient, close-knit, ethno-religious minority. She used to live in a village called Tal Qasab in Sinjar, the Yazidi homeland, but is now one of 200,000 Yazidis living at an internal displacement camp. The rest have fled their homeland, are missing or are dead.

I would describe my experience in 2014 and how the genocide happened to us as a slow death

Hala Safel
Genocide survivor

In August 2014, the Islamic State of Iraq and Syria (ISIS), launched a genocide against the Yazidis, slaughtering or enslaving thousands, forcing religious conversion, and abducting young boys to fight for the Caliphate.

The full scale of the genocide has not been confirmed, but estimates suggest at least 5,500 people were killed. On just the first day of the genocide, ISIS kidnapped 6,417 Yazidis from Sinjar, selling 3,548 women and girls to individual ISIS members and into a life of sexual slavery and forced labour. ‘I would describe my experience in 2014 and how the genocide happened to us as a slow death, because each time they were killing a part of my body when they were killing my family members – my brother, my father – and when they separated me from my sisters and took us away’, Safel tells Global Insight, through interpretation by Juwan Jasim Shro at Yazda, an organisation supporting survivors.

Safel was 17 when she was captured in 2014 and held for three years. ‘They did all types of violence to me – all sexual violence, they were beating me, they were enslaving me, forcing me to pray with the Islamic Quran and forcing me to wear a burqa’, she says. ‘It’s very difficult for me to explain what happened because it was all types of sexual violence and abuse. I faced everything and it was like a hell for me.’

Hala Safel, Yazidi survivor of the genocide. Credit: Yazda

Years after military operations pushed ISIS back into the shadows, stories of survivors like Safel are now being told in courtrooms, as international attention turns to justice for the genocide.

Pathways to justice

Many ISIS members have been convicted of terrorism, but only in 2021 did Yazidis see convictions acknowledging the full extent of atrocities committed: crimes against humanity, war crimes and genocide. These convictions for international crimes have not come from Iraq or an international tribunal, but from Germany, through the principle of universal jurisdiction (UJ). This enables national prosecutions of certain international crimes committed elsewhere, even if, under some statutes, the suspect or victim has no connection to the prosecuting country.

Amanda Ghahremani, a co-investigator at the Canadian Partnership for International Justice, calls the principle a ‘tool of last resort’, because crimes should be prosecuted domestically. However, international law obliges states to prosecute universally prohibited crimes such as genocide, she says. ‘If there is no prosecution where the crime occurred, and the International Criminal Court [ICC] cannot prosecute either, then countries with UJ have a responsibility to do so.’

Iraqi defendant Taha Al-J. covers his face as he talks to his lawyers Serkan Alkan and Martin Heising before his verdict in a courtroom in Frankfurt, Germany, 30 November 2021. Frank Rumpenhorst/Pool via REUTERS

In March 2021, Hamburg’s Higher Regional Court delivered the first conviction for ISIS’ atrocities, sentencing a German ISIS member to several years in prison for aiding and abetting crimes against humanity, among other crimes. The first genocide conviction, in November 2021, was a ‘pure’ universal jurisdiction case: Taha Al-J, an Iraqi national extradited to Germany from Greece, for a crime committed in Iraq against a victim who was still in Iraq when the investigation began.

Taha was convicted of genocide, crimes against humanity and war crimes, and sentenced to life imprisonment. He had enslaved and abused a five-year-old, Reda, and her mother, Nora B. Reda died when, as punishment for wetting the bed, Taha left her tied outside in the sun for hours.

Nora B testified in court after Yazda helped connect German prosecutors with her, as it has for several co-plaintiffs. Nora was the only factual witness, although the Court also had access to open-source material, documents recovered by military operations, as well as testimony from two experts and an investigator who had interviewed 150 Yazidis in Germany. Natalie von Wistinghausen, Member of the IBA War Crimes Committee Advisory Board and a Berlin-based international criminal lawyer, has represented co-plaintiffs in several of the Yazidi cases. ‘My impression is that the German judges deal with these cases just as they would deal with any other case. So, if you have one very good and credible witness, it’s enough, independent of the fact that it’s one of the worst crimes that can be committed’, she says. Hundreds of factual witnesses are usually required at the ICC, making justice less accessible.

For Natia Navrouzov, a Georgian Yazidi and the Legal Advocacy Director at Yazda, ‘what’s so strong here is how the testimony of just one survivor could lead to such a conviction. It brings so much hope for other Yazidi survivors, but also survivors from other places. To see that your own testimony can have such an impact is so empowering and powerful. In the Yazidi history, we say that we went through 73 other genocides, plus the one committed by ISIS. This is the first time in our history that we are aware of a perpetrator being convicted’.

Another genocide conviction came in July: a Hamburg court sentenced German ISIS member Jalda A to five years’ imprisonment for aiding and abetting genocide, as well as crimes against humanity and war crimes. The judge noted that the testimony of a Yazidi survivor, ‘M’, was crucial for the conviction. The court found M was bought or sold 15 times and raped by 14 ‘slave owners’. She also testified in three other German cases.

These trials are far from the Yazidi homeland, and without Yazda many Yazidis would have no information about the convictions due to a lack of outreach from German courts. Still, for Safel, they are crucial in acknowledging the global nature of ISIS: ‘It doesn’t matter where the trials are because ISIS members were not only Iraqis, they had different citizenships’, she says.

But Germany is alone in prosecuting ISIS for atrocity crimes, as other countries focus on convicting repatriated ISIS members of terrorism. Navrouzov argues that if there is sufficient evidence, both terrorism and international crimes should be charged. She highlights that terrorism trials mainly serve the state, while those for international crimes centre victims. ‘I’ve heard Iraqi judges saying why do Yazidis complain, we prosecute and execute ISIS members so your problem is solved. But, of course, this is just a simplified way to see this. It’s not the justice survivors want’, she says.

She suggests most survivors would testify to support international criminal trials, and highlights that trials also provide a historical record. ‘If you show how ISIS committed genocide and enslaved people, you show what ISIS is and maybe you prevent people from being brainwashed into joining them, especially people from third countries.’ Otherwise, she says, history will repeat itself.

For Safel, it’s important for countries to punish ISIS members for international crimes to recognise the scope of attacks on Yazidis and other minorities. She wishes they were imprisoned ‘for a lifetime, because if they are released, they will do the same crimes again and again. And we say never again’.

But, ultimately, Safel says, ‘putting ISIS members in prison will not bring back my mother and father. So, justice is also to bring back the safety and peace that I had before the genocide’.

Is the genocide over?

For survivors, the genocide is ongoing. ‘Around 2,700 people are missing and in captivity and no-one is looking for them except their families’, Navrouzov says. ‘There’s no security in Sinjar, there’s still bombing. Around 200,000 Yazidis still live in IDP [internally displaced person] camps. There are 60 mass graves in Sinjar that still need to be exhumed. In this situation, how can we think that the genocide is over?’

‘When I moved to Iraq as a young lawyer, I was very naïve in a way, because I thought justice is really putting people behind bars, and this is surely what survivors want. I have never been so wrong’, she says, as ‘this is just a small part of what they really want and need’.

Instead, she says, ‘first, [survivors] want someone to look for our missing. The second important thing is to exhume all the mass graves in Sinjar, because how can you return to your village where a few metres away your brother’s or your father’s remains [are] buried in a mass grave. And the third main thing is that survivors need dignified living conditions, reparation and support from the state’.

In 2021, Iraq passed the Yazidi Survivors Law to provide reparations through a monthly salary, a plot of land and access to healthcare, employment and education. ‘This is exactly what survivors need’, Navrouzov says. ‘To live a normal life.’

But the law has yet to be properly implemented, leaving survivors feeling abandoned. ‘Until now, we didn’t receive any reparations for what happened to us in 2014’, Safel says, ‘so how can I ask for my rights?’

A Yazidi shrine, located on the south side of the Sinjar Mountains, which was destroyed by ISIS. Credit: Yazda

Another barrier to peace, Navrouzov says, is the need for a strategic transitional justice plan to address broader issues, including the persecution and marginalisation of Yazidis and other minorities, and to provide guarantees of non-repetition. ‘There are many things that happened to Yazidis that will never be addressed in court, for example, neighbours enabling and supporting ISIS still living around Sinjar, or the Iraqi army withdrawing when ISIS came’, she says. ‘It needs dialogue and reconciliation otherwise the Yazidis will never be able to move on and feel safe.’

She argues that states should also account for their role in enabling the genocide. ‘State responsibility is an issue that [survivors] have been raising for a long time. They often ask, “what about those states that actually facilitated or didn’t do anything about those crimes?”’

The Yazidi Justice Committee

In July, the Yazidi Justice Committee (YJC) – formed in 2020 as an ad hoc body of several organisations, including the IBA’s Human Rights Institute and the Bar Human Rights Committee of England and Wales – published a report on state responsibility for the genocide.

The YJC’s report calls for Iraq, Syria and Turkey to be brought before the International Court of Justice for allegedly failing to meet binding legal obligations imposed by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the ‘Convention’), which requires all states to take all reasonable measures available to prevent genocide. ‘In respect of the conduct of ISIS, these duties can relate to what to do when a non-state actor like ISIS is in your territory, such as taking pre-emptive and precautionary measures to protect communities that you know might, and indeed will, be targeted by ISIS’, Aarif Abraham, co-editor of the report alongside Dr Aldo Zammit Borda and Tatyana Eatwell, tells Global Insight.

The report says that ‘there are reasonable grounds to conclude that some acts by Turkey were undertaken knowing that they would aid or assist the commission of prohibited acts by ISIS or that Turkey was wilfully blind to the fact that ISIS would use such aid or assistance to commit prohibited acts’. It also claims that Turkey failed to take all measures reasonably available to prevent genocide, including preventing the sale of enslaved Yazidi women and children within Turkey.

Ümit Yalçın, the Turkish Ambassador to the UK, called the criticisms ‘baseless’, arguing that ‘starting from the early years of the conflict in Syria, [Turkey] played a key role in the protection of Syrian civilians and minorities, including Yazidis, in the region against the attacks and violations of terrorist groups’.

Coffins with remains of people from the Yazidi minority, who were killed by Islamic State militants, in Kojo, Iraq, 6 February 2021. REUTERS/Thaier al-Sudani

Despite Iraq recognising the genocide in June 2014, with the country calling upon the UN to do the same and requesting that the US launch air strikes against ISIS, the report claims Iraq ‘failed to use all means reasonably available to protect the Yazidis’ and prevent the genocide. In particular, it condemns the failure to evacuate Yazidis as ISIS approached Sinjar and alleges a ‘failure’ by Iraq to ‘ensure the security’ of key areas facing continuing attacks.

Finally, the report claims Syria failed to prevent or disrupt ISIS activities in its territory, including the transfer and detention of enslaved Yazidis.

The Iraqi embassy in the UK did not respond to Global Insight’s request for comment, while Syria had temporarily closed its UK embassy at the time of writing.

Toby Cadman, Communications Officer of the IBA War Crimes Committee and a partner at Guernica 37 International Justice Chambers in London, says ‘such attempts to seek accountability for state failures to prevent genocide are rare. This is primarily due to the fact that enforcement of these obligations is contingent on political will. The reality is that states are reluctant to recognise atrocities as genocide and are unwilling to prosecute such acts’.

Other reports have called for justice in respect of the role social media played in enabling the sale of enslaved Yazidis online, and for Western corporations with alleged links to ISIS to be investigated. Navrouzov says ‘we are supportive of all justice initiatives, as long as it’s done in a survivor-centred manner and survivors are also part of all these processes wherever possible’.

For Sareta Ashraph, Co-Chair of the IBA War Crimes Committee and a barrister at Garden Court Chambers in London, centring survivors requires justice processes to fully understand the atrocities, particularly how gender shapes them. ‘Gender permeates the crime of genocide’, she says. ‘It is woven into the perpetrators’ planning and commission of co-ordinated acts that make up the continuum of genocidal violence. It is through these gendered annihilative acts that perpetrators maximise the crime’s destructive impact. For genocide to be prevented, suppressed and punished, it must first be recognised. With little or no regard to the gendered nature of the crime, an acknowledgement of all genocide’s victims has too often been lacking.’

Gender and genocide

The Yazidi genocide is ‘one of the clearest examples of the role that gender has in the commission and impact of genocide’, says Ashraph. ‘ISIS is very rigid in how it views gender, and we see very clearly that crimes committed against the Yazidis pivot around the perceived gender and age of the individual.’

She highlights that men and older boys were attacked as power holders, and ‘as we’ve seen with many other genocides, [they] were separated out, and most of them were immediately killed’.

Meanwhile, women and girls were captured, and ISIS ‘intended that they die slowly as ISIS property. They were enslaved, brutalised, raped, and denied adequate food and medical care’, says Ashraph. Many only returned to their community when individual ISIS members broke the crumbling Caliphate’s rules by selling women back to their families.

The long-term impact of these genocidal acts is as gendered as their commission. ‘In the rural population of Sinjar, Yazidi women and girls mainly interact with the world through male relatives. So the killing of men has a huge impact on the women’s ability to survive’, Ashraph says. ‘With hundreds of Yazidi men missing or dead, Yazidi women from Sinjar face a precarious existence in a society that has not encouraged their independence or given many of them the tools to live autonomously.’

Unless a surviving male relative can take responsibility for them, many Yazidi women seek or are forced into quick marriages for the sake of themselves and their surviving children. Ashraph says ISIS ‘also expected that by abducting and sexually enslaving Yazidi women and girls, their community would not accept them back if they survived and escaped’, in turn limiting the community’s ability to regenerate.

Many abducted young boys are still held by ISIS, or were killed. Returnees, Ashraph says, ‘are very traumatised. Many of these boys are now young men without adequate psychosocial support or pathways to continue their education and build a future for themselves. Where indoctrination has taken hold, the challenges are even more immense’. Some even pose a threat to their own community.

Ashraph says it’s clear that the genocide’s gendered impact is laced into its gendered commission, with particular consequences for different survivors. But justice mechanisms often fail to recognise these distinctions, partly because genocide has primarily been understood through its most visible prohibited act: the mass killing of men, which is often the first act of genocide. In the past, female survivors have participated in justice processes as witnesses to crimes against men, while crimes against them were not charged.

In the German universal jurisdiction cases, the level of recognition for the gendered aspects of the genocide has varied. In June 2021, Sarah O was specifically charged with, and convicted for, gender-based persecution as crimes against humanity, while others facing similar allegations were not. In a statement following Sarah O’s conviction, von Wistinghausen said, ‘for the first time ever, a court handed down a conviction for religious and gender-based persecution and this recognition is of utmost importance for our client and for all Yazidi women’.

For Ashraph, ‘We fail to understand the crimes being committed, the reasons why these crimes are being committed, when we take a gender-blind approach’. Experiences of the survivors are missed, undermining the reparative value of criminal accountability. ‘Where someone has been routinely ignored, treated poorly, attacked, and is then ignored in the process of accountability, it compounds trauma and it compounds a messaging that they are not valuable enough to warrant the time to do this properly’, she says.

It also reduces understanding of the context in the narrative built through trial transcripts. ‘By not investigating and indicting crimes more likely to be experienced by marginalised groups – including, notably, women and children – or by treating victims of certain crimes as just witnesses to murders of others, you are then rendering them invisible and replicating the exclusion that these groups have experienced’, Ashraph explains.

Although progress is being made, she says, gendered analysis can still be reductive. ‘We’re recognising what happens to boys and girls, to women, to LGBT community members, but often we’re only recognising that one crime happens to them’, Ashraph says. ‘Women, girls and young boys have multi-faceted experiences of violence, we can’t just put them in a box of a sexual violence survivor or child soldier. If their suffering is poorly understood, the routine othering of these groups is continuing. A gendered, intersectional approach is about recognising the full humanity of people.’

In the meantime, the Yazidi community has surprised experts by looking past gender norms to support its survivors, including embracing psychosocial support for male survivors, welcoming female survivors of sexual slavery and encouraging victims to speak out. ‘No-one foresaw the Yazidi community would mobilise to accept these women’, Ashraph says. ‘But one of the first things they did was accept these women back into the community, reiterate their Yazidi identity, and confirm they can be married.’ In doing so, this ancient, closed community, in the face of an almost successful attempt to annihilate them, ‘upended expectations and mitigated one of the impacts of ISIS’s genocide’.

Jennifer Venis is a freelance journalist and can be contacted at jennifer@jennifervenis.co.uk