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War crimes: Report calls for ICJ case over state failures to prevent Yazidi genocide

Jennifer VenisWednesday 21 September 2022

A report on state responsibility for the Yazidi genocide has claimed that Iraq, Syria and Turkey should be taken to the International Court of Justice (ICJ) for failing to discharge their obligations under international law.

The report, published by the Yazidi Justice Committee (YJC) in July, is the first to address state responsibility for the genocide perpetrated by terrorist group the Islamic State of Iraq and Syria (ISIS) in the mid-2010s. It focuses on the binding legal obligations enshrined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the ‘Convention’).

While national courts have convicted individual ISIS members for terrorism and crimes against the Yazidis, ISIS as an entity is a non-state actor and cannot be held accountable by the principal adjudicatory body for the Convention, the ICJ.

‘The architecture of international justice is generally crafted around state responsibility’, Aarif Abraham, an international lawyer and co-editor of the report alongside Aldo Zammit Borda and Tatyana Eatwell, tells Global Insight. ‘So this is where other aspects of state responsibility become really important, such as the duties to prevent, prohibit and punish genocide’.

The Convention requires all states to avoid complicity in genocidal acts, prohibit genocide in national laws and punish perpetrators. But it also places binding obligations on all states to take preventative measures from the moment the state could reasonably be aware there is serious risk of a genocide occurring.

‘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,’ says Abraham.

The genocide happened not just because a group of people came together and decided to commit those crimes, there was actually something bigger behind that, enabling that

Natia Navrouzov
Legal Advocacy Director, Yazda

Natia Navrouzov is a Yazidi lawyer and the Legal Advocacy Director at Yazda, an organisation advocating for survivors and supporting accountability efforts. She tells Global Insight that ‘state responsibility is very important because going after individuals remains important but we need to have the broader picture here and we need to be realistic. The genocide happened not just because a group of people came together and decided to commit those crimes, there was actually something bigger behind that, enabling that.’

Navrouzov describes the report as ‘crucial’, and her perception is that it was well-received by survivors, as state responsibility is an issue they have been raising for some time. ‘When we speak about accountability, they often ask “what about those states that actually facilitated or didn’t do anything about those crimes?” This question is crucial’, she adds.

The report claims that evidence supports a prima facie case against Turkey for complicity in the genocide, ‘on the basis 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’.

Regarding genocide prevention, the report alleges that Turkey should have known of the serious risk of genocide by June 2014, but ‘failed to take all means reasonably available that could have prevented the commission of genocide’, including: policing and halting the flow of ISIS fighters across Turkey’s borders; preventing the sale, transfer and enslavement of Yazidi woman and children within Turkey; and restricting ‘the illicit oil trade, which financially benefitted ISIS’.

The Turkish Ambassador to the UK, Ümit Yalçın, said the criticisms were baseless and unfair, and 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’.

‘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, the Yazidi homeland, and alleges a ‘failure’ by Iraq to ‘ensure the security’ of key areas facing continuing attacks.

Finally, Syria is alleged to have failed to prevent or disrupt ISIS’ activities on its territory, including failing to prevent 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.

The YJC also investigated whether ten other states, including the UK, breached their obligations or were complicit in the genocide, but failed to find sufficient evidential basis to support the relevant allegations.

Abraham hopes a state party to the Convention will use the report’s findings to begin proceedings at the ICJ. ‘The sooner the case is brought, the sooner the harm can be redressed’, he says. Beyond the normative force of ICJ decisions, which are seen as authoritative by the international community, a case could have a protective aspect, including the imposition of provisional measures to prevent further harm and repetition.

He adds that a case also puts possible perpetrators on notice, ‘in the sense that it necessarily entails conducting due diligence to prevent further harm, to investigate perpetrators, and prosecuting those who are apprehended. And that can have a deterrence effect if it’s done quickly and properly.’

Beyond that, he hopes the report will serve to remind all states of their obligations, of what they can practically do to end a genocide and prevent its recurrence, and of the potential consequences of their continued inaction.

Toby Cadman, Communications Officer of the IBA War Crimes Committee and joint head of chambers at Guernica 37 Chambers, says ‘attempts to seek accountability for state failures to prevent genocide are rare […] primarily due to the fact that enforcement of these obligations is contingent on political will.’

But it only takes one state to bring a case. Cadman highlights the ‘significant’ recent ICJ decision regarding the Gambia’s standing in a case against Myanmar, which determined all states have a common interest in the prevention, suppression and punishment of genocide by the fulfilment of obligations under the Convention.

The case highlights how a state party to the Convention can bring a case before the ICJ despite having no tie to the alleged crimes. ‘In the present era of impunity, there is a growing exigency for similar interventions, considering that affluent countries appear to be taking less responsibility for intervening against human rights abuses by other nations,’ says Cadman.

Image credit: Jonathan Stutz/AdobeStock.com

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