Prosecuting the Islamic State – Advice for the Iraqi Government on setting up a Trial for Genocide

by **Rocky** Tue 11 Oct 2016, 5:45 am

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Prosecuting the Islamic State – Advice for the Iraqi Government on setting up a Trial for Genocide

by Rocky Tue 11 Oct 2016, 5:45 am

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Since 2014, Iraq has been the scene of horrific atrocities committed by the Islamic State (IS, then called ISIL – Islamic State of Iraq and the Levant) against ethnic and religious communities that it considered anathema to its own hard-line interpretation of Islam.

Although the group was initially not considered a significant threat, its takeover of Fallujah in early 2014 and its subsequent blitz across Iraq in the summer of the same year, which saw major cities like Mosul and Tikrit falling to the group’s control, brought the world’s attention onto the group.

Following their capture of Mosul, the group declared themselves a caliphate, led by Abu Bakr al-Baghdadi (who posited himself as Caliph) and adhering to an extremist interpretation of the Islamic Law. Guided by this interpretation, the group proceeded to persecute every community that did not adhere to its twisted brand of Islam.

In the months that followed, the world witnessed the mass killings, forced conversions and sexual enslavement of Yazidis[You must be registered and logged in to see this link.] and Assyrian Christians[You must be registered and logged in to see this link.] and Shia[You must be registered and logged in to see this link.] as the main targets with [You must be registered and logged in to see this link.], Kurds and Sabean Mandeans also targeted. The group’s expulsion of Mosul’s Christians and the destruction of their cultural artefacts have been so severe that some analysts speculated that it may spell the end of Christianity in Iraq[You must be registered and logged in to see this link.]. Meanwhile, many kidnapped Yazidi children were brainwashed into becoming soldiers of the IS known as the Cubs of the Caliphate[You must be registered and logged in to see this link.] while a large number of Shia shrines and mosques, some centuries old, were destroyed[You must be registered and logged in to see this link.]. The severity and brutality of these acts compelled the US Secretary of State John Kerry to determine that the acts committed by the group constituted genocide after a unanimous vote in the House of Representatives on March 2016[You must be registered and logged in to see this link.].

Over the course of 2015 and 2016, the group has been steadily losing ground in Iraq. Today, Mosul is the only metropolitan centre it still holds in Iraq and its continued survival in the country has been cast in doubt. Many analysts are already looking into what comes next. However, just as it is important to prepare for what comes next, so is to ensure that the leadership of the organisation can be brought to justice.

This report seeks to offer recommendations to the Iraqi Government how to prosecute ISIL for genocide. It provides advice on how to approach the case, what preparations to make and how it can ensure that the process is expedited and comprehensive.

The International Criminal Court – The Rome Statute and the Articles of Relevance

The Rome Statute of the International Criminal Court consists of 128 articles that describe the crimes that fall under its jurisdiction, the structure of the court, the proceedings of the investigation and trial, as well as any other matters vital to its functions.

According to the Article 5 of the Rome Statute, the following crimes fall within the jurisdiction of the Court:

The crime of genocide;

Crimes against humanity;

War crimes;

The crime of aggression.

The crime of genocide is the main charge the Government of Iraq intends to pursue against the Islamic State. As such, Article 6 which defines genocide is of the greatest relevance for the purposes of this report. However, many of ISIL’s acts of genocide went alongside (or were achieved through) acts that fall under crimes against humanity or war crimes. As such, Articles 7 and 8 that cover these crimes respectively are also of relevance. Only the crime of aggression refers to the act of a state committing aggression against another state and is not applicable or fitting to the context of what has taken place in Iraq.

Genocide is defined under the Article 6 of the Rome Statute as any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group through:

Killing members of the group;

Causing serious bodily or mental harm to members of the group;

Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction, in whole or in part;

Imposing measured intended to prevent births within the group;

Forcibly transferring children of the group to another group[You must be registered and logged in to see this link.].

Crimes against humanity is defined under the Article 7 of the Rome Statute as a number of acts that are committed as part of a widespread, systematic attack directed against any civilian populations. These acts can include, but are not limited to murder, extermination, enslavement, forced deportation, imprisonment, torture, rape, forced pregnancy and sexual slavery[You must be registered and logged in to see this link.].

War crimes are defined under the Article 8 of the Rome Statute as a number of crimes that are committed as part of a plan or policy or as part of a large scale commission of such crimes that constitute grave breaches of the Geneva Convention such as wilful killing, torture, inhuman treatment, biological experiments, excessive destruction and appropriation of property not justified by military necessity, taking hostages, compelling prisoners of war and other protected groups to serve in the forces of a hostile power as well as other violations of the laws and customs of war[You must be registered and logged in to see this link.].

As described by Articles 11, 12 and 13, the Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute (1 July 2002) or following the date of a State becoming a Party to the Statute unless a declaration is made by the State permitting retroactivity of the Statute. Alternatively, a United Nations Security Council resolution is needed for jurisdiction over a non-signatory State[You must be registered and logged in to see this link.].

What has been described above is merely a brief summary of the ICC’s working order. The Articles of the Rome Statute are comprehensive in their coverage of the Court’s rules and regulations.

Collect and compile the publications, propaganda and public statements of the Islamic State to support the case for a genocide accusation: Compared to regimes and organisations responsible for genocides in the past, the Islamic State is unique for both its savvy in using the modern media and its utter openness in displaying its brutality. Since establishing its headquarters in Ar-Raqqa, Syria in 2013, the group has made a point of showing its militants killing dissidents and undesirables or destroying holy sites anathema to its beliefs in high-quality videos, justifying such acts in publications like the Dabiqmagazine. It has continued this trend during its offensive in Iraq in 2014, publishing many videos of its militants performing mass executions of Christians, Yazidi, Shia and other groups. Official statements from the group’s leadership have not only justified, but endorsed such acts, as well as acts of sexual enslavement[You must be registered and logged in to see this link.].

Horrific as such propaganda is, it may also hold the key towards prosecuting the group by proving genocidal intent (dolus specialis). The notion of proving intent when there are plenty of evidence showing militants on the act of genocide might seem redundant. However, mass killings often take many hands and while some may harbour intent to destroy a group, others may be motivated by revenge, following orders or generalised wartime sadism. Similarly, even when there is a policy of specifically targeting a group, the distinction between the goal to destroy and displace can be difficult to make. Acts of violence and intimidation aimed at displacement may be deemed to fall short of intent to destroy the group, in which case it constitutes crimes against humanity rather than genocide[You must be registered and logged in to see this link.].

The ICTY (International Criminal Tribunal for the former Yugoslavia – a predecessor to the ICC) prosecution of Goran Jelisić in 1999 has highlighted how a genocide case can collapse if the intent is not sufficiently established. Jelisić held a position of authority at the Luka prison camp during the Bosnian conflict, styling himself as the ‘Serb Adolf’. For the brutalities committed at Camp Luka, Prosecution charged him with genocide, war crimes and crimes against humanity. Jelisić pleaded guilty to war crimes and crimes against humanity but not genocide. In legal terms, the distinction is that;

The victims belonged to an identified group

The alleged perpetrator must have committed their crimes as part of a wider plan to destroy such group (Either locally or globally, as long as it constitutes a substantial part of the group)[You must be registered and logged in to see this link.]

During his command of Camp Luka, witnesses reported Jelisić making numerous comments on wanting to exterminate Muslims and Croatians and enslave those that survive, expressing hatred of the Muslims and that he wanted to cleanse the region of them and expressing the desire for the nearby town of Brcko (where the majority of the captives were taken from) to become a fully Serbian town. He was reportedly gleeful about killing captives on a daily basis and camp documents show that the majority of the victims were Muslims[You must be registered and logged in to see this link.].

However, witnesses also reported that some captives were spared or and others were provided exit documents on a seemingly random basis. Other captives were provided the documents after being forced to play Russian roulette. Witnesses also reported that when an official outranking Jelisić arrived at the camp, he requested that the prisoners not be killed so they can be used for exchanges and treatment improved considerably during such visits. The Trial Chamber concluded that in light of apparent lack of official policy for genocide and Jelisić’s own inconsistency with how he treated (or released) captives, they could not conclude, beyond reasonable doubt, that he was motivated by dolus specialis of the crime of genocide. The Trial Chamber opined that he was an unbalanced and sadistic individual who found himself with too much power he was not prepared for[You must be registered and logged in to see this link.]. As such, Jelisić was not found guilty of genocide.

The Jelisić case shows how narrow the definition of genocide is and highlights the importance of dolus specialis in distinguishing between genocide and crimes against humanity. For this reason, the Iraqi Government should be diligent in its efforts to collect and analyse ISIL propaganda so that the intent to commit genocide can be established beyond reasonable doubt. As most such propaganda is online, the government should ensure that they can be archived before they are taken down or deleted. The government should also note the instances of the militants releasing captives. In particular, effort must be taken to prove that instances where the militants released the elderly and infirm[You must be registered and logged in to see this link.] (who would be inconvenient to transport and unlikely to ensure the continuation of the group) or after a ransom was paid[You must be registered and logged in to see this link.] were borne out of pragmatic considerations and are not mutually-exclusive with dolus specialisof the crime of genocide.

Ensure that the Distinction and Convergence of the Islamic State crimes are recognised and understood: As mentioned above the Rome Statute of the ICC defines genocide as five distinct[You must be registered and logged in to see this link.] acts committed, with the intent to destroy, in whole or part, a national, ethnic or religious group[You must be registered and logged in to see this link.]. This way of defining genocide gives the Prosecution the legal flexibility needed to class a diverse range of acts and policies under it’s the definition of genocide. However, many of the specific acts committed by the group technically fall under crimes against humanity or war crimes instead of genocide. And just like the aforementioned issue of intent, proving that these crimes were committed with the end goal of genocide in mind, and should therefore be tried as such can be a difficult issue.

For instance, the mass rape and sexual enslavement of women, primarily (though not exclusively) belonging to Yazidi or Christian backgrounds would, on itself, class as a crime against humanity under Rome Statute Article 7(1, g). However, in taking these women away from their communities and killing most adult males they encountered, the Islamic State militants have effectively “imposed measures intended to prevent births within the group” as described under Article 6(d). Similarly, the kidnapping of many children often belonging to minorities brainwashing them to become the soldiers known as theCubs of the Caliphate would, on its own, come under Article 8(2, v)[You must be registered and logged in to see this link.]. However, in kidnapping and brainwashing these children, they have “forcibly transferred children of the group to another group” as described under Article 6(e). In both of these instances (as well as other acts such as displacement), the group’s policies have irrevocably threatened the long-term survival of the communities they targeted. Effectively, it can be argued that the crimes against humanity and the war crimes were committed with the goal of achieving genocide of the communities they targeted.

Therefore, the Iraqi Government should explore the legal feasibility to prosecuting ISIL members and leaders for genocide even if the specific crimes they are accused of do not fall under the definition of genocide. They should assess the short and long term damage communities the group targeted have suffered. They should also analyse how the group’s treatment of Sunni Muslims (who have also suffered under its rule) differed from the way they treated non-Sunnis to determine which of their acts was based on societal level and which ones targeted specific groups.

References:

[You must be registered and logged in to see this link.] Lauren Bohn, “’They Made us take the seat of Death’”, Foreign Policy Magazine, 19-September-2014, <http://foreignpolicy.com/2014/09/19/they-made-us-take-the-seat-of-death/>, [Accessed 19-July-2016]

[You must be registered and logged in to see this link.] Robert Spencer, “Islamic State murders 19 girls for refusing sex with jihadis, peddles sex slaves like ‘barrels of petrol’”, Jihad Watch, 06-August-2015, <https://www.jihadwatch.org/2015/08/islamic-state-murders-19-girls-for-refusing-sex-with-jihadis-peddles-sex-slaves-like-barrels-of-petrol>, [Accessed 14-July-2016]

[You must be registered and logged in to see this link.] Zack Beauchamp, “What ISIS has to gain by tweeting these photos of a massacre”, Vox Magazine, 16-June-2014, <http://www.vox.com/2014/6/16/5814900/isis-photos-horrifying-iraq>, [Accessed 19-July-2016]

[You must be registered and logged in to see this link.] Christian Caryl, “Mosul’s Christians Say Goodbye”, Foreign Policy Magazine, 18-June-2016, <http://foreignpolicy.com/2014/06/18/mosuls-christians-say-goodbye/>, [Accessed 19-July-2016]

[You must be registered and logged in to see this link.] Ash Gallagher, “The Islamic State’s Child Soldiers”, Al-Monitor, 03-April-2015, <http://www.al-monitor.com/pulse/originals/2015/04/lebanon-islamic-state-child-soldiers-syria-iraq-hrw-afp.html>, [Accessed 19-July-2016]

[You must be registered and logged in to see this link.] James Rush, “Ancient shrines become latest casualties of ISIS rampage: Islamic extremists demolish mosques and temples as they spread their carnage through Iraq”, The Daily Mail, 07-July-2014, <http://www.dailymail.co.uk/news/article-2683087/ISIS-wages-war-Shia-Muslims-Extremists-demolish-ancient-mosques-temples-spread-carnage-Iraq.html>, [Accessed 19-July-2016]

[You must be registered and logged in to see this link.] Elise Labott, Tal Kopan, “John Kerry: ISIS Responsible for Genocide”, CNN, 18-March-2016, <http://edition.cnn.com/2016/03/17/politics/us-iraq-syria-genocide/index.html>, [Accessed 12-July-2016]

[You must be registered and logged in to see this link.] Werle Jessberger, Principles of International Criminal Law, Oxford, Oxford University Press, 2014, pp. 558-559

[You must be registered and logged in to see this link.] Ibid, p. 558

[You must be registered and logged in to see this link.] Ibid, p. 559

[You must be registered and logged in to see this link.] Ibid, p. 563

[You must be registered and logged in to see this link.] Robert Spencer, “Islamic State murders 19 girls for refusing sex with jihadis, peddles sex slaves like ‘barrels of petrol’”, Jihad Watch, 06-August-2015, <https://www.jihadwatch.org/2015/08/islamic-state-murders-19-girls-for-refusing-sex-with-jihadis-peddles-sex-slaves-like-barrels-of-petrol>, [Accessed 14-July-2016]

[You must be registered and logged in to see this link.] Antonio Cassese, Guido Acquaviva, Mary Fan, Alex Whiting, International Criminal Law: Cases & Commentary, Oxford, Oxford University Press, 2013, p.209

[You must be registered and logged in to see this link.] Ibid, p. 210

[You must be registered and logged in to see this link.] Ibid, pp. 210-212

[You must be registered and logged in to see this link.] Ibid, pp. 211, 214

[You must be registered and logged in to see this link.] “Islamic State releases more than 200 captive Yazidis in Iraq”, Reuters, 08-April-2015, <http://www.reuters.com/article/us-mideast-crisis-iraq-yazidis-idUSKBN0MZ19220150408>, [Accessed 15-July-2016]

[You must be registered and logged in to see this link.] “Islamic State ‘releases Assyrian Christian Hostages’”, BBC, 22-February-2016, <http://www.bbc.co.uk/news/world-middle-east-35630196>, [Accessed 15-July-2016]

[You must be registered and logged in to see this link.] (a) Killing members of the group, (b) Causing serious bodily or mental harm to the members of the group, (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, (d) Imposing measures intended to prevent births within the group and (e) Forcibly transferring children to another group.

[You must be registered and logged in to see this link.] Werle Jessberger, Principles of International Criminal Law, Oxford, Oxford University Press, 2014, p. 558

[You must be registered and logged in to see this link.] Compelling a prisoner of war or other protected person to serve in the forces of a hostile power.

[You must be registered and logged in to see this link.]

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Prosecuting the Islamic State – Advice for the Iraqi Government on setting up a Trial for Genocide

Prosecuting the Islamic State – Advice for the Iraqi Government on setting up a Trial for Genocide

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