AUTHOR: EMILIJA LUKIĆ
Introduction‘’The future of international criminal justice is multi-tiered, with multiple co-existingcenters of gravity’’, Sareta Ashraph stated. (Co-Chair, IBA War Crimes Committee). 1 Asone of the continuing concerns to the global community, genocide is a core issue thatinternational legal systems and mechanisms need to tackle with. These acts of inhumannature have gotten recognized by the United Nations and global community. In the lightof present-day development of the legal world, it is a disturbing fact that the cases ofgenocide are increasing and are not being addressed properly. In this essay, I willanalyze the existing expulsion, suppression and the worst human acts directed againstthe Kurdish ethno-religious minority. I will cover the issues of ongoing crimes regardingindefatigable attempts to eliminate the whole community of Yazidis and exemplify a fewmatters that were brought before a court. A significant aspect of covering this topic isthe acknowledgment and involvement of many organizations, governments and theglobal community as whole. For the victims of genocide to seek consolation andrecovery, it is fundamental for the terrorists to be brought to justice. However, the legalbasis that needs to engage in solving these crimes is still not established.
Yazidi Background
Throughout the history, people were marginalized for being of certain ancestry andbeliefs, for affiliation to a unique group and heritage. With this in mind, since Yazidi’slack clear identity, they are commonly labeled as Kurds or Arabs for inhabiting theterritories of Turkey, Syria, Iraq and diaspora. Cosmogony behind the Yazidi religionconsists of a postulate that the God, who is prayed upon five times a day, created theworld and then left it in control to seven divine beings. As a monotheistic religion withelements of Zoroastrism, Judaism, Christianity and Islam, tenets of this credence aredifferent than of majority in the region, and are often misinterpreted. The believersare characterized as ’’devil worshippers’’, for their central figure being Malak Tawus, that is considered equal to Satan (Shaytan in Islam). 3 Based on the demonization of this system of beliefs, Yazidis have been suppressed from Abbasid period and Ottoman Empire to date. Furthermore, the ongoing involuntary conversion to Islamic faith and the crimes directed towards eliminating the entire community are due to their unique prayer rituals, lack of secular scripts, belief in reincarnation and other religious practices. Having that said, the genocide against this minority is justified for misconception under the influence of islamic ideology. Above all, it seems vital to remember that no atrocious act shall be condoned on the account of religion. The number of questions about the clasification of these acts were raised, impacting on bodies of competence to create a legal definition and basis for the punishment.
Is it ethnic cleansing or genocide?
Human rights are based on freedom, equality and solidarity 4 . According to that statement, the ability to make choices and ensuring of justice and fairness, while securing social and economic rights among all people, is a cornerstone to a successful establishment of civil and constitutional liberties. The Yazidis have been deprived of these human rights due to historical and ongoing persecution, specifically by ISIL(Islamic State of Iraq and the Levant).
Unfortunately, for heinous acts to be acknowledged as a significant issue both regionally and internationally, they often must escalate to a larger scale. In the early hours of 3 August 2014, the Yazidi people were attacked by Islamic State militants, who perished and forced men to flee and captivated women as sex slaves referred to as ‘’sabaya’’. Many people were exiled on Mountain Sinjar and were subjected to acts of terrorism. Although some victims accomplished to escape, they remain permanently traumatized. Meanwhile, thousands of others remain in captivity, with their fate or whereabouts unknown.
The important question of whether this persecution was ethnic cleansing or genocide was raised. In order for these crimes to be distinguished, it is crucial to determine the motive and observe the actions. While the ethnic cleansing is defined as a mass and forced expulsion and imprisonment of members of certain religious, ethnic, or racial groups, these particular doings must be characterized as genocide. Reasoning behind this is to eradicate the whole community and not merely to displace it. The bodies of competence have cooperated to develop global-consensus and recognition of the gravity of these acts by implementing the legal interpretation while formulating the mandatory prevention and incrimination of such. However, are existing groundwork and effort sufficient?
United Nations and other bodies
The United Nations formally codified the crime of genocide in the Convention on the Prevention and Punishment of the Crime of Genocide in 1948, which is conclusive to date. This convention established legally binding obligations for all signatory states to prevent and punish genocide, developed a legal definition for it, as acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group. The UN has since reinforced these legal principles through various tribunals and international courts, such as the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Tribunal for the Former Yugoslavia (ICTY), and the International Criminal Court (ICC), ensuring accountability for those responsible for genocide. 5 The UN requires the states to prevent and punish criminal acts that were committed by the members Islamic State (Daesh). While there is an assertion that justice needs to take place in Iraq, the International community needs to recognize and penalize atrocious acts on the basis of universal jurisdiction. Under the Human Rights Council, The Independent International Commission of Inquiry on the Syrian Arab Republic was established on 22 August 2011. The authority of the Commission was to investigate this matter, attempt to identify the criminals who violated the law, and secure their
prosecution. The UNITAD for conducting the investigation on perpetrators of attacks, terrorism and mass executions has finalized initial case brief addressing the legal definition of the crimes that were carried out against Yazidi community. 6 Significant partner of UNITAD is The National coordinating committee, that undertakes specific activities and has strategic groundwork for managing the central problem. Likewise, the partnership with Iraqi government is fundamental in the process of holding the members of ISIL responsible and to operate investigative strategy.
Iraqi Council of Representatives is putting out the effort to adopt a legislation to establish legal basis for the prosecution of ISIL members in Iraq, for crimes against humanity, war crimes and genocide. There are still crucial steps that need to be made in order to accomplish complete accountability for their crimes. The identity and activities of priority people have been confirmed and are corroborated with evidentiary documents and findings. In March 2021, the Yazidi Survivors’ Law was adopted, with provisions for compensation of victims. Although it consists of a legal framework to criminalize genocide, on the territory where it began, it is still not implemented. Nevertheless with the current legal foundation and improved regulations and principles, there are several judicial actions conducted regarding this issue.
Is justice completely served?
The first-ever trial for genocide of an ISIL member against Yazidis was carried out in Germany. Convicted Taha Al J. intended to eradicate Yazidi community by holding a woman and her five-year-old daughter captive. They endured torture, were stripped of their dignity and human decency and forced into slavery, which caused severe psychological and physical trauma, ultimately leading to the death of a young girl.The Higher Regional Court of Frankfurt ruled that the defendant guilty of crime against humanity, sentencing him to life imprisonment and ordering compensation for damages. The Federal Court of Justice upheld this decision, asserting its authority based on the principles of universal jurisdiction for war crimes, crimes against humanity and the crime of genocide. This was a first step toward justice for the Yazidi people. Furthermore, the identification of the perpetrators and involvement of International Courts based of comprehensive authority and recognition of this acts as genocide were important for other prosecution to progress.
For example, at a trial in Hague, a Dutch woman named Hasha Aarab was found guilty of being a member of a terrorist organization and committing a war crime. She, along with her husband, a member of ISIL, enslaved and mistreated two women in Syria. Similarly, the Court in Germany sentenced Jalda A. to over five years in prison, for supporting the genocide, holding captive and abusing a Yazidi woman. It is important to emphasize that for victims to receive justice and emotional relief, the sentences for the perpetrators must be appropriate and fair. Ultimately, while the defendants may eventually regain their freedom and reunite with their families after serving their sentences, this will never be the case for the Yazidis who endured the attacks.
Conclusion
In the final analysis, the international community should offer the protection and encourage the well-being and recovery of the vulnerable and attacked group of Yazidis. The global society, instead of perpetuating the distress of the victims, may provide them with solace for the endured agony and traumas by prosecuting the perpetrators of wrongdoings. As Nadia Murad, a Nobel Peace Prize Laureate, stated: ‘’Where impunity is accepted, violence is repeated’’(In her address to the Council of Representatives in 2017), UNITAD must pursue the fulfillment of justice. The impact that this topic had on law is crucial for further recognition of crimes against humanity and genocide and acceleration of a thought that terrible acts will not be tolerated in modern-day society and legal systems, hence will be appropriately punished . Despite the horrors they endured, Yazidis cooperate to rebuild their homeland, advocate for freedom and responsibility, as well as believe that legal authority for the crimes is essential for their recovery.
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