17 - Kathleen Vella

Kathleen Vella Prosecuting ISIS for committing crimes against humanity and genocide against the Yazidis: The implications and limitations under International Law

Dr Kathleen Vella read for a Bachelor of Laws with International Relations (2012) and Doctor of Laws (2015) at the University of Malta. She is highly interested in matters related to human rights, and for that purpose, wrote her Doctoral thesis on challenging the unlawful detention of asylumseekers in light of the ECtHR judgments against Malta. She has also written a number of articles on the promotion and protection of human rights. Upon graduation, she joined the diplomatic corps, and is currently reading for an LL.M in Diplomacy and International Law.

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1. Introduction

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uring the past decades, the rise and expansion of terrorist organisations has posed a great challenge to contemporary international law. The Islamic State of Iraq and Syria (hereinafter referred to as ISIS), being one of many such organisations, has been particularly difficult due to its transnational operations and members hailing from every corner of the world. Whilst its members have been committing terrorist attacks across the globe, this article will only address the atrocities committed against the Yazidis, an ethno-religious minority, in Iraq and Syria.

Although the international community has been categorical in its affirmation that ISIS has committed genocide and crimes against humanity against the Yazidi population;, in practice, the prosecution of perpetrators is proving much more difficult than expected. In this context, this article will first analyse the definitions of genocide and crimes against humanity, which will be followed by a brief contextual introduction to ISIS and the atrocities it has committed against the Yazidis. The third part of this article will examine the legal challenges in prosecuting perpetrators and will attempt to propose the best forum wherein the perpetrators acting on behalf of ISIS could be prosecuted for the said atrocities.1

2. Defining genocide and crimes against humanity under international law One can argue that mankind tends to progress (or regress) at a much quicker pace than legal instruments foresee, and this often renders us relatively unable to wholly address, from a legal perspective, the horrors as they unfold. Whilst the drafting of specific conventions on genocide and war crimes have alleviated some of the unclarity surrounding the definition and commission of such crimes, the same cannot be stated with regard to crimes against humanity for which no codified instrument exists to date.

A proposed ‘Convention on the Prevention and Punishment of Crimes Against Humanity’ has been drafted which borrows the same definition from 1 This article will not examine the actions carried out by the Iraqi and Syrian States prior to, concurrently, during, or following the attacks by ISIS.

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Both genocide and crimes against humanity constitute jus cogens creating erga omnes obligations on all States. In other words, since the perpetrators of such acts are considered to be hostis humani generis, that is, an enemy of all of mankind, a State does not need to be directly affected or involved in order to prosecute perpetrators of such crimes, due to the intrinsic horrendous elements of the crimes which impact all of mankind. Developments in customary international law have translated this into the potential exercise of universal jurisdiction due to the atrocities’ shocking features, and in order to guarantee that perpetrators do not go unpunished. This section will delve into the common and distinguishing characteristics of genocide and crimes against humanity; however, the scope of the respective provisions may be summed up by the case of Prosecutor v. Akayesu, wherein it was held that ‘the crime of genocide exists to protect certain groups from extermination or attempted extermination’, whereas the crime against humanity is intended ‘to protect civilian populations from persecution.’3 2.1 Genocide According to Article II of the Convention on the Prevention and Punishment of the Crime of Genocide4 and Article 6 of the Rome Statute5: 2 For further information on the drafting process and comments received on the proposed Convention, one may visit the Analytical Guide to the Work of the International Law Commission on ‘Crimes against humanity’ http://legal.un.org/ilc/guide/7_7.shtml accessed 5 August 2019.

3 Prosecutor v. Jean-Paul Akayesu (Judgment) ICTR-96-4-T (2 September 1998) para 469 <http://unictr.irmct.org/sites/unictr.org/files/case-documents/ictr-96-4/trial-judgements/en/980902.pdf> accessed 1 August 2019.

4 Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) (Genocide Convention). <https://www. ohchr.org/en/professionalinterest/pages/crimeofgenocide.aspx> accessed 3 July 2019.

5 Rome Statute of the International Criminal Court [as amended] (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 38544 <https://www.International Criminal Court-cpi.

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‘genocide’ means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to 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; (e) Forcibly transferring children of the group to another group.

If one dissects the above definition, one would establish that genocide contains three cumulative elements: the commission of a crime from the exhaustive list; the intent to destroy, to one degree or another; and a targeted group which falls within one of the enlisted four groups. Interestingly, ‘in whole or in part’ implies that the actual number of people affected is not explicitly set out and that what is relevant for there to be genocide is the commission of the act against a group of people, specifically due to their identifiable membership to one (or more) of the mentioned groups. This distinguishable characteristic is one of the most essential features of genocide, and one which is absent from the definition of crimes against humanity.

As for intent, reference should be made to the Rutaganda Trial Judgement of the International Criminal Tribunal for Rwanda (ICTR) wherein the Tribunal delved into the vital components of specific intent and held that, [f]or any of the acts charged to constitute genocide, the said acts must have been committed against one or more persons because such person or persons were members of a specific group, and specifically, because of their membership in this group. Thus, the victim is singled out not by reason of his individual identity, but rather on account of his being a member of a national, ethnical, racial or religious group.6 int/resource-library/Documents/RS-Eng.pdf> accessed 23 July 2019.

6 Prosecutor v. Georges Anderson Nderubumwe Rutaganda (Judgement and Sentence)

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Although this might suggest that genocide may be straightforward to prove and prosecute, in practice, and to the dismay of victims, it would appear that a narrower definition of ‘genocide’ tends to be afforded. This can be demonstrated by the case of the Former Yugoslavia in the 1990s wherein, whilst recognising that atrocities had indeed been committed, Bosnian Muslims in Srebrenica were found to be victims of ethnic cleansing, rather than genocide due to the difficulty of proving intent. The International Court of Justice found that: [it was] however not convinced, on the basis of the evidence before it, that it has been conclusively established that the massive killings of members of the protected group were committed with the specific intent (dolus specialis) on the part of the perpetrators to destroy, in whole or in part, the group as such. The Court has carefully examined the criminal proceedings of the ICTY and the findings of its Chambers […] and observes that none of those convicted were found to have acted with specific intent (dolus specialis). The killings outlined […] may amount to war crimes and crimes against humanity, but the Court has no jurisdiction to determine whether this is so. In the exercise of its jurisdiction under the Genocide Convention, the Court finds that it has not been established by the Applicant that the killings amounted to acts of genocide prohibited by the Convention. 7 In other words, whilst the absence of the specific intent would not exclude the finding of war crimes or crimes against humanity, intent is a sine qua non element of genocide.

2.2 Crimes Against Humanity This article has already delved into the lack of a codified instrument addressing crimes against humanity. In this case, and until the proposed Convention is adopted, the guiding document is the Rome Statute. According to Article 7 of the said Statute, crimes against humanity are defined as: ICTR-96-3-T (6 December 1999), para 60 <https://unictr.irmct.org/sites/unictr.org/files/case-documents/ictr-96-3/trial-judgements/ en/991206.pdf> accessed 7 July 2019.

7 Application of the Convention on the Prevention and Punishment of the Crime of Genocide case (Bosnia & Herzegovina v. Serbia & Montenegro) (Judgment) [2007] ICJ https://www. icj-cij.org/files/case-related/91/091-20070226-JUD-01-00-EN.pdf accessed> 2 July 2019.

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any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.8 Therefore, for crimes against humanity to be committed, there must 8 Rome Statute of the International Criminal Court [as amended] (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 38544 <https://www.International Criminal Court-cpi. int/resource-library/Documents/RS-Eng.pdf> accessed 23 July 2019.

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be the presence of any of the eleven crimes enlisted in the article which form ‘part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.’ However, unlike genocide, the victims do not need to belong to a specific group, and the victims are members of the civilian population, indiscriminately and irrespectively of any distinctive feature which may distinguish them as belonging to a specific group. In this sense, whereas genocide may only be committed against four certain types of groups, crimes against humanity have a broader application.

No specific intent (as contained in the definition of genocide) needs to be proven in crimes against humanity.

The reference in Article 7(2)(a) to ‘a State or organisational policy to commit such attack’ is also of utmost relevance since it confirms that the perpetrator does not necessarily need to be a State actor. Moreover, this clause also excludes individuals who commit such crimes on their own volition and who are not affiliated with any organisation or State. Questions arose in the Tadic case as to whether crimes against humanity may only be committed by a State actor or not. The said case concluded that a link to the State is not required and that crimes against humanity can be committed by ‘forces which, although not those of the legitimate government, have de facto control over, or are able to move freely within defined territory.’9 In Katanga, the Chamber also held that, ‘such a policy may be made either by groups of persons who govern a specific territory or by any organisation with the capability to commit a widespread or systematic attack against a civilian population.’10 Another challenging aspect of crimes against humanity is the fact that the enlisted crimes also tend to constitute crimes under ordinary domestic criminal legislation if the chapeau of a ‘widespread of systematic attack against a civilian population’ is not present. Establishing and proving this link is crucial since otherwise one would only be able to prosecute for the respective ordinary crimes enlisted in the article, rather than crimes against humanity.

9 Prosecutor v. Dusko Tadic aka Dule (Opinion and Judgment) ICTY IT-94-1-T (7 May 1997) para 654 <www.icty.org/x/cases/tadic/tjug/en/tad-tsj70507JT2-e.pdf> accessed 2 August 2019.

10 Prosecutor v. Germain Katanga & Mathieu Ngudjolo Chui (Pre-Trial Chamber I) ICC-01/04-01/07 (30 September 2008) para 396 <https://www.icc-cpi.int/CourtRecords/ CR2008_05172.PDF> accessed 10 August 2019.

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3. ISIS and the Yazidis 3.1 ISIS as a Non-State Armed Actor In the past, atrocious acts, as the ones under discussion, were mostly committed by States, and therefore the commission of such acts by terrorist organisations such as by ISIS and Boko Haram, amongst several others, has questioned the extent to which international legal instruments, which were traditionally applied against State actors, could now be enforced against non-State actors. ISIS’s actions in themselves raise legal concerns. If one assumes that it is only the State itself who could use legitimate force within its own territory, then it would follow that non-State actors would be acting unlawfully if they use force within a sovereign State. In addition, the modus operandi of ISIS has challenged principles which the drafters of international legal instruments had had in mind, since ISIS not only operates transnationally across State Parties through terrorist attacks, but also in territories over whom the International Criminal Court has no jurisdiction since they are nonState Parties, such as in Syria and Iraq.11 ISIS, a non-State armed actor, can be described as a highly organised splinter group of the Al Qaeda terrorist organisation, which advanced owing to the power vacuum and lawlessness it found in Iraq and Syria. ISIS, led

by Abu Bakr Al Baghdadi, overtook its parent organisation not only with regards to conquered territory, but also in terms of the numbers of recruited fighters and financial resources.12 In order for a non-State armed group to be recognised as such, the said group, (i) with its own identity and (ii) chain of command, (iii) should have the potential to employ arms through the use of force to achieve political, ideological, or economic objectives, (iv) should not pertain to any formal military structure of a State, State alliance, or intergovernmental organisations, and (v) should not be under the control of the State wherein they operate.13 In the past, ISIS would have been immune from prosecution since it was necessary to establish an explicit link of the perpetrator to a State. This 11 This will be examined in Section 3.2.1.

12 Evan Tyner, ‘EIP Explainer: Understanding Daesh/ISIS’ (European Institute for Peace) <http://www.eip.org/en/news-events/eip-explainer-understanding-daeshisis> accessed 7 July 2019.

13 OCHA, ‘Humanitarian Negotiations with Armed Groups: A Manual for Practitioners’ January 2006 p23 <https://www.unocha.org/sites/unocha/files/HumanitarianNegotiationswArmedGroupsManual.pdf> accessed 17 July 2019.

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was removed in 1998 through the amendments to the Rome Statute which instead, added the possible connection to an organisation, rather than to a State. Therefore, the terms ‘directed’ or ‘policy’ in the definition of crimes against humanity and the obligation of all States to prevent a nd punish the commission of genocide suggest, irrespective of who the actor is, that ISIS could not escape justice solely due to the fact that the actions committed were not attributable to a particular State. Whilst one has already referred to the Katanga case, wherein a member of an armed group was convicted of crimes against humanity, we have more recently witnessed the arrest and conviction of more non-State actors for other crimes before the International Criminal Court; most notably, militia leaders of the Democratic Republic of Congo for war crimes and crimes against humanity, of a member of Al Qaeda for the destruction of cultural property in Timbuktu, and of a non-State actor who had forces under his command in the Central African Republic for crimes against humanity.14 3.2 Atrocities against the Yazidis in Iraq and Syria Sinjar, a city situated in northern Iraq, was the home of the majority of Yazidis, an ethno-religious minority whom ISIS publicly perceived as infidels.

With the practical impossibility of converting into Yazidi, and with the requirement of having both parents Yazidi, the Yazidi population remained a very close-knit society which was reluctant to marry out of their faith.

The earlier attacks commenced in early August 2014, when ISIS terrorised Sinjar by killing some members, kidnapping others, and forcing others to flee. The attacks on the 3rd of August 2014 were extremely organised and in concert with other simultaneous attacks from all sides of Sinjar, leaving Sinjar and the Yazidi population practically defenceless. Within a few hours of the attack, the Yazidis were trapped without the ability of escaping the knowingly forthcoming horrors. Few managed to escape to Mount Sinjar, to whom international efforts attempted to deliver aid and evacuate them; however, hundreds lost their lives in the process.

14 Prosecutor v. Bosco Ntaganda ICC-01/04-02/06 <https://www.International Criminal Court-cpi.int/CaseInformationSheets/NtagandaEng.pdf>; Prosecutor v. Admad Al Faqi Al Mahdi ICC-01/12-01/15 (27 September 2016) <https://www.International Criminal Court-cpi.int/ CaseInformationSheets/Al-MahdiEng.pdf>; <https://en.unesco.org/courier/2017-october-december/ahmad-al-faqi-al-mahdi-i-plead-guilty> accessed 2 August 2019; Human Rights Watch, ‘Central Africa Republic/ICC: New Chance for Justice- ICC takes custody of first suspect in second investigation’ (Nairobi, 19 November 2018) <https://www.hrw.org/news/2018/11/19/ central-african-republic/icc-new-chance-justice> accessed 3 August 2019

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More than half a million Yazidi individuals have been killed or displaced. In November 2014, the United Nation’s Independent International Commission of Inquiry on the Syrian Arab Republic (IICISAR) concluded that: As an armed group bound by Common Article 3 of the Geneva Conventions and customary international law, ISIS has violated its obligations toward civilians and persons hors de combat, amounting to war crimes. In areas where ISIS has established effective control, ISIS has systematically denied basic human rights and freedoms and in the context of its attack against the civilian population, has perpetrated crimes against humanity.15 In the first quarter of 2015, the investigation head of the United Nations, Mr Suki Nagra, stated that the attacks which had been committed against the Yazidis were well-organised and planned and were therefore not random and coincidental.16 The unequivocal finding that genocide may have been committed against the Yazidis came in mid-2016 when IICISAR declared that: ISIS has committed, and continues to commit, the crime of genocide, as well as multiple crimes against humanity and war crimes, against the Yazidis. [...] ISIS seeks to destroy the Yazidis in multiple ways, as envisaged by the drafters of the 1948 Genocide Convention.17 Apart from the displacement from Sinjar (Iraq) into Syria, systematic violations were committed against the Yazidis who were captured, which included the forced segregation of Yazidi men and women into three groups: males over 12 years of age, women and children, and boys aged 7 and above, with each group facing further abuse, along with other measures so as to prevent the birth of Yazidi children as well as forced impregnation of Yazidi women so as to change the demographics of the Yazidi.18 15 Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, ‘Rule of Terror: Living under ISIS in Syria’ (2014) UN doc A/HRC/27/CRP.3 para 74.

16 Stephanie Nebehay, ‘ICC should prosecute Islamic State for Iraq genocide, war crimes: U.N.’ (Reuters) (Genva, 19 March 2015) <https://www.reuters.com/article/us-mideast-crISIS-iraq-un/icc-should-prosecute-islamic-state-for-iraq-genocide-war-crimes-u-nidUSKBN0MF0TX20150319> accessed 11 July 2019.

17 UN Human Rights Council, “They came to destroy”: ISIS Crimes Against the Yazidis’ UN doc A/HRC/32/CRP.2 15 June 2016 para 202 <https://www.ohchr.org/Documents/HRBodies/HRCouncil/CoISyria/A_HRC_32_CRP.2_en.pdf> accessed 1 August 2019.

18 Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, ‘Rule of Terror: Living under ISIS in Syria’ (2014) UN doc A/HRC/27/CRP.3 para 57: ‘The

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The membership component found within the definition of genocide is also considered to be fulfilled since the Yazidis are considered to be an ethnoreligious group. Whilst disagreements and unclarity surround the notion of whether Yazidis are a distinct religious group or not, the jurisprudence from both the ICTY and the ICTR suggests that the perception of the perpetrator is vital and is to be taken into account. ISIS’s perception that the Yazidis are ‘infidels’ is hence both significant and essential.19 On the other hand, one could argue that ISIS’s desire to conquer and control the territory within Sinjar, coupled with the sexual pleasure derived from kidnapped Yazidi girls and women, might contradict the specific intent to destroy the group. However, a closer look at the horrors committed would demonstrate that the intent to destroy was specific due to the fact that the attack was explicitly aimed at the eradication of the Yazidis, rather than a generic desire to conquer land and/or sexual gratification. This attack may be compared to accounts by other individuals living in Sinjar who confirmed that Arab individuals living in the same area were allowed to remain without suffering the same fate as their Yazidi counterparts. On this comparison, the report ‘“They Came to Destroy”: ISIS Crimes Against the Yazidis’ states that: No other religious group present in ISIS-controlled areas of Syria and Iraq has been subjected to the destruction that the Yazidis have suffered. Arab villagers who did not flee Sinjar in advance of the ISIS attack were allowed to remain in their homes, and were not captured, killed, or enslaved. While the Christian communities still living in ISIS-controlled territory live difficult and often precarious existences, are viewed with suspicion, and are vulnerable to attack if ISIS perceive they are seeking protection from non-aligned forces, their right to exist as Christians within any Islamic state existing at any point in time, is recognised as long as they pay the jizya tax. Under ISIS’s radical interpretation of Islam, however, it is impermissible for Yazidis to live as Yazidis inside its enslavement of Yazidi women was undertaken as part of ISIS’s attack on civilian communities considered to be infidels. Their treatment in unlawful confinement and stated motivation behind their capture and enslavement demonstrates the intent of ISIS to forcibly impregnate and thereby affect the ethnic and religious composition of the group. Undertaken as part of a widespread and systematic attack, these acts amount to the crimes against humanity of enslavement, rape and sexual violence.’

19 ibid para 37: ‘ISIS regards Yazidi Kurdish community as infidels and their religious practices, ‘deviant’.

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so-called caliphate because they are not People of the Book.20

4. Limitations of international law The following section will deal with the legal challenges and limitations of prosecuting and holding ISIS accountable for the horrors they have committed in Iraq and Syria.

4.1 Who should be prosecuted?

The seemingly spectacular rise of ISIS, along with the West’s lack of preparation and underestimation of its potential, were in themselves tempting to many foreign fighters. This was reinforced with ISIS’s establishment of the ‘Caliphate’ in parts of Iraq and Syria which made it seem all the more powerful. Thousands of European foreign fighters voluntarily joined ISIS and, as they return home, fears arise as to the manner with which they should be dealt with: whether to prosecute them for joining a terrorist organisation; to prosecute them for acts committed whilst in Iraq and Syria; or whether greater focus should be afforded to deradicalization. In several States, both joining a terrorist organisation and travelling abroad to conflict zones are now considered to be crimes, and prosecution for such crimes may be quite straightforward; however, prosecuting perpetrators for the atrocities committed in Syria and Iraq may prove to be more challenging than desired.

ISIS is an extremely well-planned organisation with an established hierarchy. The question which one should therefore delve into is who, from the hierarchy, should be prosecuted. The answer lies in Article 258 of the Rome Statute, which explicitly states that whosoever commits such a crime within the jurisdiction of the International Criminal Court, shall be both individually responsible and liable. This degree of participation varies from the actual commission of an act (individually or jointly, through orders or solicitation), to facilitating, aiding or abetting the commission of a crime.21 However, in the history of the International Criminal Court’s prosecutions, due to the lengthy 20 UN Human Rights Council, “They came to destroy”: ISIS Crimes Against the Yazidis’ UN doc A/HRC/32/CRP.2 15 June 2016 para 162 <https://www.ohchr.org/Documents/HRBodies/HRCouncil/CoISyria/A_HRC_32_CRP.2_en.pdf> accessed 1 August 2019.

21 Rome Statute of the International Criminal Court [as amended] (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 38544 <https://www.International Criminal Court-cpi. int/resource-library/Documents/RS-Eng.pdf> accessed 23 July 2019.

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procedure and resources required for a prosecution to take place before the International Criminal Court, only those at the top of the hierarchy tend to actually be prosecuted.

Reference must also be made to the principle of active personality which has at times been considered as the ‘easiest’ method of exercising jurisdiction over members of ISIS. This would mean that members of ISIS, who are nationals of International Criminal Court State Parties, would fall within Article 12(2)(b) of the Rome Statute, and may therefore be prosecuted in the domestic courts of their home State. However, a contrario sensu, this would mean that those at the highest echelons of ISIS’s hierarchy would escape prosecution, since they are mostly from non-State Parties. Whilst prosecuting members of the lower hierarchal levels of ISIS may set an example and act as a deterrent, the seeming impunity of the higher and more responsible individuals is frustrating, to say the least.22 4.2 Who could and should prosecute?

For justice to be served, there must be a court or tribunal which would be competent to hear such cases. Prosecution of such crimes may take place in three different fora: (i) before the International Criminal Court; (ii) through the setting up of ad hoc tribunals or hybrid courts; or (iii) by national courts in virtue of the principle of universality, territoriality or personality.

4.2.1 Prosecution by the International Criminal Court Individual criminal responsibility is at the fulcrum of the International Criminal Court, irrespective of whether the perpetrator is a State actor or not.

One of the most significant benefits of the International Criminal Court is its permanent structure as well as its explicitly laid out provisions in its Statute to prosecute perpetrators of genocide, crimes against humanity, war crimes and crimes of aggression.23 The International Criminal Court is governed by the principle of complementarity and is only able to exert its jurisdiction if the States concerned do not prosecute the perpetrators themselves. Since 22 Anna Marie Brennan, ‘Prosecuting ISIL before the International Criminal Court’ (American Society of International Law, 17 September 2015) <https://www.asil.org/insights/ volume/19/issue/21/prosecuting-isil-international-criminal-court-challenges-and-obstacles accessed> 1 July 2019.

23 Rome Statute of the International Criminal Court [as amended] (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 38544, Article 5 https://www.International Criminal Court-cpi.int/resource-library/Documents/RS-Eng.pdf accessed 23 July 2019.

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the crimes committed against the Yazidis by ISIS constitute crimes which are explicitly mentioned in the Rome Statute, the International Criminal Court has both the material and temporal jurisdiction to prosecute.

According to Article 12 of the Rome Statute, the International Criminal Court has jurisdiction solely over crimes committed within the territory, or by nationals, of its State Parties.24 This is mainly problematic since neither Syria nor Iraq are State Parties, as well as due to the fact that the leaders of ISIS are often nationals of non-State Parties - as this article has already mentioned. This would mean that in reality, in the current context, although unlikely due to the past practices of the International Criminal Court, charges before the International Criminal Court may only be brought against ‘foreign fighters’ who are nationals of State-Parties and who would have committed such crimes on non-State Party territory in virtue of the active personality principle.

Another method for the International Criminal Court to be able to prosecute perpetrators for crimes committed in non-State Parties is through a referral by the United Nations Security Council, as provided for in Article 13(b) of the Rome Statute. This has already been enforced twice in the cases of Darfur (in virtue of resolution 1593 of 2005) and Libya (in virtue of resolution 1970 of 2011). Although the original attempt to grant the International Criminal Court the authority to investigate the commission of horrendous crimes and the ‘widespread violations of human rights and international humanitarian law committed in a pervasive climate of impunity by the Syrian authorities and pro-government militias as well by non-State armed groups’, was supported by over 60 countries, the referral was blocked by China and Russia, two permanent members on the Security Council.25 Another possibility is for the affected non-State Parties, that is Syria or Iraq in this case, to submit themselves to the jurisdiction of the International Criminal Court in virtue of Article 12(3) which states that in order for the Court to exercise jurisdiction in a non-State Party, the said State would need to ‘accept the exercise of jurisdiction by the Court with respect to the crime in 24 Rome Statute of the International Criminal Court [as amended] (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 38544 https://www.International Criminal Court-cpi. int/resource-library/Documents/RS-Eng.pdf accessed 23 July 2019.

25 UN News Service, ‘Russia, China block Security Council referral of Syria to International Criminal Court’ (22 May 2014) <https://news.un.org/en/story/2014/05/468962-russia-china-block-security-council-referral-syria-international-criminal-court> accessed 7 July 2019.

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question’.26 This may be quite complex since it would require the agreement between the United Nations and the affected State/s, some of which may not be in a position to negotiate due to their internal state of affairs. Moreover, this might also subject members of the respective national authorities to scrutiny and investigation for crimes committed under their watch, and thus such States might be reluctant to accept the exercise of the International Criminal Court’s jurisdiction.

4.2.2 Prosecution by an ad hoc tribunal or hybrid court Following the horrors of ethnic cleansing in the former Yugoslavia, and Rwandan genocide, the international community recognised the necessity of establishing and improving tools with which they could prevent and prosecute such acts, as well as of the possibility of setting up ad hoc international criminal tribunals. Ad hoc tribunals were set up for both horrors through the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), respectively. An international criminal tribunal may be set up as a subsidiary organ of the United Nations Security Council, owing to the fact that the Security Council has been given the power to deal with threats to peace in virtue of Articles 39-42 of the United Nations Charter. The setup of such tribunals would be in accordance with the rule of law and international human rights instruments, and may only enforce universal criminal offences such as genocide, crimes against humanity and war crimes. Since ISIS’s actions are indeed considered to be threats to the peace, it would be fair for one to assume that the establishment of such an ad hoc tribunal would be considered favourably by several States and members of the international community, and perhaps as the most feasible solution. Sweden is one of the most vocal supporters of the establishment of an ad hoc tribunal which would address the crimes which were committed in Syria, and which should be modelled on the ICTY and ICTR. It suggests that such an ad hoc tribunal is to be situated in Iraq which would facilitate preservation of, and access to, evidence, but which would also be in a position to deal with the thousands of European foreign fighters who are still in Syria and Iraq.27 26 Rome Statute of the International Criminal Court [as amended] (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 38544 <https://www.International Criminal Court-cpi. int/resource-library/Documents/RS-Eng.pdf> accessed 23 July 2019.

27 Helen Warrell, ‘Sweden proposes international tribunal to try Isis fighters’ Financial Times (London, 19 May 2019) <https://www.ft.com/content/9086250e-7802-11e9-bbad7c18c0ea0201> accessed 21July 2019.

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In certain instances, an ad hoc tribunal might be better suited to hear certain cases, and the number of prosecutions might even be higher than those of the International Criminal Court as was the case with the ICTY. The setting up of such a tribunal close to where the acts have been committed would also be beneficial for evidentiary purposes, most notably for witnesses to give their testimonies and for the gathering of evidence.

In order to establish such a tribunal, one would require not only a strong political will, but also a massive amount of resources and expertise, backed by a sound legal structure which would take a considerable amount of time to be formally established.

If States such as Syria and Iraq would still be reluctant to give up their jurisdiction and to submitting themselves to the International Criminal Courtâ&#x20AC;&#x2122;s jurisdiction, a hybrid court may be set up, which would be comprised of local judges assisted by international experts, and which would utilise a domestic setup whilst assuming the objectives of an international court - as was the case with the Extraordinary Chambers in the Court of Cambodia and the Special Tribunal for Lebanon. The nature of a hybrid court would therefore require Syrian and Iraqi consent, but this is also unlikely for Syria due to its unstable political context. The exact location of the tribunal might also be challenging, and questions on independence and impartiality might be raised if such tribunals are set up in neighbouring third countries.

4.2.3 Prosecution by national courts In the first part of this paper, one established that States have an erga omnes obligation to prosecute genocide and crimes against humanity due to the principle of universality. However, this may be easier said than done since concerns might arise as to whether the exercise of jurisdiction would be considered as an encroachment upon the sovereignty of the State upon whose territory the crimes would have been committed. In virtue of the principle of territoriality, perpetrators should be prosecuted in Iraq and Syria, since the atrocities were committed on their territory. However, considering the gravity of the crimes in question and the current state of affairs in both Syria and Iraq, the claim of the enforcement of universal jurisdiction against the sovereignty of a State, which is on the brink of collapse, may be favoured.

The ongoing tumultuous state of political affairs in Syria render prosecution in Syria both improbable and impractical since doubts may be 18

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raised as to the Syrian courts’ legitimacy, independence and impartiality.

Moreover, postponing prosecution until the political context improves would only delay (and deny) justice further. Iraq has already started prosecuting members of ISIS, and whilst this might be a step in the right direction for justice to be served, the United Nations has called for the transparent, fair and thorough conduct of proceedings, and has also warned against the hasty sentencing to death of those found guilty. Moreover, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions added that ‘[t] he Government of Iraq should take appropriate steps to prosecute the crimes perpetrated against the Iraqi people, including alleged genocide, crimes against humanity and war crimes’ whilst ensuring that the international legal standards are upheld.28 One must also delve into the role of the respective domestic courts to prosecute their own nationals for atrocities committed in Iraq and Syria in terms of the active personality principle. Whilst a number of States have already commenced the prosecution of their own nationals, others have relied on the assumption that it is Iraq, as a sovereign State, who should prosecute perpetrators for crimes committed on its territory. In July 2019, the Netherlands commenced the prosecution of the first Dutch perpetrator for war crimes carried out in Syria, as well as trying others for joining ISIS.29 However, the same cannot be held for the thousands of other European foreign fighters who are still in Syria and Iraq, and whose countries refuse to let them return. The French authorities have held that the prosecution of foreign fighters for crimes committed in Iraq are a ‘sovereign’ matter for Iraq and as such, should be dealt with by Iraq.30 Germany too has been criticised for ‘obstructing justice’ for not accepting to take back German nationals who have committed atrocities against the Yazidi.31 Interestingly, in the case of 28 OHCHR News, ‘Iraq: UN expert says prosecution of ISIL leadership must be fair and thorough’ (Geneva, 4 April 2019) <https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=24440&LangID=E> accessed 1 August 2019.

29 Sinead Barry, ‘Alleged Islamic State militant on trial in Netherlands for war crimes’ (Euronews) (9 July 2019) <https://www.euronews.com/2019/07/09/alleged-islamic-state-militant-on-trial-in-netherlands-for-war-crimes> accessed on 1 August 2019.

30 BBC, ‘French Islamic State members sentenced to death in Iraq’ (27 May 2019) <https://www.bbc.com/news/world-middle-east-48414670> accessed 1 August 2019; BBC, ‘French Islamic State accused handed over to face trial in Iraq’ (26 February 2019) <https://www. bbc.com/news/world-europe-47370288> accessed 1 August 2019.

31 Natalie Muller, ‘Germany is failing to prosecute IS foreign fighters, Yazidis accuse’ DW (29 May 2019) <https://www.dw.com/en/germany-is-failing-to-prosecute-is-foreign-fightersyazidis-accuse/a-48944533>; Chase Winter, ‘As IS crumbles, Syrian Kurds want Germany to take back foreign fighters’ DW (4 February 2019) <https://www.dw.com/en/as-is-crumbles-syrian-

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Prosecutor v. Droubi, the Swedish courts prosecuted a Syrian citizen for war crimes which he had committed in Syria. What is of particular importance in this case is that neither Droubi nor his victims were Swedish, and that he was prosecuted upon taking residence in Sweden after he had committed the crimes.32 This paper will not delve into the responsibilities of Iraq and Syria in terms of their statutory duties to prevent and to act, with the latter arising the moment a State finds out, or is expected to know, of the atrocities being carried out. However, in such a case, one would need to determine to what extent they could have prevented genocide from occurring, and whether there were any measures within their powers which they could have taken to prevent and punish genocide.33 One would also need to look into the relationship between Iraq and Syria on the one hand, and ISIS on the other, and the extent to which the said States could somehow influence the actions of ISIS. 4.3 Collection and preservation of evidence Since States have an erga omnes obligation to prosecute such atrocities, it stands to follow that every State should also have a fully-fledged specialised unit in place which would be capable of investigating crimes under international law due to the principle of universality. One must admit that this is extremely sensitive not only due to the technical difficulties in collecting and preserving data and carrying out investigations in general, but also due to the complexities which may arise in connection with various types of evidence.34 As for our current context of prosecuting ISIS, determining which court or tribunal is the competent forum is only the tip of the iceberg, since one would need to address other challenges such as the proper collection and preservation of evidence. kurds-want-germany-to-take-back-foreign-fighters/a-47336852> 32 Prosecutor v. Mouhannad Droubi B 13656-14 (Sรถdertรถrn District Court, Sweden) 26 February 2015.

33 Application of the Convention on the Prevention and Punishment of the Crime of Genocide case (Bosnia & Herzegovina v. Serbia & Montenegro) (Judgment) [2007] ICJ para 425-450 <https://www.icj-cij.org/files/case-related/91/091-20070226-JUD-01-00-EN.pdf> accessed 2 July 2019.

34 The different types of evidence themselves pose their own respective challenges depending on whether they are witness testimonials, documentary, scientific, digital, direct, indirect or circumstantial evidence. More information can be found on <https://ir.lawnet.fordham. edu/cgi/viewcontent.cgi?article=2696&context=ilj> accessed 24 July 2019.

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Naturally, an important element in the challenge of prosecuting ISIS is to collect and preserve evidence on the ground, specifically from Sinjar and its surrounding areas. For this purpose, the United Nations Investigative Team to Promote Accountability for Crimes Committed by ISIS (UNITAD), which is based in Iraq, has been set up so as to assist prosecution teams with securing convictions against ISIS members. The Resolution which set up UNITAD declared that the purpose of the said Investigative Team is: … to support domestic efforts to hold ISIL (Da’esh) accountable by collecting, preserving, and storing evidence in Iraq of acts that may amount to war crimes, crimes against humanity and genocide committed by the terrorist group ISIL (Da’esh) in Iraq, to the highest possible standards […] to ensure the broadest possible use before national courts, and complementing investigations being carried out by the Iraqi authorities, or investigations carried out by authorities in third countries…35 UNITAD has been collecting evidence, from the most crucial locations, most notably the Sinjar region and mass graves in the vicinities, as well as imagery and first-hand accounts from both victims and villagers living in the area. This undoubtedly requires excellent, effective and specialised investigation and evidence gathering.

Whilst courts tend to grant a higher probative value to direct evidence rather than circumstantial evidence, the latter type of evidence is also accepted as was shown in the case of Prosecutor v. Bemba.36 The weight to be afforded to each type of evidence would also need to be looked into. For instance, in witness testimonials, credibility and reliability would be essential, whereas in documentary evidence, the ‘provenance, source or author, as well as their role in the relevant events [and] the chain of custody’ will be assessed.37 When the affected areas are difficult to access, aerial imagery has proven vital for the collection of evidence, and the cases of Krstic, Blagojevic, Popovic et al and Tolimir are considered to be landmark cases for aerial imagery evidence in their constant reliance on the said imagery, as well as for placing 35 UNITAD was established through Resolution 2379 (2017) as adopted by the Security Council at its 8052nd meeting on 21 September 2017 <https://undocs.org/S/RES/2379(2017)> accessed 7 August 2019.

36 Prosecutor v. Jean-Pierre Bemba Gombo (Trial Chamber judgment) ICC-01/05-01/08 (21 March 2016) para 239 <https://www.International Criminal Court-cpi.int/CourtRecords/ CR2016_02238.PDF> accessed 22 July 2019.

37 ibid para 237.

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the burden of proof on the defence to demonstrate that the digital images were not authentic or lack reliability.38

5. Conclusion More than five years have passed since the first attacks were committed against the Yazidis by ISIS, and justice is still nowhere in sight for the thousands of victims. This article has attempted to address the legal challenges which has resulted in the slow progress of justice. Despite the fact that all the requisite elements seem to be present, and have been declared so by the highest bodies of the international community, there is still a sense of reluctance to move forward, not only within the United Nations Security Council but also in the domestic courts. This article concludes that although a specialised ad hoc tribunal might be the most effective forum to prosecute perpetrators, the setting up of such a tribunal is in itself challenging.

Moreover, due to the stalemate at the United Nations Security Council, both the International Criminal Court and a specialised ad hoc tribunal seem to be out of the question at this stage. As a result, domestic courts (more specifically Western courts) must step in to ensure that justice is served to the thousands of Yazidis who have been traumatised, displaced and killed.

Whilst recognizing that some prosecutions have now commenced through the Iraqi courts, one must ensure that the international legal standards and requirements are upheld and respected, and bear in mind that under no circumstances do two wrongs make a right.

38 Prosecutor v. Radislav Krstic (Trial Chamber judgment) IT-98-33-T (2 August 2001) <www.icty.org/x/cases/krstic/tjug/en/krs-tj010802e.pdf> accessed 7 August 2019; Prosecutor v. Vidoje Blagojevic & Dragan Jokic Trial Chamber judgment IT-02-60-T (17 January 2005) <www.icty.org/x/cases/blagojevic_jokic/tjug/en/bla-050117e.pdf> accessed 7 August 2019; Prosecutor v. Vujadin Popovic et al Case no IT-05-88-T 10 June 2010 <www.icty.org/x/cases/ popovic/tjug/en/100610judgement.pdf> p 19; Prosecutor v. Zdravko Tolimir (Trial Chamber judgment) IT-05-88/2-T (12 December 2012) p 23 <http://www.icty.org/x/cases/tolimir/tjug/ en/121212.pdf > accessed 7 August 2019.

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