Overview
The Islamic State of Iraq and Syria (ISIS) emerged from the ash of unsolved political, religious, and sectarian conflicts in the Middle East that motivated many extreme terrorists around the globe then became the greatest threat to the humanity in recent years. It started invading a big swath in Iraq and Syria and committing most core international crimes, the international community formed a global military Coalition to defeat them in Sep 2014, and the United Nation Human Rights Council on 22 Aug 2011 established the International Impartial and Independent Mechanism for Syria (IIIM) to investigate all alleged violations of international human rights law since Mar 2011 in Syria, which since the emerging of ISIS, the Mechanism recorded the core international crimes, furthermore, the United Nations Security Council (UNSC) in 2017 created the United Nations Investigative Team to Promote Accountability for Crimes Committed by Daesh (UNITAD) to support domestic efforts to hold ISIS accountable by collecting evidences in Iraq of acts to war crimes, crimes against humanity and genocide committed by ISIS.
The UNSC as the most responsible organization around the globe under chapter VII of the Charter of the UN is responsible for maintaining peace and security to determine the existence of any threat, and breach of peace. The UNSC identified ISIS as a threat to international peace and security which captured, controlled, and operated with impunity over large swathes of territory in Iraq, and Syria.
The ISIS committed grave abuses of International Human Rights Law, International Criminal Law, and International Humanitarian Law, as UNITAD stated in its first report that ISIS’s acts may amount to war crimes, crimes against humanity and genocide. United Nations Assistance Mission for Iraq known as UNAMI in its reports stated that ISIS’s crimes met the internationally accepted definitions of war crimes and crimes against humanity, that conducted various kind of crimes, including sexual and gender-based violence, abduction, use of prohibited weapons, extrajudicial killings, torture, indiscriminate attacks, recruitment and use of children, attacks against religious and ethnic groups, displacing civilian people, and committed widespread and systematic attacks directed against any civilian populations because of their ethnic or political background, religion or belief, which may constitute crimes against humanity. ISIS caused to massive displacement of civilians, from Jan. 2014 to Oct. 2016 more than 3.2 million persons were internally displaced, including estimated one million children under age of seventeen, this article will scrutinize the possibilities of committing the crimes of genocide, war crimes and crime against humanity by the ISIS fighters.
Crime of Genocide
Genocide for a long time was a crime without a name. For the first time the term was coined in 1944 by Polish-Jewish lawyer Raphel Lemkin, the author originally described the concept to destruction of a nation or of an ethnic group, the term was made from the ancient Greek word genos (race, tribe) and the Latin cide (killing), thus corresponding in its formation to such words as homicide, infanticide, etc. generally speaking, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. Despite the widespread using of the term, the term is commonly used in particularly reference to campaigns involving the killing of a large number of victims.
Within the beginning days of the ISIS attacks, UNAMI gathered evidences that prove ISIS deliberately attacked Yazidi community and killed them¸ the reports which were published by the organization show that the systematic approach of the ISIS attacks from different bases, encircling the mountain and emptying the villages within 72 hours, IIIM in its report stated that the ISIS fighters divided the captured Yazidis into groups of men and boys and another groups of women and children, the men and boys were executed, ISIS asked the captured men three times to convert to Islam, when having refused to convert, were killed, the remaining Yazidis were first moved into temporary and afterwards into designated centers far into ISIS controlled areas. Yazidi women divided into groups of married women with children, married women without children as well as unmarried women and girls. In some cases, the elder women were executed right away.
UNAMI, and Yazda organization published three reports about the investigation of mass graves. For instance, 95 mass grave sites have been found in Mosul, especially in Sinjar district, which is predominately inhabited by members of the Yazidi community, the smallest mass grave was discovered containing the bodies of eight civilians, and the largest is believed to be up to 4,000 persons who have been killed and disposed of at this site. According to another report from Yazda Organization until 28 Jan 2016, the organization in collaboration with Iraqi and KRG authorities discovered 35 mass graves of the Yazidi people who were killed by the ISIS fighters. According to the second and the latest report, except the previous mass graves, Yazda organization until 2018 identified another 21 mass graves which all of them contain people belong to the Yazidi community.
As a forensic evidentiary material from mass grave sites, the UNITAD reported in coordination with Mass Graves Directorate and the Ministry of Health of Iraq, in cooperation with KRG, excavated 17 mass graves in and around the village of Kojo in Sinjar district, the work was conducted in line with international standards, and this work has ensured that evidence from sites that may be crucial to future prosecutions in relation to core international crimes.
As the Committee on Legal Affairs and Human Rights in the European Council stated that ISIS targeted people of the Yazid community and subjecting them to torture. There is conclusive evidence that ISIS has committed genocidal acts including mass serious bodily or mental harm, by way of torture, beatings, and inhuman and degrading treatment. According to the report of the Amnesty International, the ISIS fighters in Aug 2014 abducted thousands of Yezidi men, women and children who were fleeing the ISIS takeover from the Sinjar region, hundreds of the men were killed and others were forced to convert to Islam under threat of death, many have been subjected to torture and ill-treatment. Some of the Yazidi women and girls who have escaped ISIS captivity, as well as some of those who remained captive, have given harrowing accounts to Amnesty International of the torture and abuses that they have suffered.
The most horrifying aspect of ISIS’s treatment of Yazidis is its systematic sexual and domestic enslavement of thousands of Yazidi women, as the Secretary-General in its report on Conflict-Related Sexual Violence stated that there are many written evidences that ISIS not only tolerated, but also actively encouraged the rape, torture, and enslavement of Yazidi women captives, indeed, the ISIS bureaucracy has issued multiple fatwas (religious verdict) dealing with the treatment of women slaves. A manual on women captives issued at the end of 2014 answered a number of questions about relations between ISIS members and women slaves, it stated that “sex with a woman slave, but if the slave is not a virgin, be ensure that she is not pregnant, is permitted”, the manual also regulated various rules, among other things, the appropriate forms of beating "disciplinary beatings" are acceptable. Sexual violence was employed by ISIS as a tool of genocide against the Yazidi community. The ISIS fighters have raped women pursuant to a plan of self-perpetuation aimed at transmitting their ideology to a new generation who can be raised in their own image, in this way, women’s bodies are used as “biological weapons” to alter the demography of the region. Girls and unmarried women who escaped from ISIS captivity recounted to the investigators that the process by which they were raped and sexually enslaved. ISIS members numbered them or recorded their names on lists, and inspected them to evaluate their beauty, while some were given as “gifts”, others were sold to local or foreign ISIS fighters, Some victims were privy to price negotiations between “vendors” and “buyers”, girls would then be prepared for rape.
UNAMI received reports of rape and sexual assaults against women and children committed by the ISIS fighters that they herded approximately 450−500 women and girls. 150 unmarried girls and women predominantly from the Yezidi community were reportedly transported to Syria, either to be given to ISIS fighters as a reward or to be sold as sex. Also the organization conducted an interview by an adolescent Yezidi girl who had been abducted by ISIS when they attacked her village, she stated that ISIS took hundred women, the girl stated that she was raped several times by several ISIS fighters before she was sold in a market. The Amnesty International in its report (Escape from hell, torture and sexual slavery in Islamic State Captivity in Iraq) interviewed 42 Yazidi women who had been abducted by ISIS and then escaped, they recounted their story under ISIS control, the Yazidi girls stated to the Amnesty International that ISIS abducted many Yazidi girls and women then raped them, some managed to escape, and others were under ISIS captivity or killed. On 5 Aug 2016, the United Nations International Child’s Fund (UNICEF) reported that families who had fled to Sinjar mount, including up to 25,000 children, were in immediate need of assistance, including drinking water and sanitation services, also reported that around 40 Yezidi children had died as a consequence of hunger, thirst and dehydration.
The behavior of ISIS fighters towards the Yazidi community manifested their genocidal intent. The atrocities systematically committed against the Yazidis are inspired by religious ideology. Many reports demonstrate that the ISIS fighters asked the people belong to the Yazidi community to convert into Islam or to be killed. In its 2014 report based on over 300 first-hand victims and witness interview, the IIIM concluded, ISIS’s attacks on the Yazidi community considered to be infidels, and finding ISIS’s public statements over social media, suggests a denial of this religious group’s right to exist, abducted just the Yazidi women and girls then divided as sexual salves among ISIS fighters. In its 2016 report (they came to destroy), IIIM concluded that the ISIS fighters focused their attack on the Yazidis, because they were Yazidis, In its 2015 report, the Office of the United Nations High Commissioner for Human Rights stated that the information proved the intent of ISIS to destroy the Yezidi as a group when perpetrating those acts and to the existence of a manifest pattern of attacks against Yazidi community, whose identity is based on its religious beliefs.
For legitimizing its intention, the ISIS boasted about subjecting abducted Yezidi women and girls to sexual violence and slavery, seeking to legitimize these abhorrent and criminal practices according to their own interpretation of Islam, It could be an apparent evidence to prove that ISIS fighters deliberately with intention committed such crimes, based on the evidences, collected by many sources, the Yazidi community and acts that caused serious bodily or mental harm to members of that group, the information also pointed to the intent of ISIS to destroy the Yazidi as a group when perpetrating those acts and to the existence of a manifest pattern of attacks against that community, whose identity is based on its religious beliefs, Yazidis were considered as infidels; such conduct may amount to genocide.
War crimes
The origins of war crimes can be found in the traditional laws of war which today called international humanitarian law, their rules were derived from international conventions and customary international law, war crimes are crimes committed in time of armed conflict, The main purpose of the law of armed conflict is to protect combatants and non-combatants from unnecessary suffering and to safeguard the fundamental human rights of persons who are not, or are no longer, taking part in the conflict, that prevents the degeneration of conflicts into brutality and savagery.
By willfully killing, and summarily execute Yazidi people who refused to convert, often within sight of their relatives, the ISIS fighters committed the war crime of killing civilians. Yazidis men, women, and children were also killed by ISIS during their captivity in Iraq and Syria, these killings constitute the war crime of murder, ISIS committed war crimes by committing mutilation, torture, humiliating, cruel and degrading treatment, and severe deprivation of liberty against civilians by beating and flogging, pulling out nails, electrocution, and crucifixion, or outrages upon personal dignity, and passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, and amputating hands as a punishment for theft, the amputation reportedly were improperly performed, that causing immense suffering to the victims and distress to the crowd who had been urged to watch. ISIS justified its violation and execution by religious law. The victims stated that detainees in ISIS prisons have no access to lawyers and are afforded none of the due process rights inherent in a fair trial there are reasonable grounds to believe that ISIS has committed the war crime of execution without due process.
Based on interviews with survivors, the UNAMI reported that approximately 1,500 to 1,700 members of the Iraqi armed forces after captured and being captive from Camp Speicher in Salah ad-Din governorate on 12 June 2014 and on 10 June 2014 more than 600 inmates of Badush prison were summarily executed by ISIS.
Buildings which are dedicated to religion, education, art, science or charitable purposes or historic monuments have special protection under international criminal law, they may not be intentionally targeted, unless they become a legitimate military objective, key example is the protection of cultural property. As ISIS fighters controlled the Sinjar region in early Aug 2014, they began to destroy Yazidi temples and shrines, Sunni and Shi’a mosques, Christian churches and monasteries, Kaka’e shrines, Sufi shrines and other religious, historical or cultural significant sites have all been targeted. The ISIS destruction of cultural property brought the UNSC attention which resulted unanimously passed a resolution to addresses ISIS's destruction of cultural property and condemned the destruction of cultural heritage in Iraq and Syria. Then the United Nations General Assembly adopted another resolution which specifically addressed the destruction and looting which carried out by the ISIS fighters, stated that the cultural heritage of Iraq, as a cradle of the Mesopotamian civilization, found in its museums, libraries, archives and archaeological sites, places of worship, including mosques, shrines and churches, and of religious and cultural artefacts, which are irreparable losses for Iraq and for humanity as a whole, that affirms attacks intentionally directed against buildings dedicated to religion, education, art, science or charitable purposes, or historic monuments, these acts may amount to war crimes.
Gender violence is another form of war crime under international criminal law, The UN secretary-general annual report to the UNSC about conflict related sexual violence for years of (2015, 2016, 2017, 2018, and 2019), all mentioned reports addressed many sexual violations which have been committed by the ISIS fighters, expressed that following seizure of Mosul and surrounding areas in June 2014, ISIS instituted a pattern of sexual violence, slavery, abduction and human trafficking, forced abortion perpetrated because of the ethnicity, “sold” in open markets or “given” to ISIS fighters as gifts, additionally the reports stated that ISIS conducted sexual exploitation, trafficking and trading to force the payment of ransoms, they gained around one million American dollars for releasing of 200 abducted Yezidis women, ransom payments to ISIS from the Yezidi community amounted to between $35 million and 45$ million, The UNSC on 23 Apr 2019 hold a meeting to adopt a resolution which was sponsored by Germany for recognizing the use of sexual violence as a tactic and weapon of war and terrorism. Nadia Murad, the Nobel Peace Prize laureate is one of the survivors of ISIS sexual slave, she recounted the suffering which was inflicted by the ISIS to the Yazidi women “Once the ISIS captured victims, they took all their possessions, money, gold and mobiles and then separated the men from the women, then, they transported us to Rambusia, then to Baaj, before taking us to an agricultural area in Kabuseh, At Kabuseh, at gun point, they separated me and my three sisters from our parents. The four of us were taken to Baaj and detained in a single room. One evening, the Wali (ISIS mayor of Mosul) came with a group of men and each man took a girl for himself, one of the men, called Abu Al Hassan Al-Iraqi, took me, one of my sisters was taken by Abu Salih, the other by Abu Ghofran, and the fourth one by Abu Aysha Sharia, Al-Iraqi took me to Kocho village and married me, I was sold six times before my uncle secured my release by paying some money in May 2015.”
It is amount to war crime if the perpetrator employed a gas, substance, device or a weapon that releases a substance as a result of its employment, the substance causes death or serious damage to health in the ordinary course of events, through asphyxiating or toxic properties. The UNAMI received information that ISIS used, or attempted to use, chlorine gas in attacks, reportedly fired a chemical mortar, the Organization for the Prohibition of Chemical Weapons voiced serious concern over the reports of possible use of chemical weapons in Iraq by ISIS.
Human Rights Watch reported that ISIS launched at least three chemical attacks on the Iraqi town of Qayyarah, south of Mosul. And noted that the use of toxic chemicals as a means of warfare is a serious threat to civilians and combatants and is a war crime, several witnesses, as well as a number of other sources provided information to Leadership Panel of the (Organization for the Prohibition of Chemical Weapons-United Nations Joint Investigative Mechanism) that Marea town was bombarded by artillery shells, several of which were filled with sulfur mustard, these information verified by the IIIM.
The recent addition to the prohibited methods of warfare is the use of child soldiers, in its second report, the UN Secretary-General on children and armed conflict in Iraq to the UNSC which covered violations from Jan 2011 to June 2015 stated that throughout the reporting period, children were recruited, trained and used by armed groups to take direct and indirect part in hostilities. Children were used to act as spies and scouts, to transport military supplies and equipment, to conduct patrols, to man checkpoints, to videotape attacks for propaganda purposes and to plant explosive devices, as well as to actively engage in attacks or combat situations. In 2015 alone, the UN verified 274 cases of children having been recruited by ISIS in Syrian, and the UN verified the existence of centers in rural Aleppo, Dayr al-Zawr and rural Raqqah that provided military training to at least 124 boys between 10 and 15 years of age, verification of the use of children as foreign fighters has increased significantly, with 18 cases involving children as young as 7 years of age. The use of children as child executioners was reported and appeared in video footage. Human Rights Watch reported that in 2016 ISIS kidnapped between 800 and 900 children in Mosul for religious and military training. The ISIS established training camps to recruit children into armed roles under the guise of education, according to an account about an ISIS training camp in Aleppo, ISIS actively recruited children from the ages of 14 or 15 to undergo the same training as adults, offered financial rewards, at the camps, the children received weapons training and religious education, the existence of such camps seemed to indicate that ISIS systematically provided weapons training for children. They were active combat during military operations, including suicide-bombing missions. In Raqqah, children from the age of 10 were recruited and trained in ISIS camps. By recruitment and use of children, ISIS has violated international humanitarian law and international human rights law by using children below the age of 15, the group may have committed war crime.
Crimes against humanity
Unlike the crime of genocide, crimes against humanity have never been codified in a wide accepted treaty, as a result, negotiations to define the crimes against humanity at the Rome Conference included the specific acts which numerated in article 7 in the Rome Statute, such as murder, extermination, torture, rape sexual slavery, and persecution. The crimes against humanity are attacks on civilian populations that are at risk because of their presence in the targeted population. The basic idea is that a crime is no longer simply an ordinary crime under domestic law, but an international crime, where the collective action of an organization causes harm to the civilian population which reaches the threshold of widespread or systematic violence.
Crimes against humanity as defined by Carsten Stahn consist of two types of offences the first are so-called murder-type offences, some but not all of them are criminal offences in national legal systems, they are banned internationally because of their cruelty and barbarity, including murder, extermination, enslavement, deportation or forcible transfer of population, torture, acts of sexual violence or enforced disappearance of persons, the second type of the offence is ‘persecution-related’, these may not be criminal or even prohibited in national legal systems, they are typically geared at persecution of a specific group of people on racial, religious or political grounds.
Murder has been included as the first crime against humanity in every instrument which is defining the crimes against humanity. ISIS killed and abducted scores of civilians, victims include those perceived to be opposed to ISIS ideology and rule, persons affiliated with the Government, such as former Iraqi security forces, police officers, former public officials and electoral workers, professionals, such as doctors and lawyers, journalists, and tribal and religious leaders, many have been subjected to adjudication by ISIS self-appointed courts which in addition to ordering the murder of countless people. ISIS allegedly carried out several politically motivated killings, at least 602 members of the Albu-Nimr tribe were allegedly killed in six separate incidents between Sep 2014 and Jan 2015 in Anbar province.
Enslavement is another form of crime against humanity. Enslavement like murder has been included as a crime against humanity in all international criminal tribunals, which is defined as exercising any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty, and sexual slavery, as a crime against humanity, is defined by article (7-1-g) of the Rome Statute in addition to the above definition of enslavement, the perpetrator must cause such person or persons to engage in one or more acts of a sexual nature, ISIS’s attack on Sinjar and its subsequent abuse of captured Yazidis, including the sexual and physical violence directed against Yazidi women and children transferred into Syria, constitute a direct attack on the Yazidis and on civilian population who was the primary target of the attack may amount to crime against humanity.
ISIS allegedly committed the crime against humanity of murder and extermination, in its sexual enslavement, and beating of Yazidi women and girls, committed the crimes of sexual slavery, rape, sexual violence, enslavement, torture, other inhumane acts, and severe deprivation of liberty by forcing Yazidi men and boys to labor on ISIS projects and by beating them for refusing to so labor, these crimes were committed against the Yazidis on discriminatory grounds based on their religion, and as such they also amount to the crime against humanity of persecution
Conclusion
ISIS exploited and invested the political instability after US invasion of 2003 in Iraq, then gained power through Sunni community in Iraq and expanded its hegemony by siding the opposition military groups against Bashar Al-Asad in Syria after the Syrian civil war. ISIS by using their self-interpretation and extreme verses of Quran became the most powerful religious motivated military group in the region, established state-like structure system to govern around ten million people on one hundred square kilometers in the Middle East.
The acts of ISIS against its population and the wide range of its enemy may amount to core international crimes. They imposed a deliberate with intention campaign against the religious Yazidi community as a protected group according to the Genocide Convention which ISIS identified them as an “unbeliever community” according to its ideological perspective, the acts towards the Yazidi community including deliberate killing of the community, causing serious bodily or mental harm to members of the community, inflicting their life conditions to bring physical and psychological death to the victims of them, preventing births within the Yazidi community, and transferring Yazidi children that may amount to crime of genocide.
During its fighting against both Iraqi and Syrian state apparatus and other military groups within Iraqi and Syrian territory made the conflict to the Non-International Armed Conflict. ISIS fighters used the forbidden means of warfare as part of a plan or policy, specifically they seriously violated article 3 common to the four Geneva Conventions and other serious violations of the laws and customs applicable in armed conflicts which then inserted into article 8 in the Rome Statute, namely, murdering, mutilation, cruel treatment, torture, humiliating and degrading treatment upon personal dignity, taking of hostages, and passing of sentences and the carrying out of executions without previous judgement against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, as well as ISIS fighters violated the laws and customs of war by enlisting children under the age of fifteen years into armed forces, employing forbidden weapons, directing attacks against the civilian population and enforcing them to be displaced, directing attacks against protected buildings which have been dedicated to the religion, education, art, science, charity, historic monuments, and hospitals, during the conflict, ISIS fighters widely committed gender based violence such as rape, sexual slavery, forced pregnancy and using women as a weapon of war that all may amount to war crimes.
ISIS fighters committed acts as part of a widespread or systematic attack directed against civilian population withing its control, they committed murder, enslavement, forcibly transfer of population, imprisonment or other severe deprivation of physical liberty, torture, enforced disappearance, persecution on political, racial, national, ethnic, cultural, religious groups under its control which all may amount to crimes against humanity.
Despite the fact that all the above-mentioned crimes have been committed by the ISIS fighters but still there is no court to prosecute the ISIS perpetrators for crime of genocide, war crimes, and crimes against humanity. There are some prosecutorial challenges in bringing the ISIS perpetrators to justice, On national level, the courts in Iraq, KRI and Rojava are prosecuting the ISIS fighters not for core international crimes but for terrorism crimes, it appears the ongoing trials are flawed, corrupted, and the domestic legal systems are not able to prosecute the ISIS fighters because of lacking provisions for criminalizing the core international crimes. these obstacles require the ISIS case to be prosecuted before an international criminal tribunal.
The prosecutorial options on the international level are three options, the possibility of prosecuting the ISIS fighters before the ICC, an Ad Hoc tribunal, and a Hybrid tribunal, for the first option, the subject matter and temporal matter jurisdiction are met for the crimes which have been committed by ISIS fighters, but the triggering mechanism is the challenge, since Iraq and Syria are not parties to the Rome Statute, without consenting of Russia and China in the UNSC there is no chance for the Council’s referral, and the OTP stated that personal jurisdiction is too narrow to opening a preliminary examination, it seems that prosecuting ISIS fighters before the ICC is not viable at this stage. The second prosecutorial option is prosecuting ISIS fighters before an ad hoc tribunal, this option seems impossible for the reason that this type of tribunal needs to be established by the UNSC. The last and most applicable tribunal is a hybrid tribunal, in conclusion, this kind of the international tribunal could be established for the prosecuting ISIS fighters, and could be based in Iraq, KRI or Rojava as three of them welcomed the idea.