Tatiana Rouhana

Eight years after #ISIS# committed a genocide against the Yazidi community in Iraq, survivors are still waiting for an elusive justice for the horrific crimes committed against them. Out of the approximately 500,000 members of the Yazidi community in Iraq, some 10,000 were killed, an estimated 7,000 Yazidi women and girls were kidnapped, sexually enslaved, and forcibly married, and over 300,000 were forcibly displaced. After eight years of agony, with nearly the entire population still displaced and approximately 3,000 still missing, the Yazidi community’s needs must be front and center on the justice agenda.

Eight years after ISIS committed a genocide against the Yazidi community in Iraq, survivors are still waiting for an elusive justice for the horrific crimes committed against them. Out of the approximately 500,000 members of the Yazidi community in Iraq, some 10,000 were killed, an estimated 7,000 Yazidi women and girls were kidnapped, sexually enslaved, and forcibly married, and over 300,000 were forcibly displaced. After eight years of agony, with nearly the entire population still displaced and approximately 3,000 still missing, the Yazidi community’s needs must be front and center on the justice agenda.

In recent years there has been a spike in reliance on the court system in Iraq and abroad to address ISIS atrocities against the Yazidi community. In Iraq, thousands of alleged ISIS members have been prosecuted and sentenced to death or life imprisonment in trials that repeatedly failed to meet basic threshold of fairness. Yet, one of the key legal shortcomings of domestic prosecution of ISIS members in Iraq is the absence of defined core international crimes in its national laws. Throughout its national prosecutions, Iraq has solely relied on its anti-terrorism laws which fail to criminalize a large sexual modus operandi defined in a system of organized rape, sexual slavery, and forced marriage used by ISIS. This failure to capture the full range of the horrific crimes ISIS committed denies sexual violence survivors a critical opportunity to address the crimes committed against them, negates their agency, and often silences their voices.

On the international level, many Europeans countries have also been prosecuting ISIS members with Germany leading the way. In November 2021, a German court issued a landmark judgment, the first of its kind, recognizing that ISIS committed the crime of genocide against the Yazidis. As a second genocide conviction against an ISIS member is handed down yet again by a German court, far away from home, one cannot help but wonder: Is criminal justice enough to fully provide the desired justice for the Yazidis?
Alternative justice options for the Yazidis

Criminal justice has been the center of attention of many global actors and stakeholders in relation to addressing ISIS atrocities in Iraq and Syria. Many calls have been made by human rights activists and governments whose nationals have joined ISIS as foreign fighters, such as France, Sweden, Germany, and the UK, to create a special tribunal to prosecute ISIS members. Attempts by the Kurdish government in Iraq to set up such a tribunal have been shut down by the central government. Nonetheless, a tribunal established solely to prosecute ISIS fighters is inadequate for a variety of reasons, not least because it fails to address atrocities committed by other actors in the same conflict. For that reason, it appears impossible, to provide criminal justice for all violations committed against every survivor many of whom have voiced their dissatisfaction and frustration with the flawed Iraqi legal system that precludes broader accountability. Subsequently, criminal accountability does not necessarily always constitute the desired justice path for all survivors.

In retrospect, restorative or reparative justice has proven to be beneficial in helping a country recover and re-emerge on the path to unity and sustainable peace in many post-conflict contexts such as South Africa, Sierra Leone, and Argentina. Therefore, aside from criminal accountability, justice takes shapes in different forms and various models exist for confronting the past and dealing with mass atrocity including truth-seeking mechanisms, reparations to victims, and the creation of memorials and museums.

Truth-telling helps create a space for affected communities to keep the focus on forgiveness and peace building rather than reprisal and retribution and encourages reconciliation. Its main focus is uncovering violations committed by all sides to establish the historical facts of past injustices that have led to the current violations. Therefore, understanding the outlook of the Yazidi community toward reconciliation requires an examination of their marginalization and persecution throughout their history.

The Yazidi community in Iraq, has been caught up in the midst of the Arab-Kurd division and has consistently been denied the right to self-determination as a distinct ethno-religious group. The Yazidis frequently claim to have been subjected to at least 74 genocides throughout their existence. In the most recent genocide committed by ISIS, Yazidis have expressed resentment toward the Peshmerga who they claim to have retreated as ISIS was moving toward Sinjar without prior warning. Equally, they have expressed betrayal from their Sunni Arab neighbors who reportedly assisted ISIS in carrying out its genocidal campaign. Without a truth-telling initiative, these statements of frustration by the Yazidis which depict their broken trust will grow their resentment deeper making the idea of reconciliation between the communities a distant dream.
The viability of a truth-telling initiative

In a similar genocidal context, a truth-telling initiative called the Gacaca courts, a community-based court was established as a transitional justice mechanism in Rwanda after the International Criminal Tribunal for Rwanda failed to achieve the level of reconciliation Rwandans had hoped for post-genocide. This community-based system allowed perpetrators the chance to come up in front of their community, admit to their crimes, express remorse, and ask for forgiveness. From the time they became fully operational in 2005 until their closure in 2012, the courts worked through over a million cases country-wide, dispensing justice using strategies of prosecution, truth-telling, and forgiveness. While this approach, had suffered from many shortcomings particularly regarding the rights of the defendants to a fair trial, it did nonetheless significantly aid the country in moving forward.

Iraq has been preoccupied with the duties of implementing criminal justice for the Yazidi genocide that reconciliation has often been overlooked or considered secondary. A reformed model of to the Gacaca courts which respects the rights of both defendants and survivors could be useful in Iraq, and for the Yazidi community, not only as a truth-telling tool but also for the acknowledgment of the suffering. It is therefore important that there be a place for truth-telling and collective healing where Yazidis can learn the full truth about what happened and the fate of their missing relatives. This approach can serve as a mechanism of deterrence in order to end the culture of impunity against Yazidis and can help the community regain its trust.
What about reparations?

Court-based justice for atrocities is often awfully lengthy and many survivors frequently call for more immediate forms of support and redress. Addressing the community’s socioeconomic and psychosocial needs as consequences of the violations they have suffered is crucial. The aftermath of the Yazidi genocide has been severe on the community not only due to its human loss but equally for its socioeconomic and psychological effects. Hundreds of thousands of Yazidis have been forcibly displaced from their homeland of Sinjar, have lost their possessions and are living deteriorating conditions in camps all over the country. They are also enduring severe mental health difficulties with suicide rate growing amongst the community and particularly amongst survivors of sexual and gender-based violence.

In March 2021, the Iraqi government passed the Yazidi Survivors Law, a reparations law for survivors of ISIS atrocities. Article 2 of the law provides that it is aimed at offering reparations for the female Yazidi, Turkmen, Christian, and Shabak survivors of ISIS captivity, kidnapped Yazidi children, and all survivors from the mass extermination of the above-mentioned groups. The law stipulates benefits in form of monthly stipends and a piece of residential land with a mortgage or a free housing unit for female survivors, while it provides for special educational and employment opportunities, and medical and psychological support for both the children and female survivors. The law is also momentous because it explicitly recognized that the crimes committed against the Yazidis and other communities constitute not only crimes against humanity but also genocide.

While the Iraqi government has publicly pledged to support the Yazidis, it has not committed the required resources to make the law operational. The Yazidi Survivors Law represents a significant milestone toward justice and long-lasting peace, but there have not been concrete steps related to its implementation, including ensuring funding, effectiveness, achievability, and sustainability.
The way forward

It is crucial that the Iraqi government adopts a more holistic transitional justice approach to address the Yazidi genocide in a more immediate form by consulting the Yazidi community, listening to their needs, and delivering on them. Fully addressing the dimension of the Yazidi genocide goes beyond the scope of the prosecution of ISIS members on terrorism charges. It requires a more comprehensive approach of reform first to the Iraqi criminal law to ensure that sexual crimes are also prosecuted domestically and second to Iraq’s transitional justice process to explore other justice options to comprehensively address all the needs of the Yazidis.

Despite the fact that truth and reconciliation promote the active role of the survivors to engage in the justice processes rather than be passive victims and enables them to feel empowered, the lack of compensation for victims renders the participation in any justice process taxing rather than reparative. Yazidi survivors who are scattered in informal settlement camps in Iraq’s Kurdistan region feel abandoned by a world that has largely moved on, while they struggle alone to survive and uncover the fate of their loved ones. The Iraqi government must deliver on its obligations, including prioritizing the delivery of urgent and comprehensive reparation measures to address the harms and losses suffered by the victims and survivors.

Tatiana Rouhana is a legal practitioner in international criminal justice, transitional justice, and human rights with experience in investigation, documentation, and analysis.[1]