Why Has ISIS Not Had Their Day in Court?

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By Olivia Townsend

Once upon a time, in a land far away, citizens of every city lived together in harmony. All was good in the world. Peace and prosperity reigned and conflict was a thing of the past. If only life were a fairytale though.

The world we live in is one paralyzed by terror and any kind of conflict a person can think of. It seems like every time the news comes on; yet another attack has occurred. Unfortunately, I don’t have the time nor the political correctness to delve into every conflict in this piece as insightful as they inevitably would be. I’ve been told I’m very wise but I digress. Instead, let’s focus on the topic of contention today and why not start of JustCogens’ second year with a discussion of genocide. More specifically, why the Islamic State of Iraq and Al-Sham (ISIS) have not been held accountable for genocide?

In 1948, following the end of World War II, the United Nations (UN) General Assembly voted collectively to create the UN Convention on the Prevention and Punishment of the Crime of Genocide. Recognizing that “at all periods of history genocide has inflicted great losses on humanity” and that international cooperation was needed to “liberate mankind from this odious scourge,” the Convention proscribed specific acts committed with the intent to destroy ethnic, racial, religious or national groups. More specifically, Article II holds:

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.

Now, within the sphere of international law, genocide is one of the frustrating gray and murky areas. With the advancement of modern warfare, genocide has been harder to pinpoint and even more difficult to try. More importantly, as ISIS operates outside the boundaries of traditional warfare, can they be held accountable? In its very nature, genocide is committed by the state or by powerful groups which have the backing of the state.

The facts remain that ISIS is still committing genocide against the Yazidi minority in Iraq. Approximately 5000 Yazidi men were executed when the Sunni militant group took control of the area in 2014. Thousands more, mostly young girls and women, were taken into captivity. Iraq’s Yazidi community – a small and isolated religious minority that combines elements of Christianity, Zoroastrianism and Islam – has been constantly persecuted by successive governments and invading groups.

In June of 2016, the Independent International Commission of Inquiry on the Syrian Arab Republic released a report determining that ISIS had indeed committed genocide, crimes against humanity, and war crimes against the Yazidis. According to the report, ISIS has engaged in:

killings; sexual slavery, enslavement, torture and inhuman and degrading treatment and forcible transfer causing serious bodily and mental harm the infliction of conditions of life that bring about slow death; the imposition of measures to prevent Yazidi children from being born…; and the transfer of Yazidi children from their own families.

During their investigation, it was found that members of ISIS had separated Yazidi men and boys over the age of 12 from the rest of their families and murdered those who refused to convert to Islam. Family members were forced to watch these executions before being forcibly transferred to various locations in Iraq, and from their Syria, where most hostages remain. The actions of ISIS meet the definition of genocide, the UN panel concluded.

Along a similar vein, the US agrees with the UN’s conclusion. Former Secretary of State John Kerry (let’s take a moment to grieve the end of his tenure and the start of Rex Tillerson’s) announced last year that the Obama administration had concluded that ISIS was committing genocide against Christians and other minorities in its territory.

Furthermore, there is more than enough evidence of crimes due to ISIS boasting about them in online videos. However, the lack of strategic importance and focus on the humanitarian crisis in Iraq and Syria has prevented the ongoing Yazidi genocide from becoming a recurring headline. With the UN and states agreeing that the crimes against the Yazidis constitute genocide as defined in Article 2 of the Convention on the Prevention and Punishment of Crime of Genocide, why haven’t ISIS members been held accountable by the International Criminal Court (ICC) for their actions.

As Iraq and Syria are not party to the Rome Statue, the ICC cannot investigate unless Iraq invites them in or the UN Security Council sanctions an investigation. This has only happened twice in history. Darfur in 2005 and Libya in 2011. Furthermore, China and Russia, have both previously voted against asking the ICC to open an investigation into war crimes in Syria. One can only wonder why this is. cough national sovereignty over human rights cough

Until their stances change, international justice is at a stalemate.

Olivia Townsend is in her final semester of a Combined Masters in International Relations and International Law. She has been told she has an addiction to caffeine but vehemently denies this.

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