The Failure of National Prosecution to Bring Justice to Yazidi Victims of Sexual Slavery

By Samar El-Masri - 29 April 2021
The Failure of National Prosecution to Bring Justice to Yazidi Victims of Sexual Slavery

This is part of a forthcoming Global Policy e-book on modern slavery. Contributions from leading experts highlighting practical and theoretical issues surrounding the persistence of slavery, human trafficking and forced labour are being serialised here over the coming months.

All Yazidis want justice, although there is no communal consensus on what it looks like and what it entails. In the literature on transitional justice, three kinds of justice paradigms have been identified including retributive, reparative and restorative justice (Minow, 2001). Each of these paradigms has a different way of dealing with past harm perpetrated against a community. This essay will specifically focus on retributive justice, as it occurred in Iraq, where most prosecutions against ISIS suspects took place. Despite the prosecution of more than 7000 ISIS suspects, Yazidi women and girls are still waiting for justice because of various factors including the form and the duration of these courts, the vagueness of the judicial path, as well as flaws in the judicial approach and the law.

ISIS’s Act of Sexual Slavery

ISIS is known by different names, such as the acronym Da’esh, the Islamic State of Iraq and the Levant (ISIL), or simply the Islamic State. It started as an offshoot of Al Qaeda in Iraq, but under Abu Bakr Al-Baghdadi’s leadership (2010-2019), the organization expanded militarily, controlling a territory the size of Britain across Iraq and Syria. But it was its gruesome acts of violence, which were often videotaped and documented, that made it a household name synonymous with terror, brutality, cruelty, and savagery.

Perhaps, its most shocking act was the brutality perpetrated against the Yazidis. The act of sexual slavery against Yazidi women and girls was extreme because it was organized, deeply institutionalised, legalized, and legitimized in ISIS-controlled territory. They were hauled on trucks, taken to viewing rooms, “bazaars,” and open slave markets where they were sold like chattel. ISIS considered them commodities that were in need of regulation and oversight, so two of its “diwans” (ministries or departments), namely the Department of Slaves, and the Islamic State’s Research and Fatwa Department were given the responsibility to supervise slave trade, and issued manuals that outlined what the “owner” could and could not do with his “sabaya.” These women and girls were treated as property that could be bought, sold, and inherited according to official sales’ contracts notarized by ISIS-run Islamic courts, and emancipated only with a certificate signed by the judge of ISIS’s western province, and then given to the victim as a proof of her “master’s” intentions. The evidence against ISIS in this case is overwhelming, yet a serious attempt to prosecute the perpetrators is yet to be seen.

The Failure of National Prosecution to bring justice to Yazidi Women and Girls

Since the first quarter of the twentieth century, slavery has taken a ‘jus cogens’ status (compelling or peremptory law), whose application is “peremptory and nonderogable” but the same cannot be said about sexual slavery or sexual violence against women. It was not until the 1990s that the United Nations became more interested in addressing crimes of sexual violence, prohibiting states from including sexual violence in amnesty provisions, requiring them to prosecute those responsible, and linking the prohibition of sexual violence with maintaining international peace and security. International courts also played a role in solidifying the legal prohibition of sexual violence including placing crimes of sexual violence on par with other international crimes, as well as introducing various measures to lessen the fear of stigma, revictimization, and reprisals. Most importantly, they refused to admit evidence concerning the prior sexual conduct of victims, accept consent as a defence, and plead specific locations for this crime.

When the scale of sexual slavery in territories under ISIS control became apparent, the UNSC issued various resolutions, including Resolution 2331 (2016), Resolution 2388 (2017),Resolution 2389 (2017), and Resolution 2467 (2019), in response. The importance of these resolutions are threefold: first, they acknowledge that the act of sexual slavery was used by terrorist organizations as a war tactic to incentivize recruitment, boost finances, extract information, advance a certain ideology, and displace, control, and destroy a certain population.  Second, they introduce a “survivor-centered” and “multi-dimensional” holistic approach to address sexual violence in times of war, outlining some of the measures that the UN as an organization can do to combat human trafficking. Third, they assign responsibilities to member states not only to do what they can to stop these terrorist organizations, but also to introduce judicial and legislative reform to prosecute perpetrators. Iraq prosecuted thousands of ISIS suspects, but its courts fell short in bringing justice to Yazidi victims for various reasons, including the form and the duration of these courts, the vagueness of the judicial path as well as the flaws in the judicial approach and the law.

National courts are the victims’ first resort of prosecution because of the principle of complementarity which posits that no external court has jurisdiction in domestic cases unless the national court is unable or unwilling to prosecute. From then on, the path to justice was lined with tremendous challenges. In Syria, most ISIS prisoners have been held by the Kurdish Syrian Democratic Forces (SDF). Throughout the years, the SDR used several methods to deal with its 10,000 captives, including handing them over to Iraqi authorities, calling for a special tribunal in the country to prosecute the suspects, or trying them in “makeshift courts.” These courts however have been widely criticized for lacking enforceability as they are recognized neither by the Syrian national government nor by the international community. As for Iraq, its national courts prosecuted thousands, including foreign nationals, but these trials were swift, with no victim participation, and were accompanied by violation of the defendant’s procedural rights. It was reported that prisoners were held for months without seeing a judge, with no access to a lawyer during the interrogation or an ability to notify or communicate with their families. They were often tortured and executed soon after their swift trial was over. The process itself was marred with challenges and flaws starting from the investigation.

Collecting evidence is crucial if a case is to have any prospect of success in a court of law. In the Yazidi case, several domestic and international entities were established for this reason, but each one of them had its defects. In Iraq, because trials were based on the defendants’ confessions, and because proving ISIS membership was enough to sentence the accused to a death penalty, the authorities did not do much to protect, gather or use evidence. The establishment of the Judicial Investigation Board for Crimes against the Yazidis by the Iraqi government in 2017 did not make any difference for the victims. The board neither contacted the key Yazidis groups about the matter, nor provided any transparency on the use of the collected evidence in prosecution - similar issues were observed in the operation of the investigative committee set up by Iraq’s Kurdistan Regional Government.      

As for the international efforts, the UN established two investigative teams. The first was the UN Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL  (UNITAD) to compliment domestic efforts to collect, preserve, and store evidence  according to the highest standard (Resolution 2379, 2017). This cooperation was put into action when  UNITAD helped the Iraqi authorities exhume at least 14 mass graves left by ISIS in Sinjar in  2019. The second was the 2016 International Impartial and Independent Mechanism (IIIM),  established by the General Assembly—without Syrian approval—to investigate and prosecute  those who were most responsible for international crimes committed in Syria since March 2011(General Assembly Resolution 71/248). But, the crime of sexual slavery was a continuous crime involving different countries, therefore having two separate investigative teams in Iraq  (UNITAD) and in Syria (IIIM) with no clear system to share evidence and information posed a      problem. Further, there was no clear pipeline between these investigative bodies and the court of law. This may have been due to the lack of political will. Other reason that may have prevented a closer coordination between the UN bodies and the Iraqi courts was the continuous use of the death penalty as a punishment for ISIS suspects. The UN opposes this practice and prohibits supporting any process that leads to the death penalty.    

The judicial approach that was taken by the Iraqi courts failed Yazidi victims because it did not categorize or prioritize the prosecution of the worst crimes committed. While this approach may be changing as evident in the draft law that is yet to be passed by the Iraqi legislature to provide a domestic legal basis for the prosecution of ISIS suspects for international crimes, thousands have already been charged under provision 4 of the antiterrorism law instead. In addition to the fact that the criminal offences under the present Iraqi anti-terrorist laws are defined      too broadly allowing for      “subjective and overly discretionary interpretation,”  the failure to prosecute ISIS suspects for specific international crimes poses several major problems.

First, lumping together all ISIS human rights violations—including sexual slavery—into a single crime (terrorism) not only obscures the extent of responsibility of senior ISIS officers, but also prevents the identification of the pattern of criminality that took place. This lack of precision hinders the important task of identifying the contextual elements of the crime that may contribute to a greater understanding of the root causes of the conflict.

Second, giving “those who carry out, participate, plan, finance, or enable terrorism” the same punishment means that no differentiation is made between those who ran ISIS hospitals and prepared food for the fighters and those who raped, enslaved and killed. This is not fair, not only because victims themselves have differentiated between ISIS members based on religion, actions taken, and nationality but also because children as young as nine were prosecuted for their affiliation with ISIS.

Third, a more differential approach might give the Yazidi community some insight or information about the whereabouts of their women and girls who are still missing.

Fourth, prosecution of all offenders under a general terrorism charge hinders the establishment of a judicial record of the whole body of crimes committed against the Yazidi victims and their community that can then serve as a valuable historical archive.

Fifth, this approach denies victims the opportunity to confront their abusers. During her investigative reporting in Iraq, Callimachi, a New York Times reporter, saw firsthand the cathartic impact on a Yazidi victim after she confronted her ISIS capturer in a conference-call meeting facilitated by the journalist.

Finally, trials that acknowledge the specific crimes can be a valuable tool of public reckoning, promoting a process of social reconciliation, especially if it leads to a reassessment of stereotypes and beliefs that might have contributed to these atrocities. It is worth noting here that Iraqi courts, with the help from the United Nations, managed to prosecute “pilot cases” involving ISIS’s crimes of sexual violence, but these have remained limited.

The setbacks that arose from the indiscriminate prosecution of ISIS suspects under the general terrorism charge have been compounded by several elements of the Iraqi legal landscape creating further obstacles for the Yazidi women’s fight for justice.

First, although the penal codes of Iraq, Kurdistan region of Iraq, and Syria criminalize physical and sexual assault, charges are dropped if the perpetrator marries his victim.  This provision significantly complicates the prosecution of ISIS perpetrators as many have either already married their captures or may decide to do so to escape punishment after the charges are brought up. 

Second, the Iraqi personal status code fails to accommodate the complicated situations of the many Yazidi women and girls who gave birth as a result of sexual slavery. If they wanted to go back to their community, they had to choose between staying with their children or abandoning them willingly or reluctantly under pressure or coercion. This is because children born to unmarried parents need proof of paternity before they are given their civil documents, and those with unknown fathers are automatically registered as Muslims. In other words, these children would not be regarded as Yazidis and both the Iraqi government and the administration of the Kurdish Region in Erbil demanded that they were handed over to their fathers’ relatives. The Yazidi Spiritual Council, which welcomed back the survivors of sexual slavery, refused to embrace their children as well, citing this Iraqi law. With no serious effort to amend the Iraqi personal status code and the firm opposition of the Council to revise their decision, survivors, who have refused to leave their children, had no choice but to stay in exile. 

Concluding Remarks

National prosecution of ISIS for the act of sexual slavery will not bring justice to Yazidi victims as long as the challenges and failures outlined above are left unaddressed. Thus, it is necessary to amend the domestic law to reflect the best legal practices from international courts on sexual violence in order to ensure that perpetrators are punished to the fullest extent of the law. Judicial reforms and education are also key to ensure that judges are able not only to prioritize the prosecution of the worst crimes committed by ISIS, but also to properly understand the nature of sexual violence and to tackle the discredited rape myths. Also, the vagueness that accompanies the investigation process should be clarified as this will ensure greater accountability for the victims. The collaboration that we saw between the UN and Iraq to investigate ISIS crimes through UNITAD was a step in the right direction. But it is not enough. There is a need for a framework that would enable international and internal investigation teams to share information and collaborate with all relevant stakeholders, especially Yazidi groups and NGOs. It is also important to clarify how the work of these teams can reach courts of law that are willing and able to prosecute ISIS for committing international crimes, including sexual slavery.

An external path of prosecution through the International Criminal Court (ICC) or courts of third states does not look more promising. The ICC remains a distant possibility not only because Iraq and Syria are not member states, but also because of the inability of the UNSC to transfer the case to the international court under a Chapter VII resolution. As for the courts of third states, their role can be of great importance to the Yazidi plight because of their obligation under the international law to prosecute grave violations of human rights, and given the fact that 30,000 fighters from 100 countries were among the ISIS ranks. However, their performance has been disappointing as well. European governments, for example, have tried to prevent their ISIS nationals from returning home, strip them of their nationality, and then leave their prosecution to Iraqi courts instead. It is argued that repatriating ISIS fighters to countries like Belgium, France, Germany and the UK may mount to a “political suicide” as public opinion firmly opposes their return. When prosecutions took place, however, they focused on committing international crimes and on their membership in a terrorist organization. This may be an easier charge to prove than international crimes committed abroad because of the challenges in obtaining and presenting court-admissible evidence. It is worth noting here that the first and only international trial —that the author is aware of—against IS  suspects for killing a Yazidi “slave” is taking place in a German court, where the prosecution is still ongoing. 

However, acknowledging the crime of sexual slavery may also be done through a different a route, the legislature. On March 1, 2021, the Iraqi parliament passed the Yazidi Survivors Bill, which provides reparations to survivors including rehabilitation and compensation to secure “a decent life for them,” as well as establishes August 3 as a national day of remembrance of victims and survivors of atrocities. More importantly, the bill determines that the actions against the Yazidis mount to genocide and crimes against humanity, emphasizing the necessity to prosecute the perpetrators, denying them the benefit of any future amnesty. While this is definitely a great step forward for the Yazidi women and girls, practice remains of the essence and there is no question that reform and change will require political will.

Yet, change is also possible from below. Several local and international NGOs are helping support the survivors and facilitate reunification of families with their kidnapped loved ones. Yazidi NGOs are learning from their international counterparts who mobilized to bring justice in similar context. For example, they organized trips to see how survivors of the Srebrenica massacres lobbied tirelessly to uncover and identify mass graves, pressured governments to establish the International Commission on Missing Persons, pursued prosecution in courts, and mobilized to collect money and political backing to build a memorial centre for Srebrenica. In addition, braveYazidi women are also speaking up, going from being disempowered Yazidi ex-slaves to powerful advocates for the Yazidi cause and victims of sexual violence. Farida Khalaf and Nadia Murad decided to speak their truth and rebel against patriarchal social codes that obligate women to stay silent and ashamed (Murad, 2017, 295).When Robert Guest, the Economist foreign editor, interviewed some of the Yazidis in Iraqi refugee camps to see how this deeply traditional people “with a strong sense of honour and its ugly twin, shame”  think about Murad, he was surprised to hear nothing but praise. Changing the hearts and minds of people is possible but it is a gradual process. However, knowing the whereabouts of the 2800 Yazidi women and girls  who are still missing is an urgent matter, and keeping the pressure to prosecute the perpetrators responsible for these crimes is critical not only for justice to be served but also for the Yazidi community to feel safe in their homeland again. 



Samar El-Masri is an Adjunct Professor at both the Centre for Transitional Justice and Post-Conflict Reconstruction at The University of Western Ontario and the Faculty of Graduate Studies at Dalhousie University.  

Image: 3aref 6ari2o via Flickr (CC BY-SA 2.0)

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