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The third anniversary of the massacre of Yazidis at Mount Sinjar – now known to the community as the mountain of death – was last Thursday.
Images of a peaceful community trapped on a desolate mountain, unable to escape and awaiting death, targeted by Islamic State because of its ancient religion, are seared onto many memories. Thousands of men and older women were summarily killed. Younger women were captured and more than 3,000 remain captive, sexually enslaved and subjected daily to rape, sexual violence and torture. Boys have been forcibly converted and conscripted into Isis’s forces. More than 360,000 Yazidis were displaced.
The Global Justice Centre in New York and the human rights committee of the Bar Council of England and Wales recently lodged a legal submission with the prosecutor of the International Criminal Court, Fatou Bensouda. It argued that she has jurisdiction to open a preliminary examination into Isis’s acts of genocide and other grave crimes against the Yazidis.
The UN, the European parliament and the EU have declared that crimes against the Yazidis constitute genocide, but there has not been a single prosecution of an Isis fighter for genocide or crimes against humanity. States have clear obligations under international law to punish war crimes, crimes against humanity and genocide. While Germany has led the way in issuing arrest warrants, efforts to achieve justice are fragmented. Accountability is a patchwork, with terrorism prosecutions in domestic jurisdictions around the world, including in Iraq, and a handful of potential cases under universal jurisdiction in Germany.
An ad hoc or hybrid tribunal in Iraq has been suggested, as has a referral of Syria or Iraq to the International Criminal Court (ICC) and a specialised Isis court. However, the implementation of these remedies is unlikely because of a lack of willingness from or inability of the key states. Recent reports about a new Isis court in Iraq, which focuses solely on terrorism, raise serious human rights concerns over the rights and treatment of the accused and continued impunity for international crimes.
The Yazidi genocide demands an international law response in an international court. An appropriate legal solution is the exercise of jurisdiction by the ICC over foreign fighters from states party to the Rome Statute of International Criminal Court. This would include, according to best estimates, up to 15,000 fighters from at least 34 states.
The ICC has an opportunity to fulfil its core mandate to prosecute individuals for genocide and crimes against humanity and end impunity. There is a legal basis for the court to act, complementary to legal actions carried out by individual states. It should do so urgently. Otherwise, the ICC is in danger of appearing to turn its back on the mountain of death.
Kirsty Brimelow, QC, is the chairwoman of the Bar Council’s human rights committee and a tenant at Doughty Street Chambers in London; Akila Radhakrishnan is the legal director of the Global Justice Centre]
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