Now that the UN commission has put the label ‘genocide’ on the crimes against the Yazidi do you think that will spur on efforts to get crimes prosecuted? It has happened before with the war in Darfur, Sudan, being a labelled a genocide by then US-Secretary of State Colin Powell in 2004 [IJT-63]but now 12 years on, no one is in the dock. This despite a UN Security Council referral to the International Criminal Court (ICC) and a warrant out for the arrest of Sudanese president Omar al-Bashir.

Stephen Rapp (SR): Genocide does gather more attention and cries out for mechanisms of accountability that may not be as easy to establish when you have other mass atrocities. There are a lot of bad things happening all over the word but there is the sense that if it is the crime of genocide it deserves some priority. In Darfur even with that ‘crime of crimes’ labelling it wasn’t possible to achieve that level of cooperation to make those arrests to date so (a genocide label) doesn’t guarantee there is going to be success in the short term. But with Darfur it did at least open the way for an international court to have jurisdiction of the crime and that’s what the Yazidi victims and survivors wish for as their highest priority.

What is happening on the ground now in terms of collecting evidence?

SR: There are efforts to document these crimes by the victimised communities themselves. Yazidi religious leaders have been very welcoming to the survivors of sexual violence who in some other cultures end up being stigmatised for it. They have worked to gather evidence about the crimes but of course there is other evidence that is not readily available such as the identity of the victims that are in the mass graves that are on mount Sinjar. (The graves were exposed but they have not been exhumed yet to gather forensic evidence)

We have heard that men and boys were taken from places like Kojo and killed by the hundreds and old women were also killed because they were not capable of being sexual slaves. (Such conduct) would also involve the destruction of the group so it would be very useful to have that evidence. It’s not yet possible to conduct that level of investigation. There may be a lot of individuals who are in custody, detainees, my understanding is a hundred detainees at the most held by the Peshmerga (The military forces of the autonomous region of Iraqi Kurdistan), could be interrogated appropriately and information could be obtained and so as to get witnesses to these events from the inside to be presented.

What are the the main obstacles that hamper getting a Yazidi genocide case to court?

SR: The crime is there but there is not yet a court to try it. At the moment it is the absence of a court with the capacity and the jurisdiction to try the major perpetrators that is the main obstacle. We understand that many of the major perpetrators like (IS leader Abu Bakr) al-Bagdhadi are not easy to arrest. We must accept that some of the major perpetrators are outside of our control today but they could be at some point in the future arrested and taken to the court. The question is what court and is there a court that has the capacity to prosecute both in the sense of does it have the legal jurisdiction to see a prosecution for genocide as opposed to ordinary crimes and in the sense that it has the legal capacity and can deal with the issues in a sense that the accused will be well represented and in which the victims and survivors of these crimes will have a role.

What kind of courts, which jurisdiction should we be looking at?

SR: The victims and the (Yazidi) community would prefer the most internationalised, most visible case. Their preference would be an ICC case. I think and the matter could be brought to a head if the security council were to establish a formal investigative commission for the crimes committed by Daesh (the Arabic acronym for Islamic State) against religious minorities in Northern Iraq. An investigative commission like the United Nations International Independent Investigation Commission (UNIIIC) that preceded the Special Tribunal for Lebanon [IJT-177]or the SITF that is preceding the Kosovo Special Chambers [IJT-177]. Something led by a prosecutor with police investigators and forensic capacity and a mixed team that includes veterans of international justice as well as investigators and others that know the local language, culture and tradition.

It would be possible to accelerate the work on the mass graves and be able to take statements of the victims and survivors in a comprehensive way. I have seen lists of people that have been gathered by documentation groups of 40 or 50 suspects that have been identified as being involved in the massacres and the sexual slavery. You need to develop information about individual criminal responsibility, that would be a powerful thing. When that comes through, the case could be ready for a court and that could open the door for the UN Security Council for an ICC referral or some other kind of international tribunal.

Seeing that the ICC focuses on prosecuting the most responsible and the highest-ranking suspects, how many would ever appear in court for an ICC case?

SR: The ICC has never charged more than five people over a situation. They will not charge that many people and there are more than five or six people implicated in this crime. I don’t think that is sufficient. The ICC doesn’t have the capacity and the budget to go out there and dig up the mass graves without more funding. The ICC would benefit from having a well organised investigation to take over. I think this is more likely to result in some sort of hybrid court that would include the representatives from the communities: Arabs and Kurds from the region and internationalised judges, but independent judges not victors justice. That I think is the best solution.

If we can’t get that, there is real interest in establishing a court in northern Iraq with the jurisdiction to try genocide, crimes against humanity and war crimes that would include Kurdish judges and Iraqi judges and could invite the participation of international judges but it would be in the nature of a mixed state court like Bosnia [IJT-169], not established under the UN, but under Iraqi law. At the moment the will on this is in the Kurdish region which could legislate this under Iraq law but they need to do that in coordination with Baghdad.

It makes sense to begin the process in any case. One needs to move forward in one way or the other or there is the danger that nothing may happen.  

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© 2016, International Justice Tribune