WHEN SECRETARY of State John Kerry declared that the Islamic State had committed genocide against the Yazidis, a small religious sect in Iraq, he received much approval. Yet no court has agreed to hear the Yazidis’ claims.
They have filed a case with the International Criminal Court, an organization based in The Hague, highlighting evidence found in the mass graves of murdered Yazidis, mainly teenaged boys and men, near the town of Shingal in Northern Iraq, after ISIS invaded in 2014. However, neither Iraq nor Syria has agreed to be governed by that court.
What’s equally important, the United States and Russia have not agreed to come under the court’s jurisdiction either. Members of the UN Security Council could vote to create a separate tribunal to prosecute war crimes and genocide for Iraq and Syria, as it created the International Criminal Tribunal for the former Yugoslavia and for Rwanda.
However, Security Council members are so divided that a new tribunal seems light years away. The Yazidis could also file charges in the Iraq courts. Iraq has acceded to the Genocide Convention, meaning that it could try genocide cases as long as the alleged victims and perpetrators were in the country.
Such a decision would test Iraq’s commitment to observing international law and upholding its own constitution, which states, “every individual has the right to enjoy life, security, and liberty. Deprivation or restriction of these rights is prohibited except in accordance with the law and based on a decision issued by a competent judicial authority.”
If the Iraqi court system could handle these cases in a transparent and professional manner, it would go a long way toward showing residents of the war-torn country that it could uphold the rule of law without trampling on civil rights.
It would require treating prisoners humanely, handling evidence and witnesses with respect and professionalism, and not succumbing to bribery or intimidation. That is a tall order. In 2007, Lee Hamilton, a former congressman and member of the Iraq Study Group, told a congressional hearing that members of the Iraqi Police Service “routinely engage in sectarian violence, including unnecessary detention, torture, and targeted execution of Sunni Arab civilians.”
In 2013, Human Rights Watch said Iraq’s criminal justice system is “plagued with arbitrariness and opacity.” Before the invasion of ISIS, the US justice Department had been training police on investigative procedures, correction officers on human rights, and judges on analysis of evidence.
This training should be revived to strengthen the entire system of criminal prosecution so that residents feel confident that they can both seek and receive justice. The Yazidis’ genocide case would most likely be heard in Iraqi Kurdistan, where the alleged crimes occurred, and which has ratified Iraq’s constitution.
Hundreds of Yazidis have returned to their villages near Mt. Sinjar since it was liberated last fall, including some of the girls and women who were kidnapped and sold into sexual slavery. For those who are willing to identify the attackers, the government must be ready to take action. How war crimes are handled will speak volumes about the direction of the new Iraq that emerges after ISIS is beaten back.