A legal explanation of Genocide
The origins of genocide
The term “genocide” originates from Jewish-Polish Lawyer Raphäel Lemkin’s book Axis Rule in Occupied Europe published in 1944. It was developed to describe the events and Nazi policies which led to the Holocaust, though it was also a response to previous events which had taken place throughout history where particular groups were targeted with the aim of their elimination. Soon after, in 1946, genocide was recognised by the UN General Assembly as a crime under international law in A/RES/96-I. Here the term “genocide” was defined as “a denial of the right of existence of entire human groups”. The resolution further clarified that genocide occurs when a racial, religious, political or other type of group is destroyed, entirely or in part. Though such a resolution carries political weight, only a resolution by the UNSC is able to bestow legal obligations. This makes holding perpetrators to account difficult, as UN Member States are forced to deal with the issue through, for example, diplomatic means or sanctions instead of being able to rely on a court of law.
Genocide in contemporary law
The creation of the Convention on the Prevention and Punishment of the Crime of Genocide in 1948, which codified the crime of genocide into international law, has been vital for the ability to prosecute those who have committed acts that breach the standards set in the Convention. These include acts such as killing and causing serious bodily or mental harm, with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group. Though the Convention has not been ratified by all States, it is accepted widely enough that the International Court of Justice (ICJ) has frequently referred to it as customary international law, thus binding all States. Furthermore, the prohibition of genocide is considered as jus cogens, or a peremptory norm, meaning that it is in no circumstance to be derogated from. Jus cogens status also warrants all States to take measures against acts of genocide, which can for example be done by invoking state responsibility. The Convention itself also calls for all its parties to “prevent and punish” acts of genocide, leaving no doubt as to the seriousness of the crime in international law.
How the legal definition of genocide can be linked to the Yazidi
Considering the presence of the aforementioned necessary motive of destroying, in whole or in part, a national, ethnical, racial or religious group, the various acts committed by ISIS against the Yazidi fall within the international legal framework for genocidal crimes; ISIS sought to suppress the community by separating Yazidi men and women and conducting forced conversions. Those refusing to convert were executed. Moreover, Yazidi girls and women were trafficked, facing rape, beatings and other forms of enslavement. These type of acts can also qualify as genocide according to Akayesu, as long as the motive of destroying, in whole or in part, a national, ethnical, racial or religious group is present. As all of the abovementioned acts were committed in the belief that the Yazidi are devil-worshippers, making them heretics in the eyes of ISIS, one can clearly see a motive to annihilate the community, in whole or in part, because of their religious beliefs.
Yet oftentimes ISIS fighters are prosecuted on charges of terrorism, or terrorism related crimes. Though this is much easier to establish, it lacks the gravity that a genocide conviction holds. Moreover, terrorism is a crime against the State, meaning that it fails to actually recognise and remedy the crimes against the Yazidi. Therefore, one should advocate for prosecuting higher level perpetrators for genocide in regard to the crimes committed against the Yazidi. For lower level perpetrators, one should focus on simply prosecuting for the acts committed, whether it be rape, murder, or something else. This may in the end amount to, for instance genocide or war crimes, though it may also not. This particular approach should be adopted because prosecuting genocide is not only difficult, requiring rock solid evidence, it is also extremely time consuming, halting the process of convicting perpetrators effectively. Thus, this manner of dealing with perpetrators would still bring about rightful outcomes with severe enough punishments to mirror the gravity of the acts committed without stagnating the justice system.
The recognition of genocide is highly political
Keeping the above in mind, not only does the international community tend to take the easy way out by choosing more trouble-free claims through which to prosecute ISIS fighters, a large number of members of the international community, including those who have ratified the aforementioned Convention and Statute, have not actually recognised the atrocities committed against the Yazidi as genocide. This is highly questionable especially since UN bodies such as UNHRC and UNITAD have found compelling evidence for genocide and have officially recognised it. Recognition is highly desired as it would give rise to an obligation, set by the Genocide Convention, to prevent and punish the crime. States have discretion as to how they wish to fulfill the obligation, which can be seen from Bosnia v Serbia where the court required States to simply do their best to prevent genocide, never actually going into specifics as to what should be done. Referral to the UN is not enough to extinguish this obligation. Thus, the fear of acquiring any obligations might still be the very reason why recognition has been sluggish. States would have to make some active effort against the perpetrators. This would be burdensome for some, as resources would have to be poured out into issues that States might not wish to prioritise. By evading recognition, States avoid taking on an unwanted and vague burden and escape legal consequences that would result from the breach of convention.
Even so, a step in the right direction has been recently taken by the Dutch Parliament, who joined a growing number of European nations and international organisations in recognising that the crimes committed by ISIS against the Yazidi people amount to genocide and crimes against humanity. This hopefully will give a much needed push for wider recognition of the Yazidi genocide. Additionally, YLN urges concrete action by calling for the Netherlands’ specialised international crimes units to be given the capacity to proactively open and carry out structural investigations into large-scale crimes. This step would permit better access to justice for the Yazidi community in the Netherlands and elsewhere, helping the Yazidi to finally seek closure and rebuild their community.
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Sources:
United Nations office on Genocide Prevention and Responsibility to Protect, ‘Genocide’ https://www.un.org/en/genocideprevention/genocide.shtml
UNGA 55th plenary meeting A/RES/96-I (1 December 1946) https://documents-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/033/47/PDF/NR003347.pdf?OpenElement
Convention on the Prevention and Punishment of the Crime of Genocide 1948 , Art 2
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar)
UNGA, 74th session A/74/10 ‘Report of the International Law Commission 71st session’ (2019) https://legal.un.org/ilc/reports/2019/english/chp5.pdf
Convention on the Prevention and Punishment of the Crime of Genocide 1948, Art 1
Rome Statute of the International Criminal Court 1998, Art 5-6
UNHRC 32nd session A/HRC/32/CRP.2 (2016), 8-9
Yazda ‘Genocide Recognition International Recognition of the Yazidi Genocide’
https://www.yazda.org/genocide-recognition
UN news ‘ISIL crimes against Yazidis constitute genocide, UN investigation team finds’ (10 May 2021) https://news.un.org/en/story/2021/05/1091662
Convention on the Prevention and Punishment of the Crime of Genocide 1948