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ISIL = Genocide?

As we have discussed, the United States has launched further military action in Iraq. These operations follow limited airstrikes against the Islamic State of Iraq and the Levant (ISIL) in Kurdistan earlier this month, ostensibly to avert the fall of Erbil (the Kurdish capital), protect U.S. diplomatic personnel and other U.S. citizens, and break the siege on the mountain where thousands of Yazidis had sought refuge. (The President’s earlier statement is here). The articulated motives of the earlier operation invoked two distinct strands of the doctrine of humanitarian intervention: the extraterritorial defense (1) of nationals and (2) of others when the territorial state is unable, or unwilling, to provide the necessary protection. Some argue that states have the right to use military force on such grounds in the absence of consent of the territorial state. In this instance, of course, Iraq consented and invited U.S. action, but Syria is a more difficult case. The rescue of one’s nationals without territorial state consent has a long history, including the 1976 Israeli operation at the Entebbe airport in Uganda to rescue Israeli civilians and others from German and Palestinian hostage-takers. The legality and legitimacy of the rescue of others without the territorial state’s or the Security Council’s consent, as we have often discussed, remains disputed.

Humanitarian Intervention & The Prevention of Genocide

Examples of this latter variety of humanitarian intervention include the 1971 invasion by India of Bangladesh (then East Pakistan) to protect the Bengali population from West Pakistani depredations; the invasion by Vietnam of Cambodia to oust the Khmer Rouge in 1978, Tanzania’s 1979 efforts in Uganda to end Idi Amin’s cruel reign, and—of course—Operation Allied Force in Kosovo (1999). Some would argue that humanitarian intervention in defense of others is now subsumed under the Responsibility to Protect doctrine, the third pillar of which envisions military action—as a last resort—when civilians are threatened with grave harm. The most authoritative, and recent, articulation of R2P, however, envisions the deployment of military force solely under the aegis of the Security Council. Whether the ancient concept of humanitarian intervention remains available to states—acting singly or jointly—when action at the Security Council is blocked remains a both compelling and contested international law question.

To many, the threat of genocide offers the most urgent scenario for the continued viability of some doctrine of humanitarian intervention absent Security Council approval or the consent of the territorial state. And yet, any authorization to use force in the face of an unfolding genocide would have to come from customary international law. Although the Genocide Convention, which enjoys 146 members including Iraq and Syria, clearly states that its object and purpose is to ensure both the prosecution and the prevention of the crime of genocide, the treaty is primarily penal in nature: it establishes genocide as an international crime, outlines the elements of genocide, and identifies punishable forms of liability (conspiracy, incitement, attempt, and complicity). In particular, Article II of the treaty defines genocide for the purpose of the Convention as:

any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

  1. Killing members of the group;
  2. Causing serious bodily or mental harm to members of the group;
  3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
  4. Imposing measures intended to prevent births within the group;
  5. Forcibly transferring children of the group to another group.

As an international crime, genocide thus contains three elements that together distinguish it from other forms of crimes against humanity, war crimes, persecution, mass killing, common murder, or mayhem.

  • First, genocide involves the targeting of members of particular protected groups: racial, religious, ethnic, or national groups.
  • The second element of genocide, the actus reus or criminal act, consists of a range of destructive acts. Importantly, however, genocide can occur even without full-scale mass murder.
  • Third, the mens rea or criminal intent element of genocide is the specific intent to destroy the protected group in whole or in part.

The treaty obliges the state on whose territory genocide is occurring to assert its criminal jurisdiction over perpetrators and authorizes the exercise of international jurisdiction over the crime.

By contrast, the preventative provisions in the Convention are frustratingly indeterminate. Most importantly, Article I of the Convention announces that “the Contracting Parties confirm that genocide is a crime under international law which they undertake to prevent and to punish.” The treaty also contains mechanisms to channel inter-governmental responses to genocide. For example, Article VIII empowers contracting parties to

call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in Article III.

Even if read to their outer limits, however, these provisions do not create a right or a duty to engage in any form of humanitarian intervention over and above what other sources of law may already allow.

The Rhetoric of Genocide

As ISIL traverses Iraq in its effort to establish an Islamist caliphate in the region, a number of minority groups have found themselves in dire jeopardy. In particular, ISIL calls the Yazidi—a distinct ethnic group related to the Kurdish people that follows the Zoroastrian faith mixed with elements of Islam and Judaism—“devil worshipers.” ISIL’s direct targeting of discrete and insular groups such as the Yazidi has raised the specter of another genocide. And yet the international community’s rhetoric around the use of the term remains inconstant.

In reaction to ISIL’s campaign, President Obama has announced that ISIL has “declared their ambition to commit genocide against an ancient people.” In his August 7, 2014, statement, he noted that

ISIL forces below have called for the systematic destruction of the entire Yezidi people, which would constitute genocide

and argued that resolute action was necessary to “prevent a potential act of genocide.” This focus on prevention reflects President Obama’s Atrocities Prevention Initiative, launched in August 2011 with the issuance of Presidential Study Directive No. 10, which announced that:

Preventing mass atrocities and genocide is a core national security interest and a core moral responsibility of the United States.

Secretary of State John Kerry has condemned ISIL’s “genocidal agenda,” and other allies have similarly spoken of a “potential genocide.”

Likewise, a consortium of United Nations human rights experts on the rights of minorities, internal displacement, summary executions, freedom of religion, and violence against women called on August 12, 2014, for “all possible measures [to] be taken to avoid a mass atrocity and potential genocide.” By contrast, the outgoing United Nations High Commissioner on Human Rights, Navi Pillay, has spoken of “horrific widespread and systematic persecution” but not genocide. In a statement on August 25, 2014, she noted:

They are systematically targeting men, women and children based on their ethnic, religious or sectarian affiliation and are ruthlessly carrying out widespread ethnic and religious cleansing in the areas under their control. Such persecution would amount to crimes against humanity.

Amnesty International has condemned the commission of war crimes and acts of “ethnic cleansing” in the region, but has not yet employed the term “genocide.”  Certain media reports (here, here, here) have not been so circumspect, indicating that the commission of genocide against the Yazidi, Christian, and other minority groups is beyond immanent.

Genocide in Iraq?

When it comes to the elements of genocide, the first and second elements are easily satisfied in Iraq. It is problems of proof surrounding the mens rea element of genocide—whether perpetrators are acting with the intent to destroy the group in whole or in part—that may be preventing the unalloyed deployment of the word “genocide” in connection with the ongoing violence.

Protected Groups

The Yazidi are protected groups, along with Christians and other minority religions in Iraq. The situation in Iraq does not present the degree of complexity around the issue of group identity as was seen in Rwanda (where Hutu and Tutsi communities largely spoke the same language, practiced the same religion, and enjoyed the same culture) or Darfur.

Prohibited Acts

Acts that constitute the crime of genocide are occurring in Iraq: individuals have been massacred, villages and livelihoods have been wiped out, and civilian populations have been abused and expelled from their homes. Even children are not spared, and sexual assault is rampant. The Genocide Convention purposefully reaches acts that fall short of murder but that will lead to the destruction of a group, reflecting the concentration camp “death through work” phenomenon of World War II. Accordingly, international criminal tribunals have recognized the concept of genocide by “slow death,” whereby conditions of life are inflicted upon a protected group that may not bring about the immediate death of members of the group, but will eventually lead to that result if implemented over a long period of time. The tribunals have emphasized the importance of examining the cluster of abuses suffered by members of the group and the collective impact of those actions on the survival of the group. This broader conception of genocide reflects the fact that eliminating the members of an entire race or religion, or a substantial part thereof, through outright extermination is difficult work. If that is the goal, it may be much easier to deprive people of their livelihoods, homes, medical care, food, humanitarian assistance, etc.

Mens Rea—Criminal Intent

Determining whether individuals are acting with genocidal intent does not lend itself to easy determination. Criminal intent is an inherently individualistic inquiry, so determining governmental or group responsibility for genocide raises particular questions about whose intent matters: The intent of members of the central authorities or leadership corps who may be designing a genocidal policy, or that of the “foot soldiers” responsible for implementing it? The difficulty of making a conclusive finding that a government has enacted a policy of genocide has led to more circumspect findings by commissions of inquiry (as in Darfur) and the International Court of Justice (as in the former Yugoslavia).

Absent a confession of intent or a revealed genocidal policy, the intent to destroy a group—either as a matter of individual mens rea or a governmental plan—must usually be inferred. The international criminal tribunals for the former Yugoslavia and Rwanda have developed a set of criteria for this purpose, but the result of particular inquiries always turn on their own facts. For example, the tribunals have looked to statements or propaganda condemning the group, acts of violence against cultural symbols associated with the group, other policies of discrimination against members of the group, racial or other epithets used in connection with violence, the sheer number of victims, whether children are included within the victims, patterns and systematicity of violence, the brutality or gratuity of the violence employed, etc.

Evidence of genocidal intent can be obscured where alternative intents or purposes can be identified, hypothesized, or claimed. For example, where violence is occurring within the context of a civil war or a counter-insurgency movement with ethnic dimensions, attacks on a particular group can be framed as part of an armed conflict reflecting political or other discord in an effort to deflect attention from a genocidal policy. For example, the execution of enemy soldiers can appear to be a war crime aimed at members of an opposing force rather than the mass killing of members of a protected group who happen to be soldiers.

The fact that ISIL is apparently offering captured victims the option of conversion over death, as was noted by Pillay in her statement, may be a factor holding back a more resolute finding that a genocide is underway. And yet, the Genocide Convention prohibits a mix of lethal and non-lethal acts. Although the treaty does not prohibit “cultural genocide” per se, acts of forced assimilation when coupled with other forms of violence targeting members of protected groups can contribute to a finding of genocide even absent the complete physical destruction of the targeted group. In any case, given that religious beliefs and heritage are often a fundamental aspect of an individual’s identity or conscience, and religious expression represents a core human right, communities should not be required to surrender or denounce their religion in order to avoid extermination.

The International Criminal Tribunal for the Former Yugoslavia (ICTY) has rejected the argument that it cannot be genocide if there is evidence that a perpetrator relinquished the opportunity to kill members of a protected group. In the case against Goran Jelisić, who called himself the “Serb Adolf,” the Trial Chamber had concluded that because Jelisić did not kill every Bosnian Muslim who passed through the concentration camp he was putatively in charge of, and in fact on occasion issued laissez-passés and appeared to choose his victims at random, he lacked the “affirmed resolve” to destroy the Bosnian Muslim group that is necessary for a conviction for genocide. The Appeals Chamber overturned the acquittal on the grounds that Jelisić’s forwent opportunities and erratic actions did not negate other evidence of his genocidal intent. In particular, the Appeals Chamber determined that the better conclusion was that these random acts of mercy were “aberrations in an otherwise relentless campaign against the protected group.” Thus, if there are other indices of genocide, the fact that not every potential victim is killed or abused is no bar to a finding of genocide.

Does It Matter?

Irrespective of these difficulties of proof surrounding the mens rea of genocide, the question of whether or not the violence in Iraq or Syria constitutes genocide is irrelevant outside the context of an international or domestic criminal tribunal with jurisdiction over events in the region. At the point in time at which state responsibility is at issue and economic, political, and military solutions to mass violence are being contemplated—be it on multilateral, regional, or even unilateral grounds—debating legal semantics about whether violence rises to the level of genocide simply has no place. Indeed, the methodology necessary to determine the commission of genocide is inapt—and the surrounding discourse discordant—when people are being systematically killed and expelled from their homes through violence on a mass scale. What matters is that the level of violence and the risk to humanity has reached a certain threshold. If international law creates a right—or even a duty—to intervene in countries where massive rights violations are occurring, such a right or a duty has long since been triggered in Iraq and Syria.

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About the Author

is the Leah Kaplan Visiting Professor of Human Rights at Stanford Law School and a Professor of Law at Santa Clara University School of Law. She was formerly the Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department. All views are her own and not those of the State Department. Follow her on Twitter (@BethVanSchaack).