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The Islamic State, Genocide, and Gender Discrimination

Slowly but surely, over the past two years, the UN and national governments have acknowledged that what the Islamic State is doing to the Yazidi religious minority in Northern Iraq and Syria is genocide. But for all the gravity of that word, genocide continues, daily, hourly, every moment. Right now, Yazidi women and girls are being enslaved and raped. The international community speaks to their torture but continues to do nothing about it. As if to add symmetry to this horror, these two phenomena — the ongoing nature of the genocide and governments’ failure to address it — have the same cause: gender discrimination.

But wait, how can enslavement and rape amount to genocide? Isn’t “genocide” massive scale killing, events like the Holocaust, and the Armenian, Rwandan, Bosnian, and Darfuri genocides? Massive scale killing is in fact only one of five ways to carry out genocide. The Genocide Convention and the International Criminal Court define genocide as: intentionally destroying, either entirely or in part, a national, ethnic, racial or religious group by: (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; (4) imposing measures intended to prevent births within the group; and (5) forcibly transferring children of the group to another group.

In other words, genocide is actually much broader than mass killing. In fact, sexual violence as the Islamic State practices it fits into any one of the last four ways to commit genocide.

Before going into the different ways the Islamic State is committing these four non-killing forms of genocide, I should note that there is no question about the Islamic State’s overall genocidal intent—the Islamic State aims to destroy the Yazidis as a group, to wipe them off the planet. Ordinarily, this is the trickiest part of proving genocide, but the Islamic State’s public pronouncements have made quite clear they do not believe Yazidis have a right to exist. 

Non-Killing Form of Genocide #1: Infliction of Serious Bodily or Mental Harm

Genocide by inflicting serious bodily or mental harm is actually a quite straightforward in this case. Rape and sexual violence cause serious bodily and mental harm. A special court set up to deal with the Rwandan Genocide found that rape is one of the worst ways to inflict such harm because the suffering is both physical and mental. The Islamic State has an entire system dedicated to sexual slavery and rape. It captures Yazidi families, separates them, kills the men, recruits the boys, and sells the women and girls into sexual slavery. Once in captivity, Yazidi women and girls are raped, forcibly impregnated, forcibly married, and converted to Islam. Admittedly, when framed in this way, the case for genocide is quite easy to make — obviously these things cause serious bodily and mental harm — but what is worth noting is that this treatment is specifically designed and targeted against women and girls.

Non-Killing Form of Genocide #2: Inflicting Conditions to Destroy

How is the Islamic State “deliberately inflicting conditions of life intended to bring about the physical destruction of the group” – against Yazidi women? Well, the conditions do not have to destroy the group immediately, but can be things that take quite a bit of time. For example, in Rwanda a court found that deliberately raping women to infect them with HIV could amount to these conditions.

Further, policies of rape and sexual violence are particularly damaging in cultures, like Yazidism, that emphasize chastity before marriage. Under Yazidi customs, sex, and marriage with people outside the faith is not allowed and is considered shameful to the whole family. A woman who is raped is not considered fit for marriage.

Putting these two pieces together, if imposing conditions that slowly destroy a group counts as genocide, and the Islamic State is raping and forcibly marrying Yazidi women and girls which means they cannot or will not then go an marry other Yazidis, then that will destroy the group, and constitutes genocide.

Non-Killing Form of Genocide #3: Preventing Births

Genocide is also committed by imposing measures intended to prevent births within a group. There is no set or list of measures that definitively constitute genocide, instead courts look at acts on a case-by-case basis. In the past, courts have found genocide in measures such as separating the sexes, rape, and setting up obstacles to marriage.

These are precisely the things the Islamic State is doing to the Yazidis. The Islamic State kills Yazidi men, and kidnaps, enslaves, and rapes Yazidi girls and women. According to Yazidi culture, membership in the group requires both parents to be Yazidis. By preventing Yazidi from marrying other Yazidi and forcibly impregnating Yazidi women, the Islamic State imposes measures that make it impossible for there to be further births within the group, thus constituting genocide.

Non-Killing Form of Genocide #4: Forcibly Transferring Children

Finally, there is genocide by forcibly transferring children from one group to another group. Report after report, news story after news story, detail the Islamic State’s system of capture and sale of Yazidi girls to terrorists in its ranks. By definition and design, forcibly transferring children — that is, genocide — is fundamental to the Islamic State’s ideology and governance.

At the end of the day, these four ways are it — this is how the Islamic State is committing genocide by targeting Yazidi women: by causing serious mental and bodily harm, by imposing conditions to destroy them, by preventing Yazidi births, and by forcibly transferring Yazidi girls to Islamic State fighters. It is not really all that complicated.

But, if it isn’t complicated, why haven’t governments formed coalitions to rescue and protect Yazidis? Why hasn’t the UN Security Council weighed in on the matter? Why is it still happening?

The reason has to do with genocide law.

Genocide is bad — that is not news to anyone. It is so bad, in fact, that it is one of the crimes most prohibited under international law. As a general matter, international law has built into it some room for deviations from custom and is notorious for having grey or blurred lines about what is and what is not allowed. But not with genocide; there is a bright-line rule prohibiting genocide no matter what. No deviations, no grey areas. International law does not tolerate genocide.

The prohibition against genocide is so strong that the World Court has said that when it is occurring all states are required to act to prevent and punish it. The Court also said that the obligation is one of conduct, not of result. This means that in order to fulfill the obligation to prevent or suppress or punish, states must at least try measures to stop or end genocide, even though they do not have to succeed.

Taking a step back, it is no wonder that states are trepidatious to get involved in taking action to stop the Yazidi genocide – they do not want to trigger their liability or legal obligations. This is not a far out theory, during the Rwandan genocide, Madeline Albright is reported to have informed State Department staff to refrain from calling what was going on a genocide to avoid the US incurring legal obligations.

This time around the US is doing slightly better. In August 2014, President Obama stated that U.S’s targeted airstrikes in Sinjar were key to “prevent[ing] a potential act of genocide.” In March 2016, Secretary of State Kerry recognized that ISIS is committing genocide against the Yazidi and other minorities in Iraq. Administration officials, though, have been careful to caution that the declaration does not mean that the US is legally obligated to step up its continuing battle against the Islamic State.

The International Commission of Inquiry on Syria recently found that genocide is ongoing in Iraq and recommended that states, even those currently fighting ISIS, need to do more, including taking action to rescue the 3,200 women and girls still in captivity.

Obviously, not taking action is repugnant because genocide is intolerable, which is the whole reason the prohibition against it is so strong. But it is also particularly egregious with respect to the Islamic State’s genocide because of the varied, specific, and targeted ways this genocide is being carried out against women, and the general disregard for the plight of women in conflict.

The backdrop of all of this is that women have traditionally taken a back seat to all things in armed conflict. War has long been considered a man’s realm. Men fought wars, men were killed in wars, men led and conquered in wars, and men triumphed, negotiated, made peace, and returned home in glory after wars.

This paradigm is still very much in our psyche. Sure, we acknowledge that more and more civilians are being displaced or affected by war, but when you get to brass tacks, the response and regulation to war is still very much driven by the masculine.

Take, for example, the use of rape and sexual violence as a weapon of war. It happens, we know it, and politicians say it. Parties to conflict sometimes use rape as weapon or tactic to terrorize, destroy and erode their enemy. But, rape is not treated like other illegal weapons. For example, at the same time that President Obama warned the Syrian government that the use of chemical weapons was a “red line,” the Syrian military was carrying out a systematic and widespread campaign of sexual violence. Rape was not enough to trigger international action. But…why? Why didn’t this systemic use of rape as a tactic of war cause the same international outcry?

The use of chemical weapons is worse to us, is more of an offense, because it kills soldiers, men, on all sides. It fits within that paradigm of war of men fighting men. So in the regulation of war, chemical weapons are something that we take seriously. And chemical weapons are hardly the only example; mustard gas, blinding laser weapons, exploding bullets, land mines, sea mines and white phosphorous are all prohibited tactics of war. Sexual violence is not.

It is not news that sexual violence and rape have been features of conflict since the beginning of wars. But in our post-World War II world, with the Geneva Conventions, international criminal courts, calls for accountability, universal agreements on minimum standards of treatment for civilians and POWs, and rules on the who, what, when, where and why of military attacks, rape in conflict is still endemic, with little to no accountability. Despite the fact that we have actually done reasonably well in terms of holding ourselves to higher standards when at our worst–the major exception is that we have almost entirely ignored women.

This same gender oversight occurs in the face of genocide. The Islamic State is currently carrying out genocide in very specific, intended and targeted ways against Yazidi women and girls. The world is failing to recognize the gender elements underpinning this ongoing atrocity. This failure is echoed by the further failure of the global community to take any concrete action to stop the daily tortures facing Yazidi women and girls. However shameful, the general reluctance to take action is not surprising — it is another example in a long line of omissions and failures to address a space for women in conflict.

At the end of the day, taking meaningful action at the state level to stop the Yazidi genocide is not only about fulfilling legal obligations (which it is very much about), it is also critical to finally starting a dialogue about giving women victims the dignity of justice and the promise of security.

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About the Author

Staff Attorney at The Global Justice Center