Rape as a Tactic of Terror: Holding the Islamic State Accountable

Earlier this year, human rights lawyer Amal Clooney spoke at the United Nations to press the global body to hold the Islamic State accountable for rape and other crimes committed as part of its reign of terror in Iraq and Syria. She was joined by her client Nadia Murad, a 2016 Nobel Prize nominee who escaped her Islamic State captors after being held in Mosul by the terror group as a sex slave when she was only 21-years old. Nadia shared her own horrific story with the UN in 2015. As Mosul and eventually Raqqa are freed from Islamic State control, the world is able to hear from more female survivors. The New York Times recently reported that during the Mosul operation, around 180 women and children from the Yazidi ethnic minority in Iraq were rescued from the Islamic State, which had kidnapped, sexually abused, and sold many of these captives as sex slaves.

Now, as we approach the opening of the UN General Assembly this September, the time has come for the Security Council to support accountability for the crimes the Islamic State has committed against Nadia and thousands of other Yazidi women like her. What better way to uphold the Security Council’s Resolution 1820, which it passed in 2008 to condemn the use of sexual violence as a weapon of war?

When the Islamic State attacked the Yazidi in Sinjar in 2014, it separated the men and boys from the women and girls. Many of the males were killed, while younger females were abducted, raped and sold into slavery. According to a pamphlet issued by the Islamic State, the fact that the Yazidis are an ethno-religious minority and not Muslim provided the ostensible justification to treat and sell Yazidi women and children as sex slaves. Those who later escaped, reported being repeatedly bought and sold by Islamic State fighters, raped frequently, forced to marry, coerced into converting to Islam, confined in their rooms, and separated from their children.

Last year, after some reluctance to use the label “genocide,” then- Secretary of State John Kerry concluded that the Islamic State was “responsible for genocide against groups in areas under its control including Yazidis, Christians and Shiite Muslims.” That statement came on the heels of a bi-partisan non-binding resolution unanimously adopted by the U.S. House of Representatives by a vote of 393-0, which said the Islamic State’s atrocities against Christians, Yazidis and other ethnic and religious minorities in Syria and Iraq, amounted to war crimes and, in some cases, “genocide.”

While President Donald Trump has de-emphasized human rights in his foreign policy, he has prioritized the protection of Christians and religious minorities – though in a terribly misguided way, often through anti-Muslim rhetoric and policies, which are fundamentally at odds with America’s commitment to religious freedom, tolerance, and equality. Still, seeking justice for the Yazidis who have survived rape and other crimes may be a cause the Trump administration could get behind, given its professed sympathy for religious non-Muslim minorities and its apparent commitment to ending human trafficking. At a recent event releasing the State Department’s congressionally mandated annual Trafficking in Persons report, Ivanka Trump, the president’s daughter, stated, “Ending human trafficking is a major foreign policy priority of the Trump administration.” Plus, after meeting with Clooney and Murad, U.S. Ambassador to the UN Nikki Haley tweeted, “The U.S. is committed to bringing ISIS to justice, not just on the battlefield, but in the judicial system as well.” And more recently, on July 27, State Department spokeswoman Heather Nauert told reporters, “When we look at Iraq and we look at what has happened to some of the Yezidis, some of the Christians, we – the Secretary believes and he firmly believes that that was genocide.” 

Rape and other forms of sexual violence are an essential part of the political economy of the Islamic State. The terrorist group uses rape, sexual slavery, and other forms of sexual violence to recruit new fighters; to terrorize communities into compliance and displace them from strategic areas; to torture and extract intelligence; to compel conversion and indoctrination through forced marriage; and to generate revenue through sex trafficking, slave trade, and ransoms.

Just as international prosecutors have secured convictions for rape as a “weapon of war” in more traditional wars, so too must accountability be sought for rape as a “tactic of terror” – a phrase used by Zainab Bangura, the former UN Special Representative of the Secretary-General on Sexual Violence, to refer to this troubling phenomenon. Sexual violence during armed conflict can violate the laws of war and in some cases amount to torture. Under the doctrine of command responsibility, leaders can be prosecuted for war crimes when they knew or should have known that their subordinates were committing such crimes and failed to take adequate steps to prevent the crimes or punish those responsible.

Securing convictions and sentencing perpetrators, particularly of Islamic State leaders, would undercut the terrorist organization’s strength at the top, discourage potential recruits, and deter subordinates from committing crimes. Plus, prosecutions could provide survivors with at least some measure of justice. While holding the Islamic State accountable for sexual violence, particularly the systematic rape of Yazidi women and girls, would help disrupt the terrorist organization’s authority and resources, finding a court with jurisdiction over these crimes is a challenge.

Iraq has not joined the International Criminal Court (ICC); the Islamic State is not a recognized state and therefore lacks the option of joining the Court (though its members could be potentially prosecuted before the ICC); and domestic courts face obstacles in addressing these complex transnational crimes. Despite the difficulties, the ICC is the most promising venue to investigate and try these cases.

Ideally, Iraq should accept limited ICC jurisdiction with respect to “the crime in question” under Article 12(3) of the Rome Statute, which provides for a nonparty to the Statute to accept the jurisdiction of the Court. If Iraq chooses not to, the UN Security Council should refer the case to the ICC under Article 13(b) of the Rome Statute, as it did with genocide allegations in the Darfur region of Sudan. In such an instance, the Council would refer the “situation”—not a particular actor or party—growing out of the Sinjar massacre, or it could designate the situation as the territory controlled by the Islamic State, which includes parts of Iraq and Syria. Although the ICC prosecutor could investigate crimes committed by the governments and militaries of Iraq or Syria, as a practical matter, the Office of the Prosecutor typically narrows the investigation to particular incidents or patterns of crimes, and would thus likely only focus on crimes committed by the Islamic State if the “situation” is limited. However, obtaining the sufficient number of votes—and avoiding a veto— in the Security Council could be challenging.

If Iraq and the Security Council fail to act, the ICC Prosecutor should, on her own motion, initiate an investigation under Article 15(1) of the ICC Statute “on the basis of information on crimes within the jurisdiction of the Court.” As the ICC Prosecutor began receiving reports of the Islamic State’s atrocities against the Yazidi, she indicated an initial reluctance to act, because the Islamic State is primarily led by nationals of Iraq and Syria, and yet neither country is a party to the Statute. And yet, there are mid-level leaders in the Islamic State who, as foreign fighters in Iraq, are nationals of countries that are parties to the ICC, which provides a potential jurisdictional hook.

In an effort to press the Prosecutor on a possible investigation, in September 2015, Yazidi activists worked with Luis Moreno-Ocampo – who had by then stepped down as the ICC’s first prosecutor – to petition the Court on the question of genocide in Sinjar since August 2014. Over the past year, Clooney has taken up this cause and is highlighting not only the genocide against the Yazidi, but also bringing greater attention to the use of rape as a tool of terrorism.

Action by Iraq or the Security Council would be preferable. As an institution created and essentially funded by states, the ICC depends on governmental support. But by acting on her own, the ICC Prosecutor may ultimately leverage Iraq or the Security Council to act. Even in the absence of such action, she should pursue an investigation with a view to eventual prosecutions, assuming the evidence and law warrant it.

The ICC has a proven track record on international crimes. It has experience with cases involving nonstate armed militias (such as with issuing an arrest warrant for Joseph Kony, the elusive leader of the Lord’s Resistance Army), as well as with cases establishing accountability for sexual violence as a tool of war (such as with convicting former Congolese Vice President Jean-Pierre Bemba in March 2016 for mass rapes committed by his rebel group).

Since Clooney, a British barrister, began advocacy on behalf of the Yazidi, the United Kingdom has led an initiative to gain Security Council approval for setting up an investigation into the Islamic State’s crimes in Iraq. While such a move would fall short of an ICC referral, it could help preserve vital evidence before witnesses flee or their memories fade. The U.S. government might object to Security Council involvement, given the Trump administration’s general opposition to international institutions. However, when the Security Council made the ICC referral in the Darfur case, the United States abstained (under President George W. Bush), rather than blocking it.

Another option for accountability would be for the Iraqi courts to prosecute the Islamic State, but it would be challenging for Iraqi prosecutors to handle these cases, given their relative lack of resources and expertise with such crimes, and the UN and NGOs have highlighted serious concerns over due process in Iraqi courts. Yet another avenue would be for Iraq and the United Nations to establish a hybrid tribunal, combining national and international elements. However, hybrid tribunals have a mixed record and are expensive. By contrast, the ICC’s advantage is its economies of scale, given its existing infrastructure, investigators, prosecutors, translators, and court reporters.

One way or another, as part of the campaign to defeat the Islamic State, the Security Council and Iraq should support accountability for the terror group’s use of rape and other forms of sexual violence, as convicting and imprisoning its top leaders for these crimes will take them off the battlefield and undermine the revenues gained from sex trafficking.

 

Image: Nadia Murad Basee Taha with Amal Clooney, Barrister at Doughty Street Chambers and Legal Representative for Yazidi survivors, at the UN in New York March 9, 2017 (UN Photo/Rick Bajornas) 

About the Author(s)

Catherine Powell

Professor at Fordham Law School, Adjunct Senior Fellow at the Council on Foreign Relations (CFR), Member of the Board of Editors for the American Journal of International Law. Follow her on Twitter (@ProfCatherine).