Ms. Clooney is counsel to Nadia Murad and other Yazidi victims of genocide. This article is based on a speech delivered at the United Nations on May 12, 2021
The genocide committed by ISIS against the Yazidis in Iraq is one of the gravest crimes witnessed by our generation.
Genocide has been called the crime of crimes: the worst thing any human being could do to another. Yet ISIS committed this crime in plain sight. Instead of covering their tracks, they brandished their weapons and left a trail of evidence. Instead of denying responsibility, they boasted online of their ambition to destroy Yazidis. They made videos of their beheadings. And they established a bureaucracy to administer the sale of women’s bodies between fighters. ISIS acted as though they would never be held to account for their heinous acts.
And, so far, they have been right.
For years, they were not brought to justice. Until survivors like Nadia Murad fought back. Along with Nadia, I urged the United Nations Security Council to establish an investigation – so that the evidence would not be lost and the possibility of justice could be preserved. Thanks to leadership from the United Kingdom, United States and Iraq, and a rare show of unity in the Security Council, a team of experts led by eminent barrister Karim Khan was sent to Iraq. And last week at the UN, Mr. Khan — who becomes the ICC Prosecutor of the International Criminal Court next month — outlined some of his key findings and accomplishments.
The UN team has, for the first time, confirmed that there is “clear and convincing evidence” that ISIS was responsible for genocide against the Yazidis in Iraq. It has established that thousands of men were executed, shot as they fled, or died of starvation as they sought refuge on Mount Sinjar in 2014. And it has confirmed that thousands of women and children were enslaved and subjected to sexual violence with the intent to permanently destroy their capacity to give birth to the next generation of Yazidis. Calling this what it is — genocide — matters to victims. Ask the Armenians how much it matters, even after a hundred years.
The UN investigation team, known as UNITAD, also exhumed mass graves across the Sinjar region and identified 103 Yazidis who were finally laid to rest. This included the exhumation of the remains of Nadia’s mother, and the identification of two of her brothers. This long-awaited chance to say goodbye was an essential step for many families to get some closure – a number of women reported that they felt able to get married or move forward with their lives only after marking this solemn moment. And, of course, this constitutes key evidence for future trials.
The UN team has also gathered thousands of witness statements as well as ISIS travel documents, medical records, payment logs and fighter rosters, DNA, and data from mobile phones and computers. And with the help of cutting-edge technology provided by Microsoft, they used facial recognition alongside this evidence to identify a staggering 1,444 potential perpetrators including 14 principals who are the focus of detailed case files.
These are important achievements. But the investigation was always meant to be the beginning and not the end. The question has always been: where will this evidence be used? There is, as yet, no clear answer. But states that believe in human rights should commit to holding international trials.
What exactly is the counter-argument? Are the crimes not brutal enough? They are the gravest crimes known to humankind. Do the perpetrators deserve to be protected? They are a terrorist group purportedly reviled by all. Are these victims not worth the effort?
One can fairly ask: if the UN Security Council won’t help these victims obtain justice against this group of perpetrators for this crime, then what kind of system do we have? What is its purpose?
The historical record shows that the fuel for violence is impunity. And that we are destined to repeat crimes against humanity if we do not punish them. Justice makes peace possible: because trials allow for attribution of individual blame, instead of collective shame. Future perpetrators are put on notice that there are consequences for their crimes. And victims have a chance to heal.
The victims of ISIS have consistently called for international trials, and Nadia, a Nobel laureate, did so again last week. Of course, this does not exclude the role that national courts can play. Ongoing trials in European courts, for instance, are significant: I represent a Yazidi victim in a trial in Germany that is the first to charge ISIS with genocide. But such trials are necessarily limited in number. And the UN has consistently reported that domestic trials in the territorial states – Iraq and Syria – do not meet international standards.
So an international process is needed. And there are many precedents that could be followed. The Security Council can create a court, as was done for the former Yugoslavia and Rwanda. Iraq’s courts can be provided with international support, as was done for genocide trials in Cambodia. Iraq could create a court by treaty with the UN – as was done for Sierra Leone. Iraq or the Security Council could empower the International Criminal Court to exercise its jurisdiction.
There are many options. But it is not clear that there is political will. Legislation pending in the Iraqi Parliament does not in its current form appear to guarantee the level of international involvement in trials that victims consider necessary, and would not be acceptable if it leaves open the possibility of unfair trials leading to arbitrary sentences and executions. Although Sweden proposed a hybrid tribunal some time ago, the idea did not gain widespread support. Yet experts warn that if something is not done soon, thousands of alleged ISIS members held in makeshift prisons and camps across the region are at risk of a mass breakout and that these detention centers are the “perfect breeding ground for a revival of the terrorist caliphate”. Let us remember that ISIS was Al Qaeda and could regroup once again. It carried out attacks in over 30 countries, killing thousands of people. And ISIS-inspired attacks reached the shores of the United States, killing scores of people in San Bernardino, California, and Orlando, Florida. So for the sake of national security, as well as the victims, action is needed. And it should include prosecutions for serious crimes.
I am hopeful that with new US leadership, there can be new opportunities to revive a legacy of support for international justice. It was an American president who insisted on trials of the Nazis and an American prosecutor who opened the trials at Nuremberg. In the 90s the United States led the way for UN trials for the genocides in Bosnia and Rwanda.
The United States was also among the first to declare that ISIS’ actions against the Yazidis amounted to genocide. But when I addressed the Security Council two years ago, the policy of the United States was the same as Russia’s: no support for an international court. Secretary of State Antony Blinken has now signaled a new approach: saying that “human rights” will be put back to “the center of American foreign policy” and that he will revive America’s legacy of support for the international rule of law. This case would be a good place to start.
It is often said that criminal trials can help to restore the dignity of victims by providing a public acknowledgment of wrongs that they have suffered. But a trial would not restore the dignity of Yazidis– this was never taken away. Nor can I imagine anything more dignified than survivors, like Nadia, seeking justice rather than revenge. Dignity means being worthy of respect. And it is our dignity – not theirs – that is at stake.
Editor’s note: Readers may also be interested in Amal Clooney and Zainab Ahmad, An ISIS Torturer Was Complicit in Genocide. The U.S. is Making It Hard to Bring Her to Justice, Washington Post Opinion, May 11, 2021.
Photo credit: An aerial picture shows mourners gathering around coffins wrapped with the Iraqi flag during a mass funeral for Yazidi victims of ISIS in the northern Iraqi village of Kojo in Sinjar district, on February 6, 2021. The remains of Yazidi victims have been returned for burial in Kojo, six years after the ISIS swept through northern Iraq. (Zaid Al-Obeidi/AFP via Getty Images)