Genocide of the Yazidis: Can the logic of genocide law be extended to also protect sexual minorities?

While the Syrian regime headed by Bashar Al Assad has committed horrific crimes against its own people amounting to both crimes against humanity and war crimes, the only group to yet commit what has been characterized as the ‘crime of crimes’, namely genocide, is ISIS. The 2016 Report of the Commission of Inquiry on Syria, for the first time, makes an argument that ISIS, in addition to committing war crimes and crimes against humanity, has also committed and, is committing an ongoing genocide against the Yazidi people.

In its Report titled, ‘They came to destroy’, the Commission powerfully documents how ISIS is intentionally destroying a religious group, namely the Yazidis. The elements of the intent to destroy are derived from the way ISIS implemented its policy vis a vis those it captured, for example the entire Yazidi population in the Sinjar region of Northern Iraq. Those captured were divided into three groups: men and boys aged approximately 12 and above; women and children; and boys aged seven and above. As the Commission notes, ‘each group suffered distinct and systematic violations, sanctioned under ISIS’s ideological framework.’ What this translated into was summary execution of men and older boys who refused to convert to Islam, the sale of women and girls to ISIS fighters as slaves, and the forcible conscription of young Yazidi boys as cadre for ISIS’s armed forces.

ISIS engaged in acts of killing Yazidi men and boys and selling into slavery and raping Yazidi women, all with the specific intent of destroying the Yazidi community.  In all the crimes committed by ISIS in the Sinjar region, according to the Commission, the only group who was targeted for systematic extermination was the Yazidis. The Christians for example were allowed to continue to live in the Sinjar reason as long as they paid a religious tax (jizia) as they were, according to ISIS, ‘people of the book’.[1] However the Yazidis not being ‘people of the book’ were targeted for elimination from the territory of the Caliphate.

Thus the Commission concludes that ISIS had the ‘intent to destroy, in whole or in part a national, ethnic, racial or religious group’ which is the essence of the crime of genocide. ‘ISIS commits the crime of genocide against individual Yazidis, as an incremental step in their overall objective of destroying this religious community.’

In its analysis the Commission is able to demonstrate that all the acts contemplated under the Genocide Convention as part of the crime of genocide have been committed by ISIS.[2] Thus the focus is not only on killing members of the group but also sexual violence, sexual mutilation, torture, enslavement, prevention of pregnancy, transferring of children from their parents to ISIS custody etc. In the Commission’s analysis all these acts are intentionally inflicted to destroy the group, namely the Yazidis.

While there is no argument that the Yazidis are a protected group under the international legal framework defining genocide, the question is can the protection be extended to other groups targeted by ISIS?

One other group who is similarly targeted for extermination by ISIS are what the 10th Report of the Commission of Inquiry characterizes as sexual minorities. ‘Sexual minorities have been executed by ISIS and Jabhat Al-Nusra. The Commission continues to investigate reports of ISIS fighters throwing gay men off high buildings, and their being beheaded by Jabhat Al-Nusra.’[3]

Documentation by Outright International indicates that since the birth of ISIS across Syria and Iraq, 41 people till now have been executed because they were suspected to be homosexual. [4] Clearly the numbers are nowhere in the range of the destruction visited on the Yazidi community, however what is to be remembered is that for understanding the crime of genocide, the key element accompanying the actus reus (killing, enslavement, etc.) is the mens rea (intent to destroy the group in whole or in part).

As scholar Payam Akhwan notes, ‘Genocide is unique because of its element of dolus specialis (special intent). It is this mens rea that gives genocide its speciality and distinguishes it from ordinary crimes and other international crimes and makes it the crime of crimes.’ [5]

When ISIS’s crimes are characterized as genocide, the understanding which one brings to the rationale of these crimes is that they are the product of an ideological thinking which believes that the world would be better without a particular group of people in it and that by destroying those they consider impure, the perpetrators are creating a more perfect society. It is precisely this mode of thinking about the world when it is accompanied by the acts prescribed under the legal definition of genocide that the crime of genocide seeks to punish. As Payan Akhawan put it succinctly, ‘the crime of genocide is intent rather than result oriented in terms of its relationship to harm’[6]

Seen from this perspective, the crimes of ISIS against sexual minorities should also be investigated as to whether they as a group are similarly targeted for destruction. One should note that at this point there is very little documentation of the bureaucracy within which the sexual minority population is targeted for extermination. One of the few documentations of the way the death sentence is carried out is the one by Outright International who document 41 cases of homosexual men who were executed after a trial in which the accused were found to have violated the commandments of the Shariat.

To give two illustrative examples[7]

On August 2, 2015, the Islamic State’s Information Office in Hama Province (Syria) issued a video and photo report about the execution of three men on sodomy accusations and for spreading homosexuality. The Islamic State in its video stated that it is carrying out “the imposition of religious punishment against those who spread corruption on earth,” specifically in this case “promoting the acts of the people of Lot amongst Muslims,” thereby trying to change the “innate character of the Muslims.”

A translation of the only judgment by an ISIS court which sentences two persons to death is worth citing in full.

The Islamic State

Neinava Province

Islamic Court

Serial number : 1111

Date: 17-5-1436

3-8
Praised be the Lord of the Universe and prayers and peace be upon our Mater Mohammad and upon all his household and his disciples.
And now:

The Almighty God has sent prophets and messengers and sent down books and legislated punishment to protect the five fundamental necessities which included religion, lives, belongings, honor, and wisdom. One of these five necessities is honor. The Almighty God, in order to protect honor, has imposed punishments for adultery and the acts committed by Prophet Lot. [The Prophet peace and prayers be upon him] had said “if you find a person who has committed the act of the people of Lot, you should kill him, whether they are the top or the bottom.”

In front of the Islamic court of the Neinava province, it was proved that:

1- [name blurred]

And
2- [name blurred]

Have repeatedly committed the act of the people of Lot, based on their own confessions. Therefore the Islamic Court will carry out the God’s punishment on them, to punish them for their deeds and to teach a lesson to those who witness it. The God is able of managing his affairs but most people are unaware.
The seal of the Islamic State, department of justice and judgment.
March 8

The judgment itself indicates that the death sentence, within ISIS’ logic is not arbitrary and irrational but rather a punishment for the violation of the prohibition in the Shariat on engaging in the ‘act of Lot’.  Repeatedly engaging in the ‘act of Lot’ as proved by the confessions of the accused is a violation of ‘honour’, which is one of the ‘five fundamental necessities’ which God aims to protect by imposing the punishment of death for those who violated this commandment. Hence the death penalty is the result of violating what according to ISIS is a violation of the God ordained fundamental necessity of defending honour.

What the judgment shows in chilling detail is that there is a legal and religious sanction for eliminating those found to be engaging in homosexual acts. As with the Yazidis, the killing of homosexuals is not an arbitrary vengeful act but the outcome of a ‘religious’ logic clothed in a specifically ‘legal’ form which prescribes the elimination of homosexuals.

The importance of analyzing the bureaucratic legality within which extermination is ordered and executed cannot be underestimated. It bears recalling that the first work to coin the term genocide, Raphael Lemkin’s Axis Rule in Occupied Europe was a detailed analysis of the laws, decrees and proclamations targeting the occupied population living under Nazi rule. Central to Lemkin’s argument is that genocide was a product of Nazi legality.[8]

The legalized murder of homosexuals by ISIS is reminiscent of another forgotten holocaust, namely the Nazi persecution and destruction of the first homosexual sub-culture in the modern world i.e. in Wiemar, Germany. Apart from the genocide perpetrated against the Jews, the Nazis also systematically aimed to eliminate Communists, the disabled and the homosexual community. Referring to the systematic manner in which the homosexual community was eliminated, Grau says that “the declared aim of the Nazi regime was to eradicate homosexuality. To this end homosexual were watched, arrested, registered, prosecuted and segregated; they were to be re-educated, castrated and [-] if this was unsuccessful – exterminated.” [9]

Introduction

Enforced  Disappearances in Syria: Impact on families

Re-imagining the Protection of the family Resolution at the Human Rights Council

Sexual violence as a continuum affecting both women and men

Genocide of the Yazidis: Can the logic of genocide law be extended to also protect sexual minorities?

Is genocide the ‘crime of crimes’?

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[1] The Christian minority while not the targets of genocide were definitely the targets of  persecution which  means the ‘intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity’.  If persecution is systematic and widespread, then it’s possible to make the case that a crime against humanity was committed with respect to the Christian community.

[2] Article II of the Convention on Prevention and Punishment of Genocide defines genocide: In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.

[3] 10th Report of the Commission of Inquiry,

[4] https://www.outrightinternational.org/content/timeline-publicized-executions-alleged-sodomy-islamic-state-militias

[5] Payan Akhawan, Reducing genocide to law, Cambridge University Press,  Cambridge, 2014. p.46.

[6] ibid. p.45.

[7] https://www.outrightinternational.org/content/timeline-publicized-executions-alleged-sodomy-islamic-state-militias

[8] Raphael Lemkin, Axis Rule In Occupied Europe, Law Book Exchange Limited, Clark, 2005.

[9] Grau, Gunter (ed.), Hidden Holocaust?, Cassell, London, 1995.