Chair in Comparative and International Criminal law at Durham University
After capturing various major Iraqi cities and towns, attacking the Yazidis, and beginning a still-ongoing battle with the Iraqi Kurds, the Islamic State’s (IS) campaign of terror and barbarism shows no sign of slowing. Despite all the evidence of murder, cruelty and destruction, the international community has failed to use all the rhetorical and legal tools at its disposal.
On August 25, the office of the UN high commissioner for human rights, Navi Pillay, issued a statement about the atrocities committed by IS. A former judge of the International Criminal Tribunal for Rwanda and of the International Criminal Court (ICC), Pillay said:
Such cold-blooded, systematic and intentional killings of civilians, after singling them out for their religious affiliation may amount to war crimes and crimes against humanity.
A searing indictment and yet, the statement stopped short of using the g-word. It’s hard to see how the situation it describes meets the criteria for war crimes and crimes against humanity, but falls short of genocide. Reading Article 2 of the 1948 Genocide Convention should be an eye-opener:
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.
Let’s check just a few of the possible offence elements against the statement and the group’s known actions to date.
Targeting a religious, racial or national group, killing its members, causing them “serious bodily or mental harm”: all these criteria are clearly met. IS members are certainly acting intentionally; check out the group’s nightmarish video offerings if you harbor any doubts on that count.
Their members also act with discriminatory intent; religion, for instance, is obviously a discriminating factor, since they’re more likely to leave you alone (or at least not murder you) if you convert to the group’s perverted vision of Islam.
IS’s actions are also marked by the intent to destroy such a group, in whole or in part. The pattern has been the same wherever the group has taken control of an area: everyone is rounded up and asked to “convert or die,” and those who do not renounce their faith are summarily and publicly killed.
Evidently, it does not take much insight to recognize IS’s lethal campaign as genocide, or at least to see the genocidal nature of many of its acts.
In IS’s twisted logic, the group’s goal of a firmly established cross-border Islamic caliphate implies the killing of anyone in the territories it controls who does not convert. The group seems increasingly uninterested in the halfway house of dhimmi status for non-Muslims which could be extended to the so-called People of the Book (Christians and Jews, for example) under certain interpretations of Islamic law.
A large number of victims are as such not required to warrant the official label of genocide: they are evidence of patterns and therefore of specific intent, but the point of the 1948 Convention’s provisions is that genocide starts with victim number one.
Of course, despite these prima facie indicators, we must be mindful that we may not (yet) have collected reliable evidence of IS’s genocidal acts in a form that would stand up in a court of law to which the UN Security Council could refer the situation (most likely the ICC). This is a pressing task, of course, in order to avoid loss, deterioration or contamination of evidence.
Still, given all that has transpired, it is shocking to see the UN so reluctant to use the g-word at this advanced stage of the IS campaign.
The tentative language here is sadly familiar. Recall the recent genocide in Darfur. In that case, the report of the UN International Commission of Inquiry concluded:
The Government of the Sudan has not pursued a policy of genocide […] The conclusion that no genocidal policy has been pursued and implemented […] should not be taken in any way as detracting from the gravity of the crimes perpetrated in that region. International offences such as the crimes against humanity and war crimes that have been committed in Darfur may be no less serious and heinous than genocide.
A similar reluctance was later on display at the International Criminal Court, whose Pre-Trial Chamber initially declined to classify the acts as genocide because it applied an incorrect standard of proof. The Appeals Chamber reversed that decision. This finally resulted in a warrant of arrest being issued against the president of Sudan, Omar al-Bashir, which included counts of genocide.
Using the g-word is more than just a rhetorical gesture. It can trigger obligations to prevent and punish, and to urge the UN to take appropriate steps. Perhaps most importantly, its legal and political force puts governments under real pressure to respond.
And while the UN dithers, others are stepping up. The dire situation has led German Chancellor Angela Merkel, not given to rash statements, to label the acts of IS as genocide on German prime time TV. Aside from deploying the rhetorical power that comes with a German Chancellor’s use of that term, she has also broken with a long-standing post-war German tradition by planning deliveries of weapons to Kurdish forces.
As IS’s crimes become ever more heinous, that surely is a sign that other, more tentative observers should think again.
DISCLOSURE STATEMENT
Michael Bohlander is affiliated with the Kurdish Genocide Task Force, established in 2011 and linked with the High Representative of the Kurdistan Regional Government to the UK. He writes in a personal capacity.
By Michael Bohlander
