The first article of this blog series, “ISIS ‘Down’ but ‘Not Out’ in Iraq,” addressed the scope and effects of military operations in the fight against terrorism. This article expands on the issue of sustainability in combating terrorism. It investigates the measures beyond military action necessary to stabilize a region plagued by terrorism, detailing the challenges encountered in attempts to bring justice to the victims of the Yazidi genocide.  

Germany made headlines in December with a landmark ruling, sentencing Iraqi ISIS member Taha Al-Jumailly to life in prison. He was found guilty of genocide; crimes against humanity resulting in death, war crimes, aiding and abetting war crimes; and bodily harm resulting in death. Al-Jumailly is not a German citizen but was extradited to Germany on the basis on an international arrest warrant. 

Al-Jumailly had been part of the ISIS-driven genocide against the Yazidi minority between 2014 and 2015 that resulted in the death of more than 5,000 Yazidis and the displacement of more than 400,000. Al-Jumailly purchased a Yazidi woman and her five-year-old daughter as slaves in 2015. As punishment, he handcuffed the girl to a window unprotected from the scorching sun and allowed her to die of thirst while her mother watched helplessly. The verdict was the first instance of a member of ISIS being prosecuted for genocide, and the verdict was hailed as “a win for survivors of genocide, survivors of sexual violence, & the Yazidi community.” 

While their home region, Sinjar, was liberated in 2017, victims’ advocates report that thousands of women and children are still missing and could still be held captive by ISIS, survivors are still displaced, and rarely are the perpetrators of these horrible crimes brought to justice.  

A functioning system of transitional justice would be able to work through events like the Yazidi genocide, document them and ideally prosecute perpetrators. This would allow victims to find some closure, stabilize civil relations, and increase trust in the capability of government structures to address the needs of its citizens. For this to work, however, political will, reliable sources of evidence, and a functioning judiciary system are the three indispensable elements. All three, however, remain problematic in Iraq, similar to other conflict regions.

The Iraqi government has only timidly begun to address the Yazidi genocide and its aftermath. One of the most noteworthy achievements has been the passage on March 2, 2021 of the Law on Yazidi Female Survivors, which established a mechanism providing financial support and other forms of relief to minority groups that have suffered from genocide. Specifically, the law focuses on women who have suffered from sexualized violence. The law also covers the plight of minority groups other than the Yazidi. However, its implementation has been halting and in practical terms, the law has not yet been applied beyond the Yazidi community. As many as 2,600 women and girls are still missing even though ISIS has long been declared defeated. Furthermore, many bodies found in mass graves since the demise of the ISIS’s so-called caliphate remain unidentified. Some who were identified, a mere 41 victims, were ceremoniously buried last year. Thus, there seems to be the political will to acknowledge the outstanding issues through statements and ceremonies, but the Iraqi government seems neither capable nor willing to address the deeper problems more effectively. 

The difficult task of retrieving and assessing battlefield evidence is mainly undertaken by two international organizations, the United Nations (U.N.) and the International Institute for Justice and the Rule of Law (IIJ). Both have amassed large quantities of data, including testimonies, forensic evidence from mass graves, and digital data extracted from ISIS’s computer hard drives. These have been used by the U.N. to officially declare the events in Sinjar a genocide. They have been crucial to facilitate the prosecution of ISIS members. Furthermore, the evidence has been used to identify bodies and return them to their families. 

However, political problems have hindered these processes. The Iraqi government has been unable to pass planned legislation to facilitate better cooperation between Iraqi officials and the Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL (UNITAD). The multiplicity of stakeholders combined with the current political difficulties of the Iraqi government aggravate an already difficult situation. Of course, conflict zones present inherent governance challenges. Reliable battlefield evidence is often scarce and properly collecting and assessing battlefield evidence is challenging. The U.N.’s 2020 Memorandum on Battlefield Evidence seeks to help stakeholders in the process and streamline the collection of evidence.  

The Iraqi judicial system has been criticized for its practices concerning ISIS members. Reportedly, courts have held 10-minute trials resulting in death sentences on terrorism charges without addressing the severe crimes of sexual slavery or rape. Often, no compelling evidence or witness reports are required for death sentences to be rendered. For example, it is not unheard of that cooks and other logistical workers forced to work for ISIS, women forced to marry ISIS fighters, and children born of rape are prosecuted alongside the actual perpetrators. Moreover, handing down severe sentences to ISIS members through hastened trials fails to capture the full range of horrific crimes committed during the conflict, including gender-based crimes like sexual slavery. Consequently, many survivors of horrific abuse lose their chance at justice and potential reparations. 

For effective cooperation to become more feasible and transitional justice to bear fruit and allow the Yazidi survivors to find peace, several improvements must be made. The Iraqi government must turn statements into action, allowing Yazidi survivors to return safely and rebuild their homes. For this to happen, Yazidis need financial, medical, logistical, and psychological support services. Furthermore, to reach closure, ISIS perpetrators must be prosecuted in a timely but deliberate fashion. The Iraqi judiciary should push forward with necessary procedural reforms, potentially adopting U.N. best practices. Doing so would also facilitate better information exchanges between stakeholders, including Iraqi civil society. A reformed judiciary approach will require quality evidence, which the U.N. and the IIJ can provide. In turn, Iraq can offer more of its findings to the world. Lastly, more countries should follow the German example and hold ISIS members accountable for the crimes committed in Iraq and elsewhere, adopting the view that crimes against humanity and genocide fall under universal jurisdiction and can be prosecuted everywhere. This would also potentially deter future perpetrators.