Asylum and the Duty to Protect the Yazidis from Genocide

[Sareta Ashraph is a barrister specialised in international law, and is currently focused on ISIS’s crimes against the Yazidis. Sister Makrina Finlay OSB (DPhil Oxon, Modern History) assists Yazidi asylum seekers in Germany and Melinda Taylor is an international criminal law and human rights attorney, who provides voluntary assistance to asylum seekers through Advocates Abroad. The authors are currently exploring the possibility of filing a complaint before the ECHR in relation to Yazidi asylum seekers in Germany.]

August 15 marks the fourth anniversary of ISIS’s destruction of the Yazidis of Kocho village, the last intact Yazidi community in Sinjar, northern Iraq. Investigations uncovered ISIS’s commission of almost-unimaginable atrocities: of men being killed; of women and girls, some as young as nine, being sold into sexual slavery; and of boys being forced into ISIS training camps. These horrors were committed systematically against the Sinjari Yazidis, following ISIS’s initial attack on 3 August 2014.

The US Holocaust Memorial Museum, and the Commission of Inquiry on Syria determined that ISIS was committing genocide, as well as crimes against humanity and war crimes, in its multi-pronged attack on Yazidi women, children, and men. The genocide was recognised by Parliamentary Assembly of the Council of Europe, and the European Parliament, as well as by numerous States.

ISIS’s crimes against the Yazidis shocked the world. States such as Germany initially trumpeted their willingness to offer asylum to the Yazidis. In 2018, however, Yazidi asylum seekers are denied asylum on the ground that – since ISIS has, for now, lost its territorial grasp – the genocide is over and it is safe for them to return. Subsidiary protection is also withheld because, it is claimed, Yazidis can safely live in the Kurdish region of Iraq (KRI). This is despite the continuing threats to the Yazidi community, the ingrained prejudice that they face, as well as the fact that the KRI is not their home region. Most Sinjari Yazidis in the KRI live in tented IDP camps – camps which are currently at capacity, and do not provide sufficient schooling, psycho-social support, medical treatment or opportunities to earn a livelihood.

With thousands of Yazidi women and girls believed to be still held by ISIS, the genocide is ongoing. Yazidis who fled or have been rescued from ISIS live under constant threat to their security. For their group’s survival, Yazidi women, men and children need to live in an environment where they can safely practise their faith and their culture. To achieve this, States must offer meaningful protection of their right to exist as a people. Where that cannot be guaranteed in Iraq, States must interpret and apply the right to asylum in a manner which respects the right to exist as a Yazidi people, and their specific vulnerability as a group. 

The particular vulnerability of the Yazidi community in Iraq

Iraq, with its limited accountability and failure to confront the roots of past and present violence, will continue to afford opportunities for bloodshed, which in turn, continues to draw support from the local population. ISIS, now in a more fragmented but still lethal form, continues to mount violent attacks against the civilian population throughout Iraq, focussing in particular on vulnerable communities.

While there was much international relief at the pushing of ISIS from Mosul and northern Iraq, this relief is not shared by the indigenous Yazidi community. Undoubtedly ISIS – as an organisation with territorial control – does not currently exists as it once did but ISIS, as a people and an ideology, remains present just below the surface of Iraqi society. As before, the Yazidis, by reason of their faith, will continue to be a target.

In its attempt to destroy the Yazidis, ISIS drew from entrenched prejudices that still exist today. It is still common for Yazidis in Iraq to be referred to as “devil-worshippers”, as ISIS also did. These prejudices are rooted misconceptions of the Yazidi faith and the fact that Yazidis are not “People of the Book” and live outside the social and cultural acceptance that Muslim and Christian communities in Iraq and in the Middle East enjoy. At the level of protection of Yazidi rights, including the right to security of person, this has pernicious effects.

The Yazidis commonly speak of having suffered, over the centuries, 73 genocides and the historical record is littered with attempts at their annihilation. The events of August 2014 are not, to them, an isolated incident. Questions continue to be raised about the efficacy with which this marginalised, maligned community has been protected by the authorities. This has included the failure to protect them from ISIS in the first place, given the foreseeability of the attack on Sinjar after ISIS seized Mosul in June 2014. In the aftermath it remains unclear whether authorities – both in the KRI and in areas directly controlled by the central Government – are prepared to protect Yezidis from future attacks. 

The duty to prevent genocide and the responsibility to protect, viewed through the lens of asylum rights

Both the 1948 Genocide Convention and the 1951 Refugee Convention arose from the carnage wrought by Second World War, when minorities – unanchored from the protections of a nation-State – were targeted for their otherness, not just by the engineers of genocide, but also by states, such as the United States, that chose not to provide safe haven. This refusal to accept thousands of Jewish people attempting to flee the Holocaust became a moral stain, which gave rise to the impetus to craft binding legal frameworks to take actions to protect vulnerable minorities. The link between the right of asylum and the prevention of genocide was cemented by this historical failure to secure the protection of a people by extending the most basic form of welcome to them.

For the 1951 Refugee Convention, the notion of a well-founded fear of ‘persecution’ is the touchstone for protection. Article 1 of the Genocide Convention sets out the duty to “prevent and punish” genocide, but whereas the content of the duty to punish is further fleshed out, the duty to ‘prevent’ is left hanging as a vague promise. This notion of ‘prevention’ might have remained a dead letter if not for the fresh wave of shame following the inaction of the international community in the face of the Bosnian and Rwandan genocides. Yet again, the question was asked, what could we have been done, and what should we have done to prevent these horrors, and protect the victims?

The debates and resolutions that unfolded over the next decades centred around the notion of the ‘responsibility to protect’ (R2P). While the question as to the upper-limits of responsibility hovered on the controversial question of humanitarian intervention, less attention was given to the role of asylum protection as a means for preventing genocide, and protecting its victims. The notion that the existence of a genocide can trigger a duty to intervene or take positive steps has also created a perverse disincentive for States to call a genocide a genocide, as reflected by the fact that some States have yet to acknowledge the Yazidi genocide.

If States prove resistant to incorporating asylum protection within the Genocide Convention, its obligations must be incorporated into the interpretation and application of asylum law. Persecution and genocide exist on the same continuum, and there is no empirical bright line as to when the systemic persecution of people is likely to mutate into a genocide. It follows, therefore, that effective genocide prevention strategies must be harmonised with State obligations to protect against persecution. Concretely, the notion of ‘persecution’ must take into account the dynamics of collective harm that results from genocide, and the right to collective protection as a mechanism for pre-empting the extinction of the identity of the group, as such. 

Asylum policy and the particularities of the Yazidi ethno-religious group

At present, the political pendulum in many States has swung towards a more restrictive and individualistic approach to asylum law, which promotes the denial rather than acceptance of asylum seekers. This narrow approach, which focuses on the right to exist free from serious harm, whilst ignoring the bigger picture of the right of a vulnerable group to exist “as such”, fails to protect the right of the Yazidis to exist as a people, and not just as an atomistic fragment, divorced from the element as a whole.

For centuries, Yazidis had managed to secure their continuing identity and existence in what was often a hostile environment by marrying only from within the Yazidi community: Yazidi children must have two Yazidi parents and conversion to Yazidism is theologically impossible. They also secured their existence by having large families and living in regions that are geographically isolated. With the destruction of Sinjar, the death of thousands of young Yazidi men, the sexual violation of young Yazidi women, and the scattering of Yazidis across the KRI, Europe, and further abroad, all three of these survival strategies are under threat. When taking into account how to provide for the survival not only of Yazidi individuals but of the Yazidis as a people, it is essential for Yazidi asylum seekers to be considered as a group: assessing them simply as individuals risks sundering them from their people and their faith.

Durable solutions must ensure the integrity of the people at risk. Individuals need to be accepted and protected as a community, and the notion of a safe and sustainable return to the country of origin needs to take into consideration the extent to which the ‘return’ allows the ‘population’ to maintain their identity as a group. A forced return to an IDP camp in a different geographic area might be consistent with the ‘safe’ return of the individual, but not the sustainable return of the protected population, and the protection of a people ‘as such’.

The focus of asylum protection is on the risk of future persecution, as predicted on the basis of past conduct. Genocide – in either its active or nascent ideological form – seeks the annihilation of the group. Genocidal attacks against individual Yazidis are thus clear indicia of the risk of persecution faced by the group. The assessment of the future risk faced by individual Yazidis cannot, therefore, occur in a vacuum, but must take into consideration the experience of the group as a whole.

The designation of the Yazidi people as a ‘vulnerable group’

The corpus of asylum law has evolved over the last half-century to recognise that within the genus of persecuted minorities, there is a further need for specific minorities to be designated as a ‘vulnerable group’ in order to protect against intersectional layers of discrimination. This open-ended category of groups has been constructed on the basis of the heightened protections set out in other legal instruments, such as the Convention on the Rights of the Child, and the Convention against Torture, and includes children, and survivors of torture, trafficking and gender-based violence. The vulnerability designation requires States to exercise specific care to ensure that the asylum process is compatible with the groups’ protection needs, as concerns the manner in which the interviews are conducted, the provision of appropriate medical and psychological assistance, and the type of accommodation that is provided.

Within the context of the Council of Europe, the notion of ‘vulnerable groups’ also corresponds to a heightened degree of human rights protection, and has been held to encompass a ‘people’ as such. In Oršuš and others v. Croatia, the ECHR explained that although the case concerned the situation of fourteen individual applicants, it was necessary to take into account the “specific position of the Roma population” who “as a result of their history…have become a specific type of disadvantaged and vulnerable minority”.

This line of reasoning applies with even greater force to the Yazidi people. The genocide in which started just over four years ago marked the extreme intensification of a continuum of persecution, and historical vulnerability caused by their otherness. The Yazidis exist as a majority in no state. In the absence of political power, their survival, as a group, rests exclusively on their ability to enjoy effective protection as a minority group, which can exist as such. The synergies between the 1951 Refugee Convention and Genocide Convention, as set out above, also speak to the need to classify the Yazidi people as a ‘vulnerable group’ that requires a heightened degree of protection in order to ensure their right to continue to exist as a people.