Conflict-Related Sexual Violence Symposium: Innovations, Lessons Learned, and Good Practices From CIJA’s Investigation Into the Slave Trade

[Stephanie Barbour is the Senior Sexual and Gender-based Violence Adviser at the Commission for International Justice & Accountability. This is a post in our joint blog symposium building on the discussion focusing on accountability for conflict-related sexual violence crimes associated with slave trade, slavery and trafficking, held as part of the Digital Dialogue Series, hosted regularly by the UN Team of Experts on the Rule of Law and Sexual Violence in Conflict.]

The innumerable crimes in the conflicts in Syria and Iraq are among the most documented in history, yet justice is elusive for many victims – especially victims of sexual violence. There are many creative efforts underway to overcome the accountability gap, among them those of the private criminal investigative body for which I work, the Commission for International Justice & Accountability. In an article in the special edition of the Journal of International Criminal Justice marking the tenth anniversary of the UN Team of Experts on Rule of Law and Sexual Violence in Conflict, I share about the innovations and lessons learned in the course of CIJA’s largely, to date, out-of-view investigations of sexual and gender-based violence perpetrated by the Syrian Regime and Islamic State (IS).  

In 2020, an AP exclusive revealed the results of a multi-year CIJA investigation into the IS slave trade in women and children. The confidential 450+ page casefile details evidence showing how IS operated a highly-organised, well-regulated slave trade in which thousands of captured women and children – the majority of them Yazidis – were bought, sold, given and traded among its members from August 2014 until at least October 2017. The casefile describes the entire modus operandi of IS enslavement practices and identifies the orchestrators of the slave trade – including the reputed new IS Caliph – as well as dozens of slave traders and hundreds of slave owners.

Investigators and documenters of sexual violence working in the context of IS crimes in Syria and Iraq will be deeply familiar with the many challenges this work presents. Some challenges are common to all situations of conflict-related crimes, such as the difficult operating environment resulting from the conflict itself and the trauma and vulnerability many survivors experience. Other challenges are unique. For example, when it came to investigating the IS slave trade, one critical issue was that it was and remains an ongoing crime with thousands of women and children still missing. This meant that CIJA’s investigations were concurrent with rescue operations, which at all times took precedence over evidence-gathering. The openness of the Yazidi community in particular to documenting the genocide against them is also a double-edged sword; repeated statement takings from victims and lack of coordination among actors risks tainting testimony, re-traumatising survivors, and triggering justice fatigue relatively early in the justice-seeking process.

The greatest challenge, however, remains one that is shared in nearly all international criminal and humanitarian law (ICHL) focussed investigations, namely the inability of criminal investigators to access and collect the type of evidence required for criminal-standard investigations. This was the very challenge that CIJA was designed to address by relying primarily on national investigators operating inside the affected territory to gather documents, interview witnesses, and collect other materials. Consequently, building the capacity of national investigators – Syrian and Iraqi men and women – to gather evidence according to standards that meet or exceed what may be required in any jurisdiction was the first step towards conducting this investigation (and others). Learning one of the lessons of the ad hoc criminal tribunals, the CIJA model embeds dedicated capacity to investigate sexual and gender-based violence (SGBV) in the structure and design of every field investigation.

In turn, because ethical and principled approaches to working with survivors is the sine qua non, national CIJA investigators undergo a long-term training and mentoring programme in effective and ethical investigation of sexual violence. An underlying focus of the initial capacity-building programme was reconstructing harmful – but perhaps unconscious – attitudes about SGBV that create barriers to effective investigation, whilst simultaneously gradually inculcating the required skillset. This in turn required a sustained approach, relying on a core training team to deliver successive trainings over time with in-house mentoring of the work in between. While seldom has so much time – years – and effort been put into training a cadre of SGBV investigators, the beneficial results are seen in the casefile mentioned above, among many others prepared by CIJA to date.

In addition, CIJA employs several key strategies to build strong SGBV casefiles. Chief among them is applying a large-scale situational investigation model similar to that employed in the ad hoc criminal tribunals. For example, the initial IS crimes investigation plan set out broad subject-matter, geographic, and temporal parameters (IS crimes in northern Iraq and Syria from mid-2014 onward). This approach allowed a wide focus through which all available evidence could be probed. This differs from the model often used by NGOs pursuing strategic litigation or preparing Article 15 communications to the ICC Office of the Prosecutor focusing on a cluster of victims or incidents.

Within CIJA’s situational investigative model, core emphasis is placed on gathering evidence of the authority structure that enabled the perpetration of crimes. This approach has enabled CIJA to build a legal brief demonstrating not only the highly orchestrated nature of the IS slave trade, but the involvement of many parts of its state-like apparatus in the crimes. While the initial IS slave markets made international headlines, CIJA investigations uncovered documents and obtained witness statements which confirmed the eventual role of IS-run Sharia courts in presiding over the transfer in ownership of sabaya (among other aspects revealed by the investigation).In many instances, IS judges imposed marriage contracts between female captives and IS members, providing a veneer of marriage to something very much still resembling the condition of slavery.

CIJA also looked to successful sexual slavery prosecutions in other contexts, which were built on multiple layers of corroborating evidence.  The investigation placed a strong emphasis on gathering original IS documents that demonstrate not only the functioning of the slave trade in practice (such as marriage contracts) but also the policies that authorised, justified, and controlled it. To avoid over-reliance on victim testimony and the danger of re-traumatizing survivors, a strict and complex set of witness selection criteria was employed to ensure that witnesses were interviewed based on their ability to provide critical crime-base, linkage, and contextual information. Other types of evidence, such as pattern and prevalence studies and impact evidence (often provided by experts), was sought. Overall, the goal was to gather facts from a variety of sources that could help contextualise the enslavement practices within the wider attack on Yazidis and other victims of slavery and to link them to the IS leadership itself.

As the role of CIJA is not to replace the efforts of national investigators and prosecutors, but rather to secure vulnerable evidence and make it available to them, we have built working relationships with dozens of law enforcements agencies in fourteen states, as well as international bodies such as the IIIM, UNITAD, OPCW, Eurojust, and partner NGOs pursuing universal jurisdiction complaints. CIJA has now shared the IS slave trade casefile with a number of these partners, and in 2019-20 alone, the organisation answered nearly two-dozen Requests for Assistance related to the IS slave trade, i.e. over twenty per cent of some eighty-seven IS-related requests for assistance received.

In the second part of this two-part blog post, Stephanie Barbour will consider ‘the importance of a label’ for gender-based crimes documented in Syria and Iraq and the currents prospects for justice in both contexts.