Addressing the Islamic State’s Genocide Against the Yezidi at the Belgian Parliament

[Zachary D. Kaufman is Associate Professor of Law and Political Science at the University of Houston Law Center. His full biography is available here.]

On June 15 and 16, the Belgian Parliament held a hearing about the Islamic State’s genocide against the Yezidis in Iraq and Syria. I testified, as did, among others, Nobel Peace Prize laureate Nadia Murad, a survivor of the genocide. (The written version of my opening oral testimony is here; it focuses on a resolution the Belgian Parliament is considering adopting, the aim of which, articulated in the resolution itself, is “recognizing and prosecuting the crimes of genocide committed against the Yezidis and to come to their aid.” The resolution is available here in its original French and Dutch.)

This post discusses the Islamic State’s genocide against the Yezidis, Belgium’s interest in that genocide, the Belgian Parliament’s resolution, transitional justice options for the genocide, and my recommendations to the parliament.

The Islamic State’s Genocide Against the Yezidis

Widespread international consensus holds that the Islamic State (also known as “IS,” the “Islamic State of Iraq and Syria” (“ISIS”), the “Islamic State of Iraq and the Levant” (“ISIL”), “Da’esh,” and “Daesh”) has committed genocide against the Yezidis (also sometimes spelled “Yazidis”). The Islamic State’s atrocity crimes against the Yezidis are summarized in the Belgian Parliament’s resolution and well-documented in numerous reports by:

• UN agencies (including the Independent International Commission of Inquiry on the Syrian Arab Republic and the UN Investigative Team to Promote Accountability for Crimes Committed by Da’esh/Islamic State in Iraq and the Levant),
• NGOs (including Human Rights Watch here, here, here, here, here, here, here, here, here, here, here, here, here, here, and here; Amnesty International here, here, and here; and the International Federation for Human Rights here), and
• academics (including me here and here).

Analyses have already been conducted by respected entities—including the U.S. Holocaust Memorial Museum and the U.S. Commission on International Religious Freedom in 2015 and, the following year, the U.S. House of Representatives, the U.S. Secretary of State, the European Parliament, and the Independent International Commission of Inquiry on the Syrian Arab Republic—determining that these atrocity crimes constitute genocide.

Belgium’s Interest in the Genocide Against the Yezidis

According to the European Commission’s Radicalisation Awareness Network, as of 2017, “[m]ore than 42,000 foreign terrorist fighters [had] travelled to join [the Islamic State] from over 120 countries,” with more than 5,000 departing from Europe. Of the Europe-originated fighters, approximately 520 came from Belgium. According to EUROPOL, Belgium is among the top four major EU source countries for these terrorist fighters, and EUROPOL estimates that between 20% and 30% have now returned to Belgium.

The Belgian Parliament’s Resolution

The Belgian Parliament’s resolution “recognizes and condemns the crime of genocide perpetrated by the Islamic State in Iraq and Syria against the Yezidis beginning in 2014.” The resolution then requests of the Belgian government the following five measures:

1. “to use all avenues available under national and international law to ensure that the crime of genocide perpetrated against the Yezidis in Iraq and Syria by the Islamic State does not go unpunished”;
2. “to encourage and support the efforts of the Belgian courts to identify and prosecute any Belgian perpetrators of crimes against the Yezidi community”;
3. “to contribute to the return to the towns and villages from whence they came of those Yezidis who wish to do so, particularly by calling for the implementation of the agreement between the government of Iraqi Kurdistan and the central government of Baghdad and by proposing an international supervision of this agreement”;
4. “to contribute to the reconstruction of the devastated towns and villages”; and
5. “to bring specific humanitarian aid to those groups which have suffered acts of sexual violence, slavery and other inhumane and degrading treatments.”

Despite widespread international consensus that the Islamic State has committed genocide against the Yezidis, accountability for these atrocity crimes has been elusive, both internationally and domestically.

International Prosecution

International prosecution could come in one of four main forms. Either the permanent International Criminal Court (“ICC”), an ad hoc treaty-based international criminal tribunal, an ad hoc UN international criminal tribunal, or an ad hoc hybrid tribunal could prosecute.

First, neither Iraq nor Syria is a party to the Rome Statute of the ICC (the treaty underlying the court), so the ICC doesn’t have territorial jurisdiction over the Yezidi genocide on its own. Attempts to refer the matter to the ICC from the UN Security Council (“UNSC”)—which, according to the Rome Statute’s article 13, would confer jurisdiction—have failed. To date, the UNSC has voted on only one related draft resolution (and only then regarding Syria), which China and Russia vetoed.

Second, a coalition of states could establish via treaty an ad hoc court that has jurisdiction over the Yezidi genocide. Likeminded states have previously united via international agreements to create the ad hoc Nuremberg Tribunal, the ad hoc Tokyo Tribunal, and the permanent ICC itself. In the case of the Yezidi genocide, such an assembly of states could be broad, including many or all of the states that fought the Islamic State, or narrow, such as a group of states in the Middle East or the European Union.

Third, despite calls (see here, here, here, and here) for the UN to establish an ad hoc international criminal tribunal for the genocide against the Yezidis (as was done for atrocity crimes in the Former Yugoslavia and Rwanda), no serious attempts have been made to do so in this case.

Finally, despite appeals (see here and here) for the creation of an ad hoc hybrid tribunal—a tribunal that would combine domestic and international laws and staff—for the genocide against the Yezidis, no such court has been founded (as was arranged for atrocity crimes in Sierra Leone and Cambodia).

Domestic Prosecution

Given the current lack of political will for any international prosecution of the Islamic State, domestic prosecution is the only viable option for now. Such trials could be based either on invoking the doctrine of universal jurisdiction or a more traditional jurisdictional connection to suspected perpetrators of the Yezidi genocide.

Under universal jurisdiction, a prosecuting entity controversially claims that, because some crimes are so heinous and are thus an enemy of all mankind, suspected perpetrators of those offenses can be prosecuted anytime, anywhere in the world. Authorized by the 1993 Act Concerning Grave Breaches of International Humanitarian Law, Belgium asserted universal jurisdiction for a decade over individuals suspected of perpetrating atrocity crimes even if the accused party was not in Belgian territory and the case did not include any other link to Belgium. Under this law, Belgium tried and convicted four suspected perpetrators of the Genocide Against the Tutsi in Rwanda, who were in Belgium when accused, in what is known as the Butare Four case. This trial was historic in that it was, according to the New York Times, “the first time a jury of ordinary citizens was asked to sit in judgment of war crimes [that had occurred] in another nation.” Unless Belgium reasserted universal jurisdiction, Belgian courts could not try suspected perpetrators of the Yezidi genocide under this doctrine.

Today, however, Belgian courts could prosecute certain genocide suspects through more traditional jurisdictional ties involving a case’s link to Belgium. For example, if either Belgian citizens or foreigners with their principal residence in Belgium participated in the Yezidi genocide, then Belgian courts could prosecute them under the current Belgian Penal Code. Belgium abandoned universal jurisdiction in 2003 by repealing the 1993 Act Concerning Grave Breaches of International Humanitarian Law. Since then, the Belgian Penal Code, in Article 136 bis, has included a definition of genocide that applies to Belgians even if the genocide they are accused of committing occurred elsewhere. That definition reproduces verbatim the definitions in Article II of the Convention on the Prevention and Punishment of the Crime of Genocide and Article 6 of the Rome Statute of the ICC. Analyses finding that the Islamic State has perpetrated genocide against the Yezidis under either of those two international agreements would thus presumably conclude the same under the Belgian Penal Code.

My Recommendations to the Belgian Parliament

As the Belgian Parliament invited me to focus on the international and criminal law aspects of its resolution, my recommendations concentrated on the resolution’s first two measures. Regarding international prosecution of the Islamic State, I recommended that Belgium press the UNSC either to refer the Yezidi genocide to the ICC or to create an ad hoc international criminal tribunal with jurisdiction. As part of the former initiative, I argued, Belgium should lobby China and Russia not to veto such a resolution again. Alternatively, I proposed, Belgium could advocate for the establishment of either an ad hoc treaty-based tribunal or an ad hoc hybrid tribunal that would combine laws and staff from, on the one hand, the international community, and, on the other hand, Iraq and/or Syria. Syria’s cooperation, I acknowledged, would be more realistic after the Assad regime ends.

Regarding domestic prosecution of the Islamic State, I recommended that Belgium thoroughly investigate its citizens and residents suspected of joining the Islamic State. Alleged foreign terrorist fighters from Belgium, I suggested, should then be prosecuted for genocide and, where convicted, punished under the Belgian Penal Code. Where Belgians suspected of participating in the Yezidi genocide are still abroad, I noted, Belgium could request their extradition back to Belgium so that its courts can prosecute.

In response to a question from parliamentarians about what the United States is doing to address the genocide, I cited the Iraq and Syria Genocide Relief and Accountability Act that the U.S. government enacted in 2018. I recommended that the Belgian government consider using as a model that law’s authorization of the U.S. Secretary of State and Administrator of the U.S. Agency for International Development

to provide assistance, including financial and technical assistance, . . . to support the efforts of entities, including nongovernmental organizations with expertise in international criminal investigations and law, to address genocide, crimes against humanity, or war crimes, and their constituent crimes by ISIS . . . by—

• conducting criminal investigations;
• developing indigenous investigative and judicial skills, including by partnering, directly mentoring, and providing necessary equipment and infrastructure to effectively adjudicating cases consistent with due process and respect for the rule of law; and
• collecting and preserving evidence and the chain of evidence, including for use in prosecutions in domestic courts, hybrid courts, and internationalized domestic courts . . .