Justice for the Yazidis in the Ishaq Case by the Stockholm District Court – Part II

[Mark Klamberg is professor of international law at Stockholm University and currently resides in Washington, DC, where he is affiliated with American University WCL and the Atlantic Council’s Strategic Litigation Project.

Alexandra Lily Kather provides expert legal advice to a range of accountability actors, including the Strategic Litigation Project at the Atlantic Council, on violations of international criminal law with a focus on gender-based and slavery crimes.]

Part I of this post can be found here.

The judgment confirms, clarifies and expands the existing international jurisprudence on slavery crimes, which have been the topic of the worldwide first Policy on Slavery Crimes formulated by any international judicial institution and published by the Office of the Prosecutor at the International Criminal Court in December 2024.

What is Slavery and How Was it Committed by IS?

Commendably, the district court recognizes that “slavery has been an international crime for almost 100 years” (p. 201) and confirms that the decisive factor for criminal liability is that “a person deprives someone else of their right to self-determination or at least substantially limits it” in a physical or psychological sense (p. 201). According to the judgment, the central element of slavery is fulfilled when a person is regarded as property or commodity while no evidence of ill-treatment (p. 204) or exploitation, one of three elements of the transnational crime of human trafficking, is required (p. 229). For example, the district court refers to the testimony of expert witness Patricia Sellers, who reported “that property rights were manifested by the Yazidis in captivity being sexually abused, having no practical means of escape, being physically and psychologically abused, living in poor sanitary conditions and often not being given enough food, and being forced to practice a religion different from their own” (p.95). The court also refers to Sellers’ explanation of how ownership over the Yazidis was exercised through a legal document, a certificate, (de jure) but there was also actual ownership, for example in the form of the women who were actually (de facto) responsible for the enslaved women and children when the men were out fighting resulting in the exercise of property rights of Yazidi women and children by women and men members of IS (p. 95)

The judgment recognized slavery as a “continuing crime” that starts when someone exercises property rights over a person and does not end until all the different powers of ownership have ceased, although there may be different conditions over time (p. 202). Equally, there is no time limit or minimum duration requirement for the crime of slavery to be committed. As such, it may be sufficient to keep someone enslaved for a few hours if this perpetuates enslavement (p. 202). For example, the District Court finds that the plaintiffs were already enslaved when they came to Ishaq, who received them with this knowledge and enslaved them (p. 202). 

Contained in the judgment are detailed and significant factual descriptions about IS’ commission of the slave trade – all acts involved in the capture, acquisition or disposal of a person to reduce that person to slavery (see comparatively OTP-ICC Policy on Slavery Crimes, para 38-43). These include the transferring, selling, buying, and receiving of Yazidi adults and children by IS members (pp. 23, 37, 42, 73).

The district court eloquently confirms that the slave trading and slavery system of IS imposed on the Yazidi population constitutes one of “the decisive elements in the implementation of the genocide and crimes against humanity to which ISIS subjected the Yazidi population”. (p. 200). The judgment specifies how the enslavement of Yazidi women and children was a prerequisite for other international crimes committed against them, including “sexual slavery, forced labor and forced conversion” and “separating children from their parents and transferring them from their community” (p. 200). The judgment underlines how the enslavement and detention of the complainants is a prerequisite for Lina Ishaq’s criminality (p. 200).

How Are Acts of the Slave Trade and Slavery Legally Characterised?

The judgment concludes that Ishaq committed the crimes against humanity of severe suffering through inhuman treatment (pp. 227-228), slavery (pp. 229-230), deprivation of liberty (pp. 229-230) and persecution on intersecting grounds of religion, culture, gender and age (p. 230) pursuant to Section 2 (1) paragraphs 2, 5, 7 and 8 of the International Crimes Act. 

Ishaq is also found to have committed the genocidal acts of severe suffering (p. 210-221) and forcible transfer of persons under the age of eighteen (pp. 221-224), inter alia through enslavement, pursuant to Section 1 (1) paragraphs 2 and 5 of the International Crimes Act. The judgment confirms the acts of slavery as described constitute indica of genocidal intent (p. 206) and underlying genocidal acts of severe suffering and forcible transfer:

The transfer of children took place either as part of the enslavement of the Yazidi women or independently, in some cases by separating them from their mothers and/or siblings. The forced transfer continued in captivity through both enslavement and forced conversion. (p. 222)

Whereas the district court holds that IS subjected the Yazidi women, men and children to sexual slavery, enslavement and slave trade, and put them into forced labor, in violation of customary international law (p. 96), the acts of the slave trade were legally characterized as indica of enslavement. This may result in the disadvantage to affected person given that the slave trade is an international crime distinct from slavery (See OTP-ICC Policy on Slavery Crimes, para. 33-35 and 38-43). One is left to wonder whether acts of the slave trade could have been legally characterized in their own right under Section 2 (1) paragraphs 5 of the International Crimes Act as “other state of coercion” recognized in contravention of customary international law. If it were the case in Sweden, as it is in for example Uganda (see the Kwoyelo case), that the Swedish courts could avail themselves the reference to customary international law (see Part I, the applicable law) the ample factual descriptions of acts of the slave trade, could have been characterized as the equally long-standing international crime of the slave trade as prohibited by the 1926 Slavery Convention and the 1956 Supplementary Slavery Convention.

Critically, the judgment contains important and novel findings with respect to slavery crimes committed against persons under 18 years of age. The district court establishes that children not born into enslavement but to enslaved mothers are recognized as enslaved children. This reflect prosecutorial strategy at the ICC where in the document containing the charges (para. 92) against Joseph Kony, children born to women enslaved by the LRA are also recognized as enslaved children Such children were not born into enslavement but simply with their mothers when they were slave traded and enslaved by IS (pp. 55 and 150). Relatedly, babies born, such as confidential victim-witness B, to enslaved mothers, such as confidential victim-witness A, are understood to be enslaved from birth (p. 201). The district court also finds that child soldiers can be considered enslaved children (p. 101, see comparatively OTP-ICC Policy on Slavery Crimes, para. 77).

The judgment holds that Ishaq committed persecution on intersection grounds of culture, religion, gender or other reasons prohibited by general international law, including age, by depriving the victims in the case of their fundamental rights to freedom of religion and to education. The district courts thereby expanded the persecutory grounds from Sarah O., who,  as a world first, was held liable for persecution on intersecting grounds of religion and gender by the Higher Regional Court of Düsseldorf for her involvement in crimes committed against the Yazidi. Regrettably, in the context of her involvement in persecution of the Yazidi, Ishaq is not found to have deprived the victims in the case of their fundamental right to be free from slavery and the slave trade as it was the case in Sarah O. (see comparatively OTP-ICC Policy on Slavery Crimes, para. 35, 43, 76). 

Conclusion

The second trial against Lina Ishaq contains many “firsts” for the Swedish criminal justice system. The judgment blooms through upholding and further developing international criminal jurisprudence created by international courts and tribunals as well as national courts, including others that operate under the principle of universal jurisdiction. Such qualitative outcomes are the harvest of seeds which have been planted across the international criminal justice ecosystem and include: the dedication of curious and skilful prosecutors that do not shy away from looking across jurisdiction or collaborating with investigative mechanisms, such as IIIM-Syria and UNITAD (p.35-36). The consideration of the work of the Syria COI, Yazda and the International Federation for Human Rights (FIDH) and other European criminal justice authorities successfully facilitated through Eurojust contributed to the thoughtful and detailed outcome (p.36). The careful selection of competent, interdisciplinary expert witnesses, including Sareta Ashraph, Patricia Viseur Sellers and Pari Ibrahim, among them also persons with lived experiences as experts in their own right, signals openness to (“outside” of Sweden) expertise which is necessary for the furtherance of accountability for core international crimes. A cause which is truly led by Yazidi survivors and allied advocates tirelessly documenting and speaking up for justice for attacks against the community since August 2014 and long before that.