Law: Developing an evidentiary framework for genocidal intent to enable the Parliament of the United Kingdom and the United Nations Human Rights Council to recognise genocide against the Yazidis

Dr Aldo Zammit Borda, Dr Alexander R J Murray

ARU research on atrocities allegedly committed by the Islamic State of Iraq and the Levant (ISIL) against the Yazidis has helped institutions to recognise genocide, and therefore place legal obligations on states to punish genocide.

Dr Zammit Borda and Dr Murray used their research to develop a legal and theoretical framework to prove specific genocidal intent among perpetrators. This has made it more straightforward for institutions to determine whether genocide has been committed, and therefore compel states to act to prevent or punish genocide.

Research summary

In order to prosecute the crime of genocide, it is necessary to prove a specific intent to destroy a protected group. This is very difficult to do, due to a high evidence threshold. A further complication is that ‘genocide’ is a highly politicised label, which is frequently used and abused by groups for political ends.

From 3 August 2014, ISIL committed atrocities against the Yazidis, a religious minority living in northern Iraq. The following year, the Honourable Vian Dakhil, a Yazidi Member of the Iraqi House of Representatives, and chairperson of the Yazidi NGO Sinjar Foundation for Human Development, requested research from Dr Zammit Borda and Dr Murray on whether these events could be legally classified as genocide.

This research would not only determine whether ISIL might be prosecuted for genocide, but would also address a significant gap in existing legal scholarship concerning what may be considered evidence of genocidal intent.

Darkil, Dr Zammit Borda, and Dr Murray analysed genocide indicators, such as ISIL’s specific ideological justifications, and circumstantial evidence, such as statements made by perpetrators before attacking their victims, in primary and secondary sources including ISIL’s own publications (Dabiq) and original data gathered by the Sinjar Foundation for Human Development.

As a result, they were able to develop an extensive and systematic evidentiary framework to assess for genocidal intent, and justify classifying ISIL’s actions against the Yazidis as genocide.

The researchers also conducted a legal analysis of the status of ISIL fighters in the jurisprudence of British courts. They assessed different types of attacks in Iraq and Syria and found that, although a complex patchwork of international and domestic laws may be applicable to the attacks, in specific cases, ISIL fighters may be prosecuted for the crime of genocide.

By using the researchers’ framework, and the potential avenues they have identified for prosecuting genocide perpetrators, institutions may recognise when genocide has been committed, and therefore place specific duties on states to act to prevent or punish genocide, delivering justice.

Yazidi mother and children

Summary of the impact

  • The framework was used to advocate for a change in policy by the UK Parliament concerning the recognition of genocide against the Yazidis
  • Giving evidence before the UN Human Rights Council, the Honourable Vian Dakhil, a Yazidi Member of the Iraqi House of Representatives, used the framework to ground her testimony on genocidal intent
  • The research has been used to advocate for recognition of genocide, translated to allow broader use and development of the legal framework, and influenced further studies

Impact

In official meetings UK MPs Baroness Kennedy of The Shaws QC and Baroness Nicholson of Winterbourne, Dakhil found the framework to be a vital tool in advocating for a change in policy by the UK Parliament concerning the recognition of genocide against the Yazidis.

Baroness Kennedy’s meetings and discussions with Dakhil led her to support and vote in favour of a proposal to insert a new clause on ‘conditions for grant of asylum: cases of genocide’ in the UK House of Lords on 21 March 2016. At the debate, Baroness Kennedy said:

“The testimonies we have been hearing are absolutely barbaric… we are talking about genocide. We are talking about the destruction of a people and their ability to procreate…

“Mrs Vian describes the mass graves that she has visited, the beheadings of children and the crucifixions… and she cannot understand why western Governments are not being more vociferous about these horrors and naming them as genocidal atrocities…

“If noble Lords were to listen to the account given by this Yazidi Member of the Iraqi Parliament — the only one — no one in this House could feel anything other than a sense of shame, horror and moral repugnance. We have to say, ‘It’s not good enough—we have to act now’.”

As a direct result of the debate, and with reference to Baroness Kennedy’s speech, the House of Commons unanimously adopted a Motion that expressly recognised the crime of genocide committed by ISIL against the Yazidis (and other religious minorities) on 20 April 2016.

This recognition of genocide by the UK Parliament is very significant because it brings legal obligations to prevent and punish perpetrators. It is estimated that ISIL actions have resulted in 500,000 Yazidi refugees, the killing of 5,000 men, and the kidnap and torture of 7,000 women.

Following the passage of this Motion, in 2017 the UK Government led international efforts to establish the UN Investigative Team to Promote Accountability for Crimes Committed by ISIL (UNITAD) and has committed £23.5 million to support the Yazidis and other victims of ISIL to return home safely.

On 21 June 2016, Dakhil was invited, as a key expert, to provide evidence before the UN Human Rights Council on the human rights situation in Iraq and Syria. She used the framework to ground her testimony on genocidal intent.

The Council used her evidence as a key expert witness to adopt a resolution on the human rights situation in Syria, expressing, among other things, its deepest concern about the crimes committed by ISIL against the Yazidis.

For the Yazidis, the recognition of their cause by a United Nations body is very significant, as it represents official acknowledgment by the international community of the harms they suffered.

Dakhil has also used the findings of this research to advocate for recognition of genocide at the Oslo Freedom Forum (May 2017) and the United States Institute of Peace (August 2017), and in interviews with the Egyptian channel Extra News (June 2017) and the American outlets National Review (July 2017), Voice of America (August 2017) which has a global audience of over 275 million, and BBC World News (February 2020).

In 2019, the Sinjar Foundation for Human Development commissioned the translation of this research into Arabic and Kurdish in order to make it easier for NGOs and students in the region to make use of and further develop the framework. The translations were made available in all Al-Mada Foundation libraries in Iraq and Lebanon, and in other libraries, including those of the Al-Bayan University and Cihan University-Erbil.

The 2019 Laureate of Aurora Prize for Awakening Humanity, and Founder and Head of the Air Bridge Iraq NGO, Mirza Ali, adopted the research’s framework to evidence genocidal intent in his own study of the atrocities committed against the Yazidis. The framework has also been cited by NGO studies on modern slavery.

The research has also been used in art exhibitions on the Yazidis to inform and impact public discourse on the legal challenges they face. It has additionally influenced specialised scientific studies of ISIL’s crimes against the Yazidis.

United Nations Sustainable Development Goals

We have mapped our REF 2021 impact case studies against the United Nations' Sustainable Development Goals (SDGs).

The 17 SDGs, adopted by all UN Member States in 2015, are an urgent call for action. They recognise that ending poverty and other deprivations must go hand-in-hand with strategies that improve health and education, reduce inequality, and spur economic growth – all while tackling climate change and working to preserve our oceans and forests.

This case study is mapped to SDG 16: Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels, target 16.1.

Addenda

Due to ongoing conflict in the region and other legal and political hurdles, it had not been possible to prosecute ISIL fighters for genocide by the time this case study was submitted for the REF in July 2020.

However, in May 2021, Karim Asad Ahmad Khan, Special Adviser and Head of UNITAD, informed the UN Security Council that the Team had 'established clear and convincing evidence that genocide was committed by ISIL against the Yazidi' [https://www.un.org/press/en/2021/sc14514.doc.htm].

Furthermore, In November 2021, a German court sentenced an Iraqi ISIL fighter to life in prison for the crime of genocide – the first verdict worldwide to use the label.

See also

Read the full REF 2021 impact case study for UoA 18: Developing an Evidentiary Framework for Genocidal Intent to Enable the Parliament of the United Kingdom and the United Nations Human Rights Council to Recognise Genocide Against the Yazidis

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