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Iraq/ICC: Investigation of ISIL Crimes Urged by Religious Minority

(Sept. 30, 2015) On September 24, 2015, members of the Yazidi minority religious community in Iraq met with Fatou Bensouda, Chief Prosecutor of the International Criminal Court (ICC). They filed a report with details of attacks on the community carried out by the Islamic State of Iraq and the Levant (ISIL) since August 2014. The claim is that the actions, including killings, rapes, and enslavement, amount to religious genocide. (Benjamin Dürr, Yazidis Demand Genocide Investigations at the ICC, ICC OBSERVER (Sept. 28, 2015); Ashley Hogan, Iraq Yazidi Minority Urge ICC Genocide Investigation, PAPER CHASE (Sept. 26, 2015); Isabel Coles, Former ICC Chief Prosecutor Pushes for Yazidi Genocide Case, REUTERS (Sept. 2, 2015).)

Technically, the report was considered to be a “Communication. ” (Dürr, supra.) The ICC states that a Communication from any individual or group can be about “crimes that have been allegedly committed. The prosecutor then analyses whether there is reason to look deeper into the situation.” (Glossary: Communication, ICC OBSERVER (last visited Sept. 28, 2015).) The ICCʼs procedures are outlined in the Rome Statute. (Rome Statute of the International Criminal Court, Doc. A/CONF.183/9 (in force from July 1, 2002), ICC website.)

While Iraq is not a member of the ICC, making direct prosecution of Iraqis for their criminal attacks difficult, it is estimated that 5,000-7,000 members of ISIL are citizens of member states and thus could be tried by the Court. The Communication mentioned in particular Tarkhan Tayumurazovich Batirashvili, who goes also by the name Abu Omar al-Shishani in his role as an ISIL commander; Batirashvili is a citizen of Georgia, a country that is a member of the ICC. (Dürr, supra.) However, to date the ICC has never brought a case based on jurisdiction over individuals. (Coles, supra.)

The Communication noted that the United Nations and human rights groups have suggested that the attacks on the Yazidi may amount to genocide. (Hogan, supra.) Former ICC prosecutor Luis Moreno-Ocampo has said, “[i]t’s a very clear case. It’s an ongoing genocide because there are still people in captivity. … It’s up to us to provide information that allows the ICC to understand, yes, we have jurisdiction in this case in this way.” (Coles, supra.)

The Yazidi, whose religion reveres both the Bible and the Koran and includes elements of several different faiths, live in small communities in Syria and Turkey, as well as in northwestern Iraq. They have long been persecuted by majority populations in those places, who have called them “devil worshippers.” (Who, What, Why: Who Are the Yazidis?, BBC NEWS (Aug. 8, 2014).)