Master Thesis in International Security and Law
Sexual Violence as a Constituent Act of Genocide – the Islamic State and the Case of the Yazidis
Written by Kairi Rand
Supervised by Dr. Martin Mennecke, Department of Law
Total no. of characters: 154 909
64.55 standard pages
“I hereby solemnly declare th?t I have personally and independently prepared this p?per. All quotations in the text have been m?rked as such, and the p?per or considerable parts of it h?ve not previously been subject to ?ny examination or assessment.”
Aalborg, 3rd of September 2018Kairi Rand
AbstractIn August 2014, the Islamic State of Iraq and Al-Sham (ISIS) abducted more than 5000 women and girls of the Yazidi origin and forced them into sexual slavery. Although to date, the majority of the captives have been able to return to freedom, 1636 females remain enslaved in the ISIS-controlled territories in Iraq and Syria, to be subjected to the daily assaults and ill-treatment.
This thesis s?ts out to investigate the underlying reasons behind the use of the sexual violence, against these women and girls. Five different premises are tested, which are built upon religious doctrines; attracting and bonding; humiliation, and intimidation; generation of profit and slow genocide.
In addition, the author will also touch upon the difficulties which are attached to determining the legal status of the Islamic State (IS), and the possibilities of prosecuting the organization members for the crimes of genocidal sexual violence.
The analysis revealed that the reasons, why ISIS uses sexual violence against the Yazidis, are multi-layered and interconnected. Religious interpretations of the Sharia law are used to justify the slavery of the women in order to humiliate their communities, gain profit, attract and bond the fighters and facilitate slow genocide.
It was also concluded, that due to the complex nature of ISIS is a difficult task to find a suitable legal path to prosecute its members for the genocidal sexual violence.
Keywords: Yazidis, ISIS, sexual violence, genocide, prosecution
At the end of this l?ng and arduous journey, I wish to express my profound gratitude to all of those people whose comments, questions, criticism, and encouragement, personal and academic, have left a mark on this work.
First and foremost, I want to thank my supervisor, Professor Martin Mennecke, for his invaluable help, advice, and guid?nce throughout the research and writing process.
I am also deeply grateful to Shireen Alawsi from Yazda´s Genocide Documentation Centre and Sareta Ashraph from UN CoI on Syria for sharing their insight and materials with me.
I am highly indebted to Dr. Ezden Khudur and his wife Nadira for bringing me together with 9 amazing and incredibly brave Yazidi women, who became a part of this research by sharing their experience as victims of the sexual violence perpetrated by ISIS.
Yasmin, Shilan, Leila, Lamiya, Dalal, Noreen, Farida, Heva, and Sara – this experience would not have been the same without you! I am extremely grateful that y?u allowed me into your life and trusted me with your stories. I hope that I have done them justice.
My heartfelt appreciation goes to out my mother Marge for her unfailing love, support, and understanding during my pursuit of my master´s degree. I salute you for all of the sacrifices you made to help me to shape my future.
Finally, I owe ? very speci?l th?nks to my boyfriend Joachim who always stayed by my side to motivate me even in my darkest hours. Love you
“You gain strength, courage and confidence by every experience in which you really stop to look fear in the face. You are able to say to yourself, ‘I have lived through this horror. I can take the next thing that comes along.’ You must do the thing you think you cannot do.”
Glossary of Abbreviationsal-NusraJabhat al-Nusra li Ahl asSham
AQIal-Qaeda in Iraq
CharterCharter of the United Nations
Genocide ConventionConvention of the Prevention and Punishment
of the Crime of Genocide
ICLThe international criminal law
IHLThe international humanitarian law
ISThe Islamic State
ICC, CourtThe International Criminal Court
ICC EoCThe ICC Elements of Crimes
ICTRThe International Criminal Tribunal for Rwanda
ICTYInternational Criminal Tribunal f?r the former Yugoslavia
ISIThe Islamic State of Iraq
ISISThe Islamic State of Iraq and Al-Sham
Jama’atJama’at al-Tawhid wal-Jihad
OfficeThe Office of the Prosecutor
SCThe United Nations Security Council
StatuteThe Rome Statute
SyriaThe Syrian Arab Republic
UNThe United Nations
UN CoI on SyriaThe Independent International Commission of Inquiry on the Syrian Arab Republic
UN GAThe UN General Assembly
Glossary of the Arabic TermsAbuFather
Ahl al-harbThose who are in the state of war with Muslims.
Al-Sabi A woman from among ahl al-harb who has been captured by Muslims.
Darb al-ta’dheebBeating for torture.
Darb al-takseer Breaking beating.
Darb al-tashaffi Beating to achieve gratification.
Darb ta’deeb Disciplinary beating.
Fatwa (pl. fatawa)Usually a non-binding religious edict; Authoritarian statement on the point of practical knowledge of sharia law (fiqh) from an Islamic scholar.
FiqhHuman understanding of the sharia law. It is expanded and developed by interpretation of the Quran and Sunnah by Islamic jurists and implemented by the fatwa.
HadithA collection of traditions describing the words, actions, or habits of the prophet Muhammad.
Jihad”Holy war” against the ?nemies of Islam; But also, a spiritual struggle within oneself against sin.
Ib?dahWorship or prayer.
Khil?fahCaliphate or a Muslim empire governed by sharia law.
KitabiyatWomen who belong among the “People of the Book,” i.e., Jews and Christians.
Koran (also Quran)The central religious text of Islam, which Muslims believe to be a revelation from God Allah.
Kuffar (pl.)A non-believer. In literature this term is often used interchangeably with mushrikin, though kuffar is a broader term, encompassing polytheists, apostates and sometimes even Religions of the Book.
Kufr asliOriginal and inveterate unbelief, which is the kind that characterizes non-Muslims, such as Jews and Christians.
MurtadApostate; A Muslim who has consciously abandoned Islam.
Mushrik (pl. mushrikin)The one who falsely associates something with God; Polyatheist.
SalahIt is a physical, mental, and spiritual act of worship that is observed five times every day at prescribed times: at dawn (fajr), at noon (dhuhr), in the afternoon (asr), at sunset (maghrib) and at night (isha´a).
ShariaLaw derived from the religious precepts of Islam, particularly the Quran and the Hadith.
Table of Contents
TOC o “1-6” h z u Abstract PAGEREF _Toc526333181 h iiiAcknowledgments PAGEREF _Toc526333182 h ivGlossary of Abbreviations PAGEREF _Toc526333183 h vGlossary of the Arabic Terms PAGEREF _Toc526333184 h vii1The Characteristics of the Thesis PAGEREF _Toc526333185 h 31.1Introduction to the Research Topic PAGEREF _Toc526333186 h 31.2Research Question and Objective of the Study PAGEREF _Toc526333187 h 51.4Research Methodology PAGEREF _Toc526333188 h 61.5Definitions of the Key Terms PAGEREF _Toc526333189 h 82Paving a Pathway to the Genocide PAGEREF _Toc526333190 h 102.1 The Ideology of ISIS and its Quest for Statehood PAGEREF _Toc526333191 h 102.1.1 The Rise of the Islamic State PAGEREF _Toc526333192 h 102.1.2 The Legal Categorization of the Islamic State PAGEREF _Toc526333193 h 126.96.36.199 The Concept of the State and the Islamic State PAGEREF _Toc526333194 h 188.8.131.52.1 The Criteria’s for The Statehood PAGEREF _Toc526333195 h 184.108.40.206.1.1 Permanent Population PAGEREF _Toc526333196 h 220.127.116.11.1.2 Defined Territory PAGEREF _Toc526333197 h 18.104.22.168.2 The Legitimacy of the Islamic State PAGEREF _Toc526333198 h 22.214.171.124.3 The Recognition of a State PAGEREF _Toc526333199 h 126.96.36.199. The Islamic State as a De Facto Regime PAGEREF _Toc526333200 h 202.2Who are the Yazidis and Why is ISIS Killing Them? PAGEREF _Toc526333201 h 222.2.1 Genocidal Violence against the Yazidis in 2014 PAGEREF _Toc526333202 h 2188.8.131.52 The Stories of the Survivors PAGEREF _Toc526333203 h 2184.108.40.206.1The Story of Yasmin PAGEREF _Toc526333204 h 2220.127.116.11.2The Story of Shilan PAGEREF _Toc526333205 h 218.104.22.168.3The Story of Leila PAGEREF _Toc526333206 h 302.3.1.1.4The Story of Lamiya PAGEREF _Toc526333207 h 322.214.171.124.5The Story of Dalal PAGEREF _Toc526333208 h 3126.96.36.199.6The Story of Noreen PAGEREF _Toc526333209 h 3188.8.131.52.7The Story of Farida PAGEREF _Toc526333210 h 3184.108.40.206.8The Story of Heva PAGEREF _Toc526333211 h 3220.127.116.11.9The Story of Sara PAGEREF _Toc526333212 h 363 Reasons why ISIS Uses Sexual Violence against the Yazidi Women and Girls PAGEREF _Toc526333213 h 383.1The Religious Doctrines PAGEREF _Toc526333214 h 383.2The Role of Profit Generation PAGEREF _Toc526333215 h 413.3The Role of Attracting and Bonding PAGEREF _Toc526333216 h 423.4The Humiliation and Intimidation PAGEREF _Toc526333217 h 433.5The Slow Genocide PAGEREF _Toc526333218 h 464Sexual Violence as a Constituent Act of Genocide PAGEREF _Toc526333219 h 474.1Rape PAGEREF _Toc526333220 h 475The Prosecution of the ISIS Fighters for the Genocidal Sexual Violence PAGEREF _Toc526333221 h 515.1 The Prosecution of the ISIS Fighters on the National Level PAGEREF _Toc526333222 h 515.1.1 The International Law on the Jurisdiction of States PAGEREF _Toc526333223 h 525.1.2 The Truth Commissions PAGEREF _Toc526333224 h 535.1.3 The Domestic Courts in Iraq and Syria PAGEREF _Toc526333225 h 555.1.4 The Foreign National Courts PAGEREF _Toc526333226 h 565.2 The Prosecution of the ISIS Fighters on the International Level PAGEREF _Toc526333227 h 585.2.1 The International Criminal Court PAGEREF _Toc526333228 h 518.104.22.168 The Three Strategies for Prosecution PAGEREF _Toc526333229 h 522.214.171.124.1 Article 13(b) of the Rome Statute PAGEREF _Toc526333230 h 5126.96.36.199.2 Article 13(c) of the Rome Statute PAGEREF _Toc526333231 h 6188.8.131.52.3 Article 12(2) of the Rome Statute PAGEREF _Toc526333232 h 615.2.2 Alternate mechanisms for prosecution PAGEREF _Toc526333233 h 6184.108.40.206 Ad hoc tribunal PAGEREF _Toc526333234 h 6220.127.116.11.1 Internationalized tribunals PAGEREF _Toc526333235 h 618.104.22.168.2 Hybrid regional courts PAGEREF _Toc526333236 h 656Conclusion PAGEREF _Toc526333237 h 667Bibliography PAGEREF _Toc526333238 h 70Books and Book Chapters PAGEREF _Toc526333239 h 70Journal Articles PAGEREF _Toc526333240 h 70Conventions, Charters, Statutes and Protocols PAGEREF _Toc526333241 h 71Judgments, Decisions and Advisory Opinions PAGEREF _Toc526333242 h 71Resolutions PAGEREF _Toc526333243 h 71Reports PAGEREF _Toc526333244 h 71Blogs…….. PAGEREF _Toc526333245 h 71News Articles PAGEREF _Toc526333246 h 71Websites PAGEREF _Toc526333247 h 72Interviews PAGEREF _Toc526333248 h 72Other Sources PAGEREF _Toc526333249 h 72Appendix I: ISIS Q&A Pamphlet on Female Slaves (2014) PAGEREF _Toc526333250 h 73Appendix II: Main Information about the Interviewed Yazidi Women………………………….74
The Characteristics of the ThesisIntroduction to the Research Topic”The advance of the terrorist group ISIS in the Nineveh governorate, Northern-Iraq, in the summer of 2014, was driven by a violent campaign to expand its self-styled khil?fah caliphate through the “purification” of the region of any “non-Islamic” influences. The fighters of the armed group viciously targeted various ethnic and religious minorities, such as Christians, Shabaks, Turkmens, Sabaean-Mandeans, Kurds, Shias, and Kaka´i, with the intent to curtail and control their presence in the area. Notably within the context of this persecution, they especially singled out the members of the Yazidi community for particularly brutal and premeditated treatment.
Due to their twisted interpretation of Islam, ISIS perceives the Yazidis as “devil worshiping infidels” whose only option is either to repent or face the sword. On the 3rd of August 2014, the militant group started their onslaught on the Yazidi villages surrounding Mount Sinjar. After they captured the Yazidi families, the fighters swiftly separated the men and adolescent boys from the women and children. The males were presented with a conundrum, either to convert or die. Those who refused were summarily executed, those who did not were relocated into emptied villages and used as forced labor, until they shared the fate of their companions. The Yazidi women and girls were loaded on the busses and transported to the various holding sites in Iraq and Syria, where they were either gifted to high ranking ISIS militants or auctioned off to the lower-ranking members to be used as sex slaves. While prepubescent Yazidi boys were initially held captive alongside with their mothers, the boys above age 7 were later separated, and taken into the ISIS training camps to be indoctrinated as ISIS fighters and stripped off their Yazidi identities.
Although the Independent International Commission of Inquiry on the Syrian Arab Republic (UN CoI on Syria), and several other states and entities have claimed that ISIS has committed the crime of genocide as well as multiple crimes against humanity and war crimes against the Yazidis, some authors do not agree to their explanations completely.
For instance, Andrea Rossi, argues that although ISIS may have committed the crime of genocide, it has not committed genocidal sexual violence. She has based her argument on the assumption, that rape is not genocidal if there is not a pregnancy that follows.
The author of this paper is taken a stance, that most of the episodes of the sexual violence, that ISIS has committed against the Yazidis is possible, to some extent, to connect to the crime of genocide.
Since the crime of genocidal sexual violence seems to “fly under the radar” of international and national courts, the author is also taken upon the investigation, of finding out, which are the possibilities for the prosecution of the ISIS members. With that regard, the author also identifies the legal categorization of the Islamic State under the international law.
Research Question and Objective of the StudyBased on the aforementioned, the author has proposed two research questions, from which the first is two-pronged. These are:
Why does ISIS use sexual violence against the Yazidi women and girls? And, to what extent can this violence considered to be genocidal?
What are the possibilities of prosecuting ISIS members for the genocidal sexual violence?
Regarding those questions, the author has set the following research objectives:
To identify the different reasons, what ISIS might have for using the sexual violence against the Yazidi women, and to investigate, to what extent the used violence can be seen as genocidal.
To identify the legal categorization of the ISIS, and to investigate the possible legal options for the prosecution of its members for the genocidal sexual violence they have committed.
Although there exists quite extensive research in the fields of the use of sexual violence, genocidal sexual violence, state recognition and possibilities of a prosecution, these topics are quite under-researched with regard to ISIS. With this thesis, the author is trying to fill the gap that exists in that area, by exploring the nexus between terrorism, religious doctrines, sexual violence, and genocide.
The design of this study is a single case study, with the focus on the crimes of sexual violence perpetrated by ISIS militants against the Yazidi women and girls. Using only a single case allows the author to frame an in-depth analysis, and hopefully make the reader to better understand the relations which exist in-between religion, terrorism, sexual violence, and genocide.
The more prominent part of this thesis is a qualitative desk study, based on the relevant academic literature, legal cases, and other relevant materials. To support the arguments made in the chapters 3 and 4, the author has also conducted semi-structured qualitative interviews with 9 Yazidi women, to inquire about their experience as ISIS captives. These interviews were conducted in-between 20-26 of March 2017 near Stuttgart Germany. All of the Interviewees, are part of the special-quota program and were contacted through Dr. Ezden Khudur, who conducts the follow-up interviews for the Yazda´s genocide documentation project. In authors behalf, he set up 9 follow up interviews concerning the cases of sexual violence episodes, from the media and international organizations, at the time, were still entirely silent about.
The youngest of the interviewees was 18-years old and the oldest 46. Four of them were single, 3 married and 2 widowers. During the ISIS attack, 5 of the participants had children, and 2 of them gave birth during or after their enslavement. All of the participants came from the different Yazidi settlements. On average they spent 11,5 months in the captivity and were sold 9 times. Three of them freed themselves from the captivity by running away, 2 of them got rescued, 3 were bought free, and 1 of them was set free.
As mentioned above, all of the interviews were conducted in March 2017, during a one week period. They were set up by Dr. Khudur and held at the homes of the interviewees, with the participation of the author, the co-interviewer and translator Dr. Khudur, the phycologist Mrs. Bauer and the interviewee.
All of the interviews were conducted in a manner, which ensured that the possible harm to the participants was minimal. The interviewees appear under aliases, and their real names and exact location will remain secret due to a non-disclosure agreement.
In addition, before the start of the interview, all of the women were informed about the aims of this study and asked to sign a consent form. By signing it, they acknowledged that their participation is voluntary and that they have the right to refrain from answering or pause or quite the interview at any time.
All of the interviews were held in Kurmanji, with immediate interpretation into English from Dr. Khudur. All of the participants were asked 3 fixed questions: What is your name alias? How old are you? Where do you come from? After that, they were asked to tell the interviewers their story in free form. If the interviewers found a particular topic of their interests, they asked some follow up questions. Although, all the interviews were recorded in audio and paper format their transcripts remain with Yazda´s genocide documentation project.
As for the disposition of this thesis, it is as follows. The chapter 1 will set out the research problem, objectives and the methodology for this paper. The purp?se of chapter 2 is to provide the reader with a basic understanding how ISIS came to be and the different ideas and ideologies it is built on, and why it has chosen the small religious minority, Yazidis, as its target. Moreover, through analyzing the history of Iraq, the author tries to connect the dots how Ba’athist policies paved the way for the genocide of the Yazidis. The chapter also contains 9 interviews made with genocide survivors. The aim of these interviews is to provide an additional information to support the argumentation in chapters 3 and 4. In chapter 3 the author discusses the different reasons why ISIS uses sexual violence against the Yazidi women and girls, based on the relevant accademic literature. In chapter 4, the author discussed based on the relevant academic literature and court practice to what extent different episodes of sexual violence perpetrated against the Yazidis could constitute as genocide. In chapter 5, the author tries to identify the best option for prosecuting the ISIS members for their crimes.
Definitions of the Key TermsBefore the author moves to the substantive parts of this thesis, several comments and clarifications are called for regarding the choices made in the terminology employed.
Article 2 of the 1948 Convention for the Prevention and Punishment of the Crime of Genocide, to which Iraq and the Syrian Arab Republic are parties, defines the crime of genocide as “… any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.”
The foregoing de?nition contains the complete elements of the crime of genocide, in terms of both the acti rei and the mens rea. This provision has now been incorporated directly and repeatedly into the leading modern instruments on the subject of international criminal law, such as the Statutes of the International Criminal Tribunal for Rwanda, International Criminal Tribunal for the former Yugoslavia and International Criminal Court.
The de?nition of genocide includes ?ve categories of acti rei for the crime, listed as elements (a)–(e). This list was intended to be exhaustive and not illustrative of the acts of genocide. Nevertheless, they are, for the most part, categories of acts; and within those categories, much may ?t. This is so, given that within each of the listed items, except for the ?rst (killing) and last (forcible transfer of children), there is a host of different actions the perpetration of which may reasonably ?t within the listed act as an act of genocide. And this is particularly so for the second item on the list of acti rei—i.e. “causing serious b?dily or mental harm to members of the group.”
Article 1 of the Genocide Convention characterizes genocide as “a crime under international law,” and article 6 of this convention states that the persons charged with genocide “shall be tried by a competent tribunal of the State in the territory of which the act was committed or by such international penal tribunal as may have jurisdiction ….” Article 4 of the Convention obliges c?ntracting states to punish not only persons committing genocide, but also th?se who conspire to commit genocide, directly and publicly incite the commission of genocide, attempt to commit genocide, and or who are complicit in genocide. Genocide is prohibited by both conventional and customary international law and constitutes a norm of ius cogens.
Gen?cide is the most difficult crime to pr?ve because the prosecutor must demonstrate that the perpetrator has the specific intent to destroy the protected group as such. Meaning that the act must be committed against a person because of their membership in a particular gr?up and as an incremental step in the ?verall objective of eliminating the group. This specific intent is different from the motive.
Following from article 2 of the Genocide Convention and article 6 of the Rome Statute, genocide does not automatically mean killing an entire group of people. It is possible to eliminate a group by imposing such conditions that persons of the group do not reproduce and so the group vanishes. The conducts underlying genocide are, in and of themselves, abuses of international human rights, including of the right to life, liberty and security of person; the prohibition against slavery; and the prohibition against torture or cruel, inhuman or degrading treatment or punishment. Article 6 (a) of the Elements of Crime only covers a person who is targeted because he/she belongs to a national, ethnical, racial or religious group.
Sexual violence takes multiple forms such as, inter alia, rape, forced pregnancy, forced sterilization, forced abortion, forced prostitution, sexual exploitation, trafficking, sexual enslavement, forced circumcision, castration, forced nudity or any other form of sexual violence of comparable gravity.
Paving a Pathway to the Genocide2.1 The Ideology of ISIS and its Quest for Statehood2.1.1 The Rise of the Islamic StateThe origins of ISIS lie in a militant group Jama’at al-Tawhid wal-Jihad (Jama’at) Organisation of Monotheism and Jihad, what was founded by a Jordanian jihadist Abu Musab al-Zarqawi in 1999 in Jordan. Zarqawi, a former street thug, embraced the Islam after his parents introduced him to the religion in hopes that it helps him to leave the criminal world. Zarqawi believed in an extreme interpretation of Islamic practice of excommunicating heretical Muslims, anti-Americanism and the overthrow of the Jordanian government. Because of his radical stance, at his starting years, Jama´at did not attract much support.
Jama´at started to develop from its small origin to a well-known terrorist movement after the 2003 Invasion of Iraq. Under Zarqawi´s leadership, the organization was responsible for a large number of attacks on the American forces. After Jama´at started gaining fame in the Middle East, it attracted the attention of Osama bin-Laden, the leader of al-Quaeda. Prior to the Iraq War, bin-Laden wanted to be associated with Jama’at as little as possible, because he saw their views as too extreme. However, once the war with American forces broke out, he realized that he c?uld not sit ?n the sidelines, and risk ruining his reputation as a fighter ?gainst Western imperialism. Since there was no al-Quaeda franchise in Iraq, his only option was to propose a formal alliance to Zarqawi, despite their ideological disagreements. Zarqawi accepted his proposal, and Jama’at became al-Qaeda in Iraq (AQI). The devastating political, social and economic effects of the United States led military intervention enabled the group to seize significant parts of Iraqi and Syrian soil, temporarily.
Following the death of al-Zarqawi, the group merged with other Islamic insurgents in Iraq to become the Islamic State of Iraq (ISI), under the leadership of Omar al-Baghdadi. Under the al-Baghdadi´s rule, the organization re-establish its capabilities and strength in Iraq. In 2006 the power vacuum between Iraqi province of Anbar and Baghdad gave ISI Access to the Syrian Arab Republic through the Iraqi-Syrian border. It allowed al-Baghdadi to send militants into Syria, who operated as a quasi-independent Network known as Jabhat al-Nusra li Ahl asSham (al-Nusra), against the Syrian regime in the Syrian Civil War.
In 2011, pro-democracy demonstrations in the Syrian Arab Republic escalated into a full civil war after the outbreak of the uprising against Bashar al-Assad’s regime. Amid a power vacuum in many parts of the country, the government lost control over many of the country’s territories and cities.
For 2 years ISI and al-Nusra operated separately until ISI´s new leader al-Baghdadi called for the reunification in 2013. Although the leaders of Al-Nusra, as well as the leadership of al-Quaeda, rejected the proposal, the members of al-Nusra defected, re-emerged with ISI and formed ISIS. As a result of the disagreement on the merger, ISIS disaffiliated from al-Quaeda and became an independent organization.
After ISIS had rapidly expanded its influence in Syria during the civil war, it shifted its focus back to Iraq in late 2013. After ISIS overpowered a fraction of the Iraqi army, they took advantage of the Iraqi Shia-led government´s standoff against the Sunni tribes. At the start of 2014, they started expanding their territory by taking Fallujah. Later in 2014, ISIS quickly moved forward to northern Iraq and took control over Mosul, fighting both Kurdish fighters and the Iraqi army. While the terrorist organization tightened its grip over the area in the weeks to come, al-Baghdadi declared the establishment of a self-proclaimed caliphate, the Islamic State, at the end of June.
As we can see fr?m the previous discussion, the emergence of ISIS in Iraq and Syria is not a result of a short blitzkrieg but a lengthy and complicated process. The rise of this Sunni terrorist group has been facilitated by the protracted conflicts and the resulting political instability in both countries, as well as by the inability of weakened state institutions to exercise effective control over the territories and borders of their states.
2.1.2 The Legal Categorization of the Islamic State22.214.171.124 The Concept of the State and the Islamic StateOn 29th of June 2014, the IS proclaimed itself a caliphate and its leader Abu Bakr al-Baghdadi Caliph Ibrahim the chief political and religious authority over the ummah the global community of Muslims. Notwithstanding the Islamic State´s name, this military terrorist group is generally not seen as a state in the sense of the international law. Significantly little agreement exists on the grounds upon which this characterization is denied.
126.96.36.199.1 The Criteria’s for The StatehoodThe reason that many functionaries ?f international law do not recognize Islamic State as a state, is partly owed to the criteria on the definition of a state in Article 1 of the Montevideo Convention, which states that “the State as a person of international law should possess the following qualifications: (1) a permanent population; (2) a defined territory; (3) a government; and (4) capacity to enter into relations with the other States.” It is generally agreed that these conditions represent the customary international law. The simultaneous existence of these 4 qualifications creates a sovereign entity possessing an international personality. Moreover, the absence of some of them over a period of time does not necessarily deprive a state of its international personality.
According to the traditional view, once an entity fulfills the criteria’s set out in the Convention, that entity is a state, irrespective of its recognition or non-recognition by the other states and irrespective of any other factors such as its compliance with human rights law and other rules of international law or its legality. However, as the state practice shows, the statehood can not necessarily be equated with effectiveness. Some unrelated conditions might be relevant to the determination of whether an entity should be seen as a state according to international law. If this entity is created in breach of one of the ius cogens rules, its international legal personality should be denied.
188.8.131.52.1.1 Permanent PopulationWhereas there is no strict criteria as to the size and nationality of the population, it has to be permanent, i.e., have an element of stability. Moreover, the population of a nation is supposed to share a bond of unity through cultural, historical or religious ties and it must identify with the political situation. That last aspect can be seen as an issue with respect to the inhabitants of the territory controlled by the IS. Those people, who are living in the IS-controlled areas did not voluntarily choose to tie their fate to the Islamic State´s citizenship. They rather found themselves in this situation due to the IS journey of conquest, were opposing to the organization equates to death. They could be described as quasi-hostages – they are suppressed and looking for a way out. Therefore, the population within the IS territory waxes and wanes depending on the gain and loss of territory and how many inhabitants are able to flee.
Although there are some people migrating into the IS caliphate foreign fighters, jihadi brides, this transitory movement is not enough to cover the number of people who desert it. Thus the number of people living under the IS rule is gradually decreasing. However, since there is no strict criteria for how big state´s population should be, the reducing of the population will not be an issue regarding the first Montevideo criterion. Problematic is the non-permanent character of the population, and because of that, the IS can be better defined as a nomadic terrorist group, then a stable community.
184.108.40.206.1.2 Defined TerritoryThe second criteria for the statehood is that a state has to be able to exercise control over its defined territory. Although a few years back the IS held on to a massive piece of occupied land in Iraq and Syria, its areas have significantly shrunken ever since. The gr?up has not been able to withstand the sustained pressure within several conflict zones. However, since there is no rule that prescribes the minimum size of state´s territory, or that it has to have fully defined frontiers, it is not a reason to consider this criterion as not fulfilled.
However, what will be a problem to the IS is their constant gain and loss of the territory. Although the boundaries of the state do not have to be defined, there has to be a sufficient consistency of controlled territory. Since over the past 2 years, the IS has gained and lost territory, again and again, there is no consistency.
Furthermore, Syria and Iraq are still sovereigns of the areas occupied by the IS, even though they have lost effective control over those territories because they have never given up their territories. Consequently, whenever the IS loses its territory, the original state reinstitutes its sovereignty as an acquisition of territory by occupation is only possible if the territory concerned is not under another state’s territorial sovereignty (so-called terra nullius).
Thus, it cannot be argued that the IS possesses a defined consistent territory. The second criterion of statehood is not met as well.
220.127.116.11.1.3 Effective and Independent Government
The third criterion requires that a state must provide an effective and independent government. Professor and a judge James R. Crawford considers this criterion as the central and most important criterion as all the others depend upon it. The form of the government does not play a role in this regard – a dictatorship gets treated the same way as a democracy. Therefore, the fact that the leader of the IS was not elected is, in this regard, not an issue.
The government, or at least some kind of a form of the governmental control, has to be independent and effective at exercising its authority over the defined territory and permanent populace. The definition of an independent government must include both formal and functional independence. The formal independence means that the powers of a state must be vested in the separate authorities. Moreover, the functional independence exists when a certain minimum level of power is exercised by the authorities of the state.
The IS, while lacking in democracy, does not lack for structure. It has its own government, which is independent of the other states and maintains law and order. At the top of the government, there is the Emirate (al-Imara) which makes all the critical decisions. It consists of the Caliph Ibrahim who functions as the commander in chief, ensuring the judicial as well as executive functions, and his 2 deputies Abu Muslim al-Turkmani responsible for Iraq, and Abu Ali al-Anbari responsible for Syria. To both of them are subordinated, 12 governors. The cabinet is also advised by 9 councils, which are similar to the departments in ministries.
First, there is the Leadership Council, which makes the law and handles all of the crucial decisions which will have to be approved by the caliph. It is advised by the Shura Council, which consists of 9 judges. There is also a Legal Council, which deals with the religious infractions, family disputes, punishments and the recruitment of new fighters. The Military Council is responsible for the defense and the development of fighting strategies. The Security Council carries out the executions and develops the internal policy of the IS. The Intelligence Council researches the enemies of the caliphate. The Financial Council supervises the tax system and functions as a treasury. It also handles the collection of ransom money and the oil and weapon sales. The Media Council controls the IS posts in the social media. And lastly, the Fighters Assistance Council provides help and housing for the foreign fighters.
Furthermore, the IS also manages a social welfare system which includes the provision of healthcare and education. It also carries out municipal services such as police patrols and trash collection.
As a c?nclusion, it can be said that the IS has a structure that mirrors the modern states.
18.104.22.168.1.4 The Capacity to Enter into Relations with the Other States
The last criterion that is listed in the Montevideo Convention is the state´s capacity to enter into relations with the other states. The necessary predisposition which is needed to fulfill this requirement have also, for example, independent national enterprises and insurgents. Therefore, the capacity to enter into the relations it is more of a consequence of being a state, rather than a prerequisite sensu stricto. Essentially, it is the case thus that the essence of the capacity to enter into relations with other states is the independence.
The capacity to enter into international diplomatic relations with the other states is partially reliant on the power of the government. Whenever the countries do not acknowledge the existence of a state, then its existence turns out to be meaningless to fulfill the fourth criterion. Notably, the IS has no embassies in the other sovereign states. Furthermore, it has not been recognized as a state by any other state. Moreover, the IS also has no foreseeable will and ambition to negotiate with the member states of the UN and vice versa. Even if it would want to enter into relation with the other states, those attempts would most likely not to be accepted. However, what is required to fulfill the criterion, is not a concrete commitment with the other states, but the mere capability to do so. However, what becomes a hindrance for the IS on their path of becoming a state, is their incapability of recognizing the sovereignty of all the other states. In the past they have made a declaration that “the legality of all emirates, groups, states, and organizations, becomes null by the expansion of the khil?fah’s authority and the arrival of its troops to their areas,” Therefore IS does not fulfill the last Montevideo criterion.
22.214.171.124.2 The Legitimacy of the Islamic StateIn one hand, in the past, there have been some entities which did not fully fulfill the criteria of statehood, but since they received the international legitimacy and recognition, it served as the basis for their legal status as states. On the other hand, there also have been some entities, like Somaliland, which have met the statehood requirements, but since they were not established in accordance with international law norms, they have not received legitimacy and been recognized by the other states.
Notably, in order to achieve a legal status of a state, the entity has to follow the rules set up by the international law. In the most cases where the issue of statehood is on the table, the entity has not been regarded as a state, if it was either created in the breach of 3 norms of international law, because of the lack of actual independence and because it does not satisfy one of the Montevideo criteria’s. These 3 norms of international law, which must be respected are the prohibition of aggression and the acquisition of territory by force, the prohibition of racial discrimination and the right to self-determination. The entities receive legitimacy when they get considered as a realization of the right to self-determination of the people in their controlled territory. Self-determination is the right of the population to decide upon its own faith and destiny.
However, because the sovereignty of the state is an essential cornerstone of the international law, the capability of the non-state groups to realize the right to the self-determination is usually reduced by the right of the existing states to preserve their territorial integrity.
In casu, the question here lies whether the IS is the legitimate realization of the people’s right to secede from the existing states of the Syrian Arab Republic and Iraq. In general, the secession from an existing state violates the sovereignty of that state. Furthermore, the UN SC has stated that the use of the military force as an instrument to define the boundaries of a state is outlawed by the international law. Moreover, the IS, violates also the self-determination of the population of the occupied areas in Syria and Iraq, by abusing their rights and oppressing them. It is the deterioration of the status quo. The areas which are occupied by the IS are still sovereign under the states of the Syrian Arab Republic and Iraq since neither country has renounced its territory in support of the terrorist group. Thus, as long as these states have not officially surrendered or disintegrated the sovereignty over their territories through one of the methods accepted under the international law, their right to sovereign integrity remains in force.
In addition, at this stage, the IS does not have the international legitimacy. None of the existing states nor the UN has recognized its self-proclaimed statehood.
126.96.36.199.3 The Recognition of a StateIn the international law, there exists a doctrinal debate between 2 competing theories of state recognition. Although at the moment the “declaratory” view still seems to be the dominant one, it is starting to decline in favor of the “constitutive” view. Professor James Crawford defines the declaratory theory as “the theory that statehood is a legal status independent of recognition…” and the constitutive theory as “the theory that the rights and duties pertaining to statehood derive from recognition only….”
While the declaratory approach considers the state’s announcement of its sovereignty within the realm it exclusively controls, to decide, if it can access the international plane, the constitutive theory proclaims that the state´s recognition is nearly irrelevant because the other states have little to no discretion in the determining whether an entity constitutes a state. It is claimed that the recognition should be automatic, based on the definite norms, since the status of statehood is based on the facts, not on the individual state discretion. Most of the scholars assume that the recognition itself does not create the statehood. A state is a state because it acts like one. The Articles 3 and 6 of the Montevideo Convention state that “the political existence of the state is independent of recognition by the other states.”
Radical proponents of the declaratory theory have a hard time rejecting the IS´s character as a state. The declaratory theory ultimately means that even the most tyrannical regime can constitute a state regardless of whether it is recognized or not as soon as it fulfills the 3 criteria of statehood – all that matters it is effectiveness.
The claim that the IS does not have a defined territory or a government would demand a restrictive application that runs counter to many historical examples of the establishment of states. However, from the legal point of view, it will seem arbitrary to apply the statehood requirements differently, so they will be based on the political situations. One possible solution to that would be to require a higher standard of governance than mere effective control.
However, the rigorous use of the constructive doctrine is to be banned as well, since one entity can at the same time constitute a non-state in the eyes of some and state in the eyes of the others. The recognition of an entity as a state is not automatic. It is left to the entities that are already acknowledged members of the international plane to decide, whether a given entity would become a state or not. Additionally, only upon the recognition by other states does the new state exist, at least in the legal sense.
The main issue with these theories is that they both miss a part of the analysis, since the declaratory theory concentrates on the factual internal situation and the constitutive theory concentrates on the external legal rights and duties.
To sum up, the difficult circumstances surrounding non-state actors, like the IS, highlight the enduring importance of the recognition. The international plane has to take significant measures towards preventing this kind of entities becoming into an existence as a legal state. The IS situation shows that there is a need for a middle path regard to the 2 competing theories. Any entity may enjoy the objective statehood if it is recognized by a certain number of states the particular number of states, is not determined. In practice, however, a criterion like the observance of the human rights, the rule of law, or a certain degree of representatives is usually taken into account, when the new entity wants to become a state. Accordingly, based on those assumptions, the IS neither currently constitutes a state, nor would it be able to achieve the statehood in the future.
188.8.131.52. The Islamic State as a De Facto RegimeThe fact that the IS is not recognized as a state does, however, not exclude the recognition of that group in some other capacity. It could be argued that the IS can be regarded as a de facto regime, which is an entity which exercises “at least some … effective authority over a territory within a state.” These regimes aim to be independent and represent the state of which it, completely or partially, controls the territory in the capacity of an official government. This position is signifying the regime’s factual control and its illegal foundations. Because of the fact, the IS claims to be independent and since it exercises an effective authority over the certain areas in the states the Syrian Arab Republic and Iraq, they could be considered as a de facto regime.
It is crucial to differentiate in-between the de facto regimes and states. A de facto state is a geographical and political entity that has all the features of the state, but is unable to achieve any degree of substantive recognition and therefore remains illegitimate in the eyes of international society. The IS, however, cannot be considered as a de facto state, since as previously established, they do not have all the features of the state.
Although, the de facto regimes have even without any recognition a minimum set of rights and obligations under international law, the way which they are deemed internationally has serious consequences for the individuals who are under the influence of these entities. Among the rights the de facto regimes have are for example the protection of their territorial integrity and a right not to become a target of a force as referred to in Article 2(4) of the UN Charter. However, the named rights solely apply to the pacified de facto regimes. When there is an ongoing conflict amid a de facto regime and its opponent, the prohibition of force only holds true between the third states not engaged in the conflict and the regime. Since the conflict between the IS and its opponents is ongoing, the terrorist group cannot enjoy the previously mentioned rights. Furthermore, even if they would apply to the group, quod non, the question will be whether these rights would be respected considering the gravity and scale of the group´s crimes.
From here we can raise another question: are the de facto regimes bound by the international criminal law (ICL) and international humanitarian law (IHL), including the core crimes? Firstly, with regard to the ICL, there are certain provisions, such as Article 5 of the Rome Statute, which must be respected by the individuals who are part of a de facto regime. Thus, the IS members are therefore prohibited from committing war crimes, crimes against the humanity and genocide. Secondly, regarding the IHL, it is generally agreed that de facto regimes indeed have obligations such as respecting fundamental human rights etc. under the IHL in international and non-international armed conflicts.
The answer to the question whether the de facto regimes have any obligations towards the individuals living under their territory is less clear. Although it appears that the international community wants to hold de facto regimes to basic internal human rights norms, the enforcement of these human rights law obligations, on the other hand, will be very difficult. Therefore the IS is bound by the IHL obligations, under certain conditions. As confirmed by the UN, they have already committed countless human rights abuses, such as violations of the right to life, freedom of religion, the prohibition against slavery etc.
Furthermore, it is generally accepted that de facto regimes have a limited degree of international legal personality. The fact that these regimes are bound by international rights and obligations, is in itself, an indication of the international legal personality, regardless of the acceptance of the entity into the international plane.
As a conclusion, it can be noted that the IS can be described as a de facto regime. It possesses a limited degree of international legal personality. The IS is bound by ICL, including IHL and to some extent by obligations deriving from international human rights.
2.2Who are the Yazidis and Why is ISIS Killing Them?The Yazidis are an indigenous minority group who lives in the Nineveh Governorate, Northern-Iraq. Before the ISIS attack in 2014, they constituted 60% of the inhabitants of the Sinjar province.
They are often regarded as an ethnoreligious group, especially when they are violently targeted, repressed or discriminated by the surrounding Muslim communities. An ethnic group is defined under the UN Genocide Convention as a group “whose members share a common language or culture,” and religious group as a group “whose members share the same religion, denomination or mode of worship.”
Although many of the Yazidi communities “view themselves as ethnically Kurdish, they follow the Yazidi religion and speak northern Kurdish dialect Kurmanji. In other words, they consider themselves as “a separate religious denomination, with distinct modes of worship.” Yazidi religion is a synthetic combination of several other religions. It contains pagan, Manichaean, Zoroastrian, Jewish, Muslim and Christian elements. It is also a dualistic religion. Yazidis believe in a passive Creator God and the Peacock Angel, which is an executive organ of divine will. Even though the Peacock Angel, Malak-Tawus, is a force for good in Yazidi religion, its pronunciation sounds like the “the devil” or “Shaytan.” They also believe to be children of Adam, but not Eve, and therefore to be different from other people. Although Yazidis do not have an official Holy Book to refer to, they have two sacred books, which they can consult: the Meshef Resh, or The Black Book and: the Kitab el-Jelwa, or the Book of Revelation. Their religious knowledge is passed on from generation to generation in an oral manner.
Yazidis and they religion were already prosecuted during the rule of the Ottoman Empire. They have been described as a “looters,” “bandits who do not pay their taxes” and a “pervert community.” Yazidi women have also been overly sexualized and declared promiscuous in the eyes of many Muslims, due to the fact that they celebrate together with men without covering their heads, as a proper believer should. Some religious groups go even further and believe that the Yazidis are the devil-worshipers “because of their unique worship of the fallen Peacock angel.” This belief even deepened by the fact that Yazidis see snakes, especially black ones, as a sacred animal.
Moreover, the Yezidism is a closed religion, in meaning that it does not allow any conversions. Marriage outside of the community is forbidden since to be a Yazidi a child must have 2 Yazidi parents. Their unique practice regarding converts emphasizes the fact that the religion is self-contained. Therefore, displacement makes their unique religion and traditions even more vulnerable. Their belief in maintaining ancient bloodlines and disallowance of new converts combined with self-containment is causing the Yazidi religion to disappear.
Yazidis have historically been cultivators and herdsmen who try to maintain their traditions also in their daily lives. Yazidis in the Sinjar region grow sheep and cattle and cultivate various grains and vegetables. What is harmful to the traditional ways the Yazidis live, is the fact that the government of Iraq does not allow Yazidis to officially own the land they are living on. Therefore, the Yazidis have been oppressed and living in a constant fear of losing their homelands and thus their jobs. Unlike, the state of Iraq, the Kurdish regional government has granted Yazidi minority a full religious freedom. They even have 2 ministerial posts under the regional government. However,
Therefore, Yazidis have been oppressed and in the fear of losing their jobs and homelands also under the Iraqi government. At the same time, the Kurdish regional government in Iraq has granted full religious freedom to Yazidi minority. Yazidis further have two ministerial posts under the regional government. However, Yazidis have also criticized Kurdish officials for poor treatment of Yazidi persistent pressure to assimilate with Iraqi Kurds.
It seems that Yazidis are the most oppressed minority in Iraq because their religion and beliefs are often misunderstood by Muslims. Yazidis claim that they have suffered 73 attempts of annihilation or genocides Firmans since the rule of the Ottoman Empire. The latest, 74th, was the ISIS attack in August 2014.
Throughout the history, Yazidis have been heavily persecuted under successive Islamic regimes due to several factors. They are being targeted because their religion is seen as polytheistic, even though they identify themselves as monotheists. Islamic tradition further values a written scripture, while the Yazidis have an oral tradition. Moreover, they are not considered to be the “People of the Book.” Thu, the extreme fundamentalist Muslims believe that Yazidis are “non-believers” and it is not forbidden to kill them. This kind of accusations started already in the late 16th and early 17th century. Notably, the organized anti-Yazidi violence started during the Ottoman Empire when both the Ottoman and Kurdish leaders targeted Yazidis through brutal and violent campaigns.
To continue, Yazidis “often share the same political fate as Iraq’s other Kurds” because they speak a northern Kurdish dialect. It can be argued, that the groundwork for the catastrophe that befell Yazidis was laid in the mid-1970s when Saddam Hussein initiated his Arabization ta’rib campaign, with the aim to control the Sinjar region against the Kurdish separatists through the ethnic “dilution.” The government forces destroyed landmarks, homes, orchards and water sources to consolidate the displacement of the population. As a result, almost 100 000 Yazidis from 148 hamlets, to the north and south of Mount Sinjar, were forced to relocate to 11 collective townships mujamma’at, which were beforehand intentionally populated with and surrounded by Arab tribes brought over from the south. The resettled Yazidis were prohibited from speaking Kurmanji and under constant pressure from the authorities to “correct” their ethnicity.
After the fall of the Saddam Hussein in 2003, there was a sudden rise of a Islamic fundamentalism in the region. Religious extremists and terrorist groups started to attack the peaceful Yazidi community. Since then, hundreds of Yazidis have been beheaded, killed, and mutilated by the insurgencies. Yazidis have also suffered from the series of bombings. The most devastating attack occurred in August 2007, when four al-Qaeda’s truck bombs killed over 500 people, of which 215 were Yazidis, in one day.
Moreover, Yazidis have been targeted by other means as well, besides killings. There have been cases where Yazidi women have been abducted and forced to marry the members of the Kurdish security forces. Such marriages force the victims to reject their faith and identify as Kurds since the marriage outside of Yazidi religion is taboo.
Due to the violent history and especially the attacks in 2014, the Yazidis “fear the end of their people and their religion.” Emigration, extermination, and settlement of the community will bring tragic transformations to the Yazidi religion. The Yazidis are afraid that their religion will be wiped from earth since ISIS has taken their land, executed their people and forced them to convert.
2.2.1 Genocidal Violence against the Yazidis in 2014
The pre-ISIS population of the Sinjar region is listed at 93 000 households, or 558 000 individuals, according to the statistics provided by the local officials. The northern side of Sinjar encompasses 8 collectives Khanasor, Sinuni, Degure, Dehola, Borek, Zorava, Gulbal and Hardan, that are located off the main highway running parallel to the mountain. These communities were created during the Arabization campaign in the 1970s and they became population hubs since most of the Yazidi population lived in them. sizeable population also lives in small villages and farms around the mountain base.
In the early morning of August 3rd, 2014, ISIS fighters seized the districts of Sinjar, Tel Afar and the Ninewa Plains. They targeted systematically and intentionally ethnic and religious communities in the areas. This led to a mass exodus of Christians, Yazidis, and members of other ethnic and religious groups. The program of the destruction was not only to destroy lives, but also to cause irreparable damage to the fabric of Iraq’s society, and to fuel inter-ethnic, sectarian and inter-religious tensions in the region and beyond. The attack on the local communities was organized very well. Hundreds of ISIS soldiers acted in unison seizing cities and villages on all sides of Mount Sinjar. A series of widespread and systematic attacks took place in Yazidi populated villages and cities, while about 50 000 people escaped in fear to the Mount Sinjar, where they were trapped for days without both water and food. It is estimated that 2.5% of the Yazidi population was either killed or kidnapped over the course of a few days, amounting to 9,900 95% CI 7,000–13,900 people in total. An estimated 3,100 95% CI 2,100–4,400 Yazidis were killed, with nearly half of them executed – either shot, beheaded, or burned alive—while the rest died on Mount Sinjar from starvation, dehydration, or injuries during the ISIS siege. The estimated number kidnapped is 6,800 95% CI 4,200–10,800.
The campaign against the Yazidi minority started with an armed assault against their homelands in the Sinjar region and moved soon against their communities. The militants did not face much resistance, since many of the local Peshmerga fighters withdraw from the region, leaving the Yazidi community defenseless. “By daybreak, Yazidi families from hundreds of villages across Sinjar were fleeing their homes in fear and panic.” ISIS militants took control over the main roads and all strategic junctions. They set up checkpoints and sent mobile patrols to search for fleeing Yazidis. They captured thousands of them. Almost all the villages and cities, with the exception of Kocho, were emptied within 72 hours.
ISIS fighters systematically separated the men and adolescent boys from the women and children and asked them to convert to Islam. Those who refused were summarily executed, those who did were taken away and used as forced labor, only to later share the same faith. The Yazidi women and girls were loaded on the busses and transported to multiple holding sites in Iraq and Syria, where they were either gifted to high ranking ISIS militants or auctioned off to fighters to be used as sex slaves. While prepubescent Yazidi boys were initially held captive along with their mothers, ISIS militants later separated the boys above age 7, and took them to their training camps to strip them of their Yazidi identities and indoctrinate them as ISIS fighters.
In the next point of this thesis, the author gives a change for 9 genocide survivors to tell their stories, in order to “put a face” on the Yazidi genocide.
184.108.40.206 The Stories of the Survivors 220.127.116.11.1The Story of YasminYasmin is a 21-year old Yazidi girl with small round face, long blonde hair and blue-gray eyes. She comes from a tiny village called Gabara, which lies about 9 kilometers north-west of the city of Sinjar. Before the ISIS attack, she and her family made their living by growing various vegetables, such as fava beans, onions, and peppers. Although they were n?t wealthy, they had all they needed.
When ISIS forces entered the valley, her family tried to flee to the mountains but got captured by a patrol. Her father, uncle and 3 older brothers were killed on the spot. Yasmin, alongside with her twin sister Zaina, her uncle´s wife Almas and her 4 cousins got loaded on a truck and taken to Tal Afar. After the arrival, they were led at gunpoint into a big hall, where they were registered, photographed and auctioned off one by one. Yasmin, her sister, and their 11-year old cousin Hoda got bought by an enormous bearded fighter. When he tried to take them away, Almas attempted to stop him, but he punched her in her stomach with the butt of his rifle. The man, whom the girls got to know as Abu Jaffa, took them into his house and “married” them all for several weeks before giving them away as a gift to his brother.
Their next owner, Abu Hassan, was a cruel and savage man. If the girls did not obey his sexual whims, he forced them to pleasure each other orally, while he watched. Zaina could not bear this kind of treatment for more than a week. One morning she slit her wrists in the bathroom with a piece of broken glass. Yasmin and Hoda got severely punished for her actions. Both girls were sexually mutilated and gang-raped. Hoda died two days later because of internal bleeding. On the same evening, Yasmin tried to commit suicide but got caught. Abu Hassan gave her away for a pack of cigars. Within the next few weeks, Yasmin changed her ownership six times. Eventually, she ended up as one of the concubines of an ISIS Emir. When 7 months later she gave birth to a baby boy, she was sold again, without her child.
Yasmin was bought by a Turkish fighter called Abu Sherkan. He raped her multiple times a day and forced her to take contraceptives. When Yasmin got pregnant despite that, he beat her up so severely that she ended up at the hospital. After being released a few days later, Yasmin started to plan her escape. One morning, when her owner was at the market, Yasmin took as much food and water as she could carry and wrapped it into a scarf. Then she crawled out of a basement window and ran. Yasmin wandered through the wasteland for 3 days before she was picked up by a passing Arab family, who helped her to reach to the Kurdish checkpoint. From there she was taken to the nearest refugee camp. Six months later Yasmin gave birth to a beautiful baby boy, whom she named Khaled.
18.104.22.168.2The Story of ShilanShilan is a 24-year old nursing student from Khana Sor. She was supp?sed to get married in September and start working, side by side with her new husband, in the medical center in Snune. However, after ISIS overtook her village, that dream died, together with her father, mother, fiancé and 7 brothers. Shilan and her 2 younger sisters, Hanan and Janar, were transported to Raqqa and placed into an underground holding cell, together with 150 other women and children. They were f?rced to live in horrible conditions – survive on minimal food and water, with no proper place to rest or relieve themselves. Many of the children died because of the thirst and malnutrition. Their bodies were left to rot in in situ – no one ever came to take them away.
After they had spent 2 weeks in the holding cell, Shilan and her sisters got sold to a Tunisian doctor called Abu Karim. He forced them to convert to Islam and participate in salah. The girls had to study the Quran for an hour each day and only speak in Arabic, even amongst themselves. They were also responsible for cooking, cleaning and tending the injured fighters. When Abu Karim learned, that Shilan had studied medicine, he forced her to take blood from herself and her sisters, in every 2 months, for his blood supply. After the first donation, he told them, that Hanan and Janar lack some crucial vitamins in their system. He asked if the girls would allow him to help to fix that problem, by giving them injections once a day. Since Hanan and Janar did not question his good intentions, they agreed. Later, they found out the truth that instead of the vitamins Abu Karim had administered them with growth hormones so that he could accelerate their physical aging and sell them for a higher market price.
Abu Karim sold the sisters to an American fighter, who raped them 2-3 times a day, often under the influence of drugs. During their second week with him, Shilan managed to steal his cell phone and call her fiancé´s brother Nayef. He contacted his friend who lives near Raqqa, who in turn reached out to a network of smugglers, who would help the girls escape. They had to wait for a suitable moment for almost 2 months. In one evening, when their owner had fallen asleep without unlocking the door, the sisters quickly sneaked out in the street and sat in the car, which drove them to safety.
22.214.171.124.3The Story of LeilaLeila is a widower and a mother of 6 who comes from a small village called Al-Qabusia. This 46-year old woman is certain that she is only alive because of her 21-year old son Zedo, who convinced the reminders of their family to pretend to convert to Islam after he had witnessed the death of his 2 older brothers. Leila and her family were taken to Qasr Mahab, where they had to share a small dwelling with 3 other households. Each day the women and children were forced to work at the local farm, while men were occupied with construction and roadwork.
Soon after their arrival, Leila realized, that their conversion will not refrain ISIS fighters from harming them. They got punished for every small misconduct, such as for working too slow or for being late to the prayer. The family started thinking about escaping, but since the preparations were time-consuming and had to be done in secret, the faith intervened before they managed to leave. In one evening ISIS fighters entered their home and dragged all the adult males out on the street. They were lined up at the side of the house and executed. The women and children were taken to the central square and auctioned off.
Leila, her youngest son, and 2 daughters were bought by a Saudi fighter called Abu Abdullah. While Leila had to take care of the house, her daughters had to “take care” of its owner. When Abu Abdullah got bored of the company of the girls, he took Leila´s 11-year old son Darvan into the room and forced him at gunpoint to rape his sisters. In one evening Darvan decided to fight back and managed to surprise his captor. However, since he had never used a gun before, the bullet only grazed Abu Abdullah´s leg. After that incident, the whole family got punished. They were taken in front of the house, where Darvan was forced to whip his mother and sisters for 100 times each before he was publicly executed. Abu Abdullah tried to sell Leila´s family off to the other fighters, but since there were no buyers, he reluctantly agreed to sell them to Leila´s brother instead for 8000 euros.
126.96.36.199.4The Story of Lamiya33-year old Lamiya lived in Hardan with her husband and two little sons. On the day of the attack, she was home alone with her 4-year old son Safan. Her husband and her oldest son Sifan had gone to move family´s sheep from one feeding area to another. Lamiya does not know what happened to them.
She and her youngest son, together with about 40 other women and children from their village, were loaded on a bus and taken t? the ISIS stronghold in Raqqa. During that journey, they had little food and barely any water to survive on. Several people died from thirst. Their b?dies were dumped at the side of the road. Lamiya managed to keep herself and her son alive by drinking their own urine. In Raqqa they were first taken into a small house, where they got registered and photographed. Later they were moved into a bigger house with a garden, where they stayed for six days until they were sold off to Lebanese fighter for 170 USD. The man, whose name was Abu Mahmud, took Lamiya and her son into his house and forced them to convert to Islam. He gave them both Arabic names – Lamiya was renamed as Nawal and Safan as Abdul. Lamiya had to pray 5 times a day and wear a niq?b, even while she was being raped.
A month later Lamiya and her son were sold to a Syrian fighter called Abu Elias. He kept them only for a day. During the next few months, their ownership changed at a rapid pace until they ended up with a Saudi fighter named Abu Samar. He turned out to be extremely violent and brutal and thus made their life a living hell. Each day he died Lamiya up on his bed and took her by force for 3-4 hours straight. He even did not stop, when she lost her consciousness. One day, when she regained her consciousness a bit earlier than her captor probably had expected, she witnessed him raping his 4-year old son. Although Lamiya was still weak, she tried to interfere, but the fighter grabbed her by her hair and dragged her out of the room. When she kept screaming behind the closed door, Abu Elias came out again and started beating him with a metal rod. Lamiya got hurt so badly, that she had to be treated by a doctor. From him, she learned, that she was pregnant.
After being released from the medical center, Lamiya started planning her escape. One evening, when Abu Samar was not home, she dressed in his clothes and sneaked out from the back door with her son. They wandered aimlessly on the streets, hiding at every moment they thought they were in danger. When they reached to the edge of the city, they slept the day away in an abandoned house. Next night they kept going as far away from Raqqa as they could. On their 5th day of travel, they were picked up by an old Arab man who, for a small sum of money, agreed to take them to the Iraqi border. Eight months later, in a refugee camp, Lamiya gave birth to a baby girl, Basi, who was put up for adoption.
188.8.131.52.5The Story of Dalal19-year old Dalal, who has long black hair and big brown eyes, comes from a small village called Sibal. She is the youngest of 5 of her siblings and the only daughter. When ISIS militants attacked her village, they killed all the men, including her father and brothers. Majority of the women and children were loaded on the bus and taken to Tal Afar. Only Dalal´s mother and a few other women were left behind to mourn over the bodies of their husbands and sons.
In Tal Afar, most of the women and children got taken off the bus. Dalal with 20 other girls had to stay on it. They were taken to the ISIS stronghold in Raqqa and put up for an auction. She and a couple of other girls got bought by a Syrian fighter. He loaded them into his truck and dr?ve them to Damascus, where he sold them to a madam named Simone. Dalal and the other girls were taken into a big house and put into separate rooms. They were ordered to change into the lingerie and put on some makeup. On the same evening, they had to service their first clients. Dalal´s first customer was a short and fat man, who was about 50-years old. She tried to fight him off, but the man was stronger than her.
During her usual workday, Dalal had to service 5-10 customers. She tried to escape from the brother a couple of times, but she was always brought back. After a while, Dalal just accepted her faith. About 14 months later she got lucky. One of her clients forgot his cell phone behind. She hid it, and at night she called her mother. To Dalal´s surprise, she answered. Dalal told her mother about her situation, and together they came up with a plan. Dalal´s mother borrowed as much money from her relatives as she could and then sent one of her friends to Damascus. The man posed as a client, who wants to buy Dalal from the brothel. After a lengthy negotiation madam Simone finally agreed to let Dalal go for 35 000 euros. Dalal was taken to the refugee camp in Iraq, where she got finally reunited with her mother.
184.108.40.206.6The Story of Noreen28-year old Noreen is a widower and a mother of 3 from Tal Banat. She, her 2 sons and a daughter used to live in a small house at the edge of the village. When the fighters came, her house was burned down to the ground, alongside with several other dwellings in the neighborhood. Families from those homes got taken at gunpoint to the main square. The militants lined up all the men and executed them. The women and children were loaded on a bus and taken to Mosul. During the trip, Noreen heard from one of her friends, that the Arab families living in the village had sold them out to ISIS. The night before the attack they had marked all the Yazidi homes with k?f.
When they reached to Mosul Noreen was separated from her 8-year old daughter Maram. She was actioned off to a Tunisian fighter. When Noreen tried to fight for her daughter, she got brutally beaten. After her wounds had healed, she was put up for an auction as well, together with her 2 sons. They were bought by an Iraqi fighter called Abu Akeem. The man raped Noreen on the same night. The similar scenario went on for a week until he sold them to a Syrian fighter named Abu Masoud.
Noreen´s next owner was a violent man. He raped her multiple times a day, and whenever she disobeyed him, he beat her and her 2 sons with cables. Abu Masoud despised children. The boys had to be dead-quiet around the house because when they made any noise, he burned them with iron rods. For their meals, the kids were forced to eat rice which was mixed with small pieces of glass. If they started crying from the pain, Abu Masoud had an opportunity to punish them again. After a few weeks of suffering, Noreen decided to escape. One day, when her owner was sleeping, she took her sons and climbed out of a second story window and jumped on the balcony below. They did not get to run far. They were seen by one of Abu Masoud´s friend and taken back to imprisonment. Noreen and her sons got punished with another beating. Abu Masoud gave them away for a few days later. Their new owner kept them around only for a week.
During the next half a year, Noreen and her sons were sold and gifted more than 10 times. Finally, they ended up with a 60-year old Syrian man, with a wife and 3 kids. Noreen had to babysit his children and do all the chores around the house. Syrians family was friendly to her and her sons. They were even allowed to contact her relatives, to let them know, that they are alive and well. During the phone call, Noreen´s uncle made Syrian a proposition to buy her and her sons free. They reached an agreement on 19 000 euros.
One of Syrian´s friends helped Noreen and her family reach the refugee camp in Duhok. There were they reconnected with Noreen´s uncle, her wife, and 3 daughters. After 8 spending 8 months in the camp, Noreen and her sons got accepted to the special program launched by the German state of Baden-Württemberg to offer refuge to survivors of ISIS violence. They were flown to Germany and accommodated in a small village near Stuttgart.
In the August 2018, when Noreen was doing her usual grocery shopping, she saw Abu Masoud. He threatened her, that if she exposes him, he will find her and her children and kill them. Noreen was terrified, but a few days later, she decided to report about the incident to the police. Unfortunately, Abu Masoud was never found.
220.127.116.11.7The Story of Farida31-year old seamstress Farida lived with her husband and 3 young kids in the Sinjar city. When ISIS came, they tried to reach the mountains, but since she and her husband had to carry all of their children, they could not move fast and got caught. Militants shot Farida´s husband, and she and her children were loaded on a truck and taken back to Sinjar.
In Sinjar they were loaded on a bus and taken to Raqqa city. The journey there was a living hell. The bus was loaded so full of people, that they were forced to sit in each other’s laps. The children were crying from hunger and thirst, and whenever the noise level got too high, the fighters started to hit them randomly. Farida´s 2-year old son Abbas died on the road. He was ill and needed his medicine, but it had been put into her husband´s coat pocket.
In Raqqa Farida and her 4-year old daughter, Muna and 8-month old son Handi were taken to a small house filled with fighters. They were paraded in between them, while they were making their bids. Farida and her kids were bought for 100 dollars by a Syrian fighter. The man, called Abu Suhail, took them to his home and introduced them to his family – a wife, 2 daughters and a son. Farida was assigned to help Abu Suhail´s wife with cooking and cleaning. The Syrian family seemed friendly, and for a week they lived quite happily together. Then one evening everything changed. Abu Suhail’s wife told Farida after dinner, that since Farida looks really exhausted, she can go and rest. The wife promised to finish up cleaning and put children to bed. Farida was thankful for a little free time, she could get and went to her bedroom. Just when she was about t? fall asleep, she heard someone enter. It was Abu Suhail. He pinned her down to the bed and raped her. A few days later the family sold Farida and her children.
Their next owner was a Pakistani fighter called Abu Hamid. He raped Farida 3-4 times a day. Whenever she tried to fight him, he took her 4-year old daughter Muna and forced her to pleasure himself. Moreover, whenever Muna disobeyed, and that happened quite often, he forced her to watch either pornographic movies or her mother´s raping. After a few weeks, Handi got very sick. He had a high fever and a terrible skin rash. Farida begged Abu Hamid to allow her to take his son to the doctor, but he refused, saying that: “the only good Yazidi, is a dead Yazidi.” Three days later Handi died. Farida decided to commit suicide and take her daughter with her. They both took some pills that she had managed to find, but they did nothing, except making them a little bit dizzy. When Abu Hamid found out what Farida had tried to do, he called over his friends to gang-rape her. She and her daughter got sold a day later.
During the next month, they changed their ownership 5 times before they ended up with a Syrian fighter called Abu Omar. He forced Farida to cook, clean and pleasure himself on a daily basis. On their third week with him, he handed Farida a letter of emancipation and told her that she and her daughter were free to leave. Farida did not believe him at first and thought that it was a cruel joke, but after she carefully studied the document, she was convinced that it was real. She took her daughter and her few personal items and left. On her way out of the city militants tried to stop her a few times, but after, she showed them the letter, she was let go.
18.104.22.168.8The Story of Heva35-year old Heva lived with her husband and 4-children in Tal-Qasab. When they heard, that ISIS forces had entered the valley, they decided to flee. The family packed a few things and tried to reach the mountains, together with some other villagers. They were surrounded by an ISIS patrol near Qinyeh. Militants rounded up all the men and executed them at the side of the road. The women and children were loaded on the busses and taken through Sinjar to Mosul.
In Mosul, Heva got separated from her 2 sons. They were taken to the nearby ISIS training camp. Heva and her 2 daughters, 10-year old Nadia and 3-year old Samia, were put up for an auction. When her daughters got bought by a Saudi fighter, Heva begged him on her knees to take her as well, because she did not want to become separated from them. The fighter, whose name was Abu Muhammad, agreed to buy her too. He took them to his house and raped Heva and Nadia on the same evening. Soon they figured out, their owner´s favorite pastime was torturing them. He kept coming up with the most bizarre and horrifying sexual whims, and when they refused to fulfill them, he tied them to their beds and kept electroshocking their genitals until they stopped resisting. Nadia could not bear this kind of treatment and hung herself with her scarf. Grief-stricken Heva and Samia were sold a week later.
During the next month, they changed owners at a rapid pace, until they ended up with a Syrian fighter named Abu Salim. He forced Heva to convert to Islam. Heva had to wear a niq?b and pray 5 times a day. Besides, Heva and Samia, Abu Salim had 2 other Yazidi girls staying with him: 17-year old Sabrin and 19-year old Pervin. They were in contact with Pervin´s father who was at the refugee camp and tried to help them escape. He managed to contact a smuggler, who specialized in rescuing Yazidi girls, and who promised to help. They had to keep the smuggler posted about each move that Abu Salim made. When their smuggler figured out, that each Wednesday he went out around noon and did not come back before 3, they started waiting for their next opportunity. When it came, their rescuers staked near the house until Abu Salim left and then broke down the door and took their requests to the safety.
22.214.171.124.9The Story of SaraSara is an 18-year old Yazidi girl from Kocho whose life dream was to become a teacher. She used to spend a few hours each day tutoring the kids in her neighborhood. Moreover, she continued to do so, even while her village was under the siege.
On the day when ISIS made their move, all of the residents were asked to gather to the central plaza. Militants swiftly separated all the women and children from the men and took them to the second floor of the local school. About 15 minutes later trucks started pulling up in front of the building and fighters started to fill them up by putting 30-35 men in each. When a truck got full, it drove off to the east. A bit later the women and children heard gunshots. Now some militants came to them and started collecting their money, jewelry, and phones. Sara tried to hold on to her phone as long as possible. She used a pencil that she found on the floor and wrote down all of the numbers that she had on her phone, into her scarf. Soon they were taken outside again and loaded on the busses.
Sara was taken to Mosul. She got registered and photographed in a courthouse and then taken into a small house near the river. She stayed there for 2 days. Then a fighter came after her and put her into a car and told her that she would be taken to her new owner. Sara was bought by a Jordanian fighter named Abu Zaid. He introduced Sara to his wife and son and told her, that she will be the families housekeeper now. She will get her own room and a meal 2 times a day. In the first 4 days, nobody harmed Sara. She cooked, cleaned, did laundry and babysitting Abu Zaid´s 5-year-old son. On the 5th evening, Sara was woken from her sleep, by a noise. Somebody was in her room. It was Abu Zaid with one of his friends. They pinned her down on the bed, tied her up and raped her. From this day forward Sara was raped 2-3 times a day. She tried to win Abu Zaid´s wife over to her side, that she would help her to escape and it seemed to be working. One morning she called Sara to the back door and let her out. Abu Zaid´s wife told Sara to go 5 houses forward, and that there will be a family who would help her. Unknowingly Sara walked right into a trap. The house she was directed to belong to her owner´s friend who brought her back to him. Sara was taken to ISIS base and punished with 50 whiplashes. She was declared as a common property, which meant that every militant who wanted could use her. After 3 weeks, she was put up on an auction again.
During the next few months, Sara was sold, gifted and traded over 25 times. Finally, she ended up with a Saudi fighter called Abu Rashid. The man raped and tortured Sara every day. He liked to tie her up and violate her with different items such as a broomstick or a bottleneck. Once when he was again torturing her, the bottle broke, while it was still inside Sara. She g?t hurt pretty bad and had to be taken to the hospital. When Sara was released, the torture continued. She tried to commit suicide 3 times by cutting her veins, but she was saved each time. On one evening, when there had been no sign of Abu Rashid for the whole day, Sara broke a window leading to the garden and climbed out. She waited, hiding under some construction materials there were in the yard, until the nightfall and ran. She traveled for 5 days before she got help from a family on their way to Iraq, who agreed to take her with them. Sara got taken to a refugee camp near Duhok. During the medical checkup, she found out that she was HIV positive.
3 Reasons why ISIS Uses Sexual Violence against the Yazidi Women and Girls3.1The Religious DoctrinesGenocide is not aleatoric nor are its accounts monocausal, and although religious antagonism is rarely the motivation for undertaking the genocide, the religious worldviews, rhetoric and rituals are often enlisted in the planning and execution of it.
ISIS has openly declared on several occasions that they are enslaving women on the basis of their interpretation of the Sharia law. For instance in the article called “The revival of slavery before the hour, “which is published in ISIS official online magazine Dabiq they state:
“Unlike the Jews and Christians, there was no room for jizyah (non-Muslim residents) payment. Also, their women could be enslaved… After capture, the Yazidi women and children were then divided according to the Shar?’ah amongst the fighters of the Islamic State who participated in the Sinjar operations, after one fifth of the slaves were transferred to the Islamic State’s authority to be divided as khums fifth… Before Shayt?n Satan reveals his doubts to the weak-minded and weak hearted, one should remember that enslaving the families of the kuff?r infidels and taking their women as concubines is a firmly established aspect of the Shar?’ah…”
ISIS Research and Fatwa Department has also released a pamphlet in question and answer format about the female slaves in which they state that:
“Unbelieving women who were captured and brought into the abode of Islam are permissible to us, after the imam distributes them among us… If she is a virgin, he her master can have intercourse with her immediately after taking possession of her. However, if she isn’t, her uterus must be purified first… It is permissible to buy, sell, or give as a gift female captives and slaves, for they are merely property, which can be disposed of… It is permissible to have intercourse with the female slave who hasn’t reached puberty if she is fit for intercourse; however if she is not fit for intercourse, then it is enough to enjoy her without intercourse…”
The word “unbelieving” actually refers to all female non-Muslims. Although there have been reports of ISIS capturing women from other religious minorities as well, their main focus seems to be on the Yazidis.
According to Isac Kfir religious doctrines often determine, which is seen as „worthy and unworthy”, especially when these doctrines are based on the radical interpretation and strong conviction. In relation to Kfir´s idea, it can be argued that since ISIS deems the Yazidis as „devil worshiping infidels,” they are not „worthy” in the eyes of Allah, and thus is permissible to take the Yazidi women and girls as concubines and sexually violate them. Moreover, the women are seen as objects as the „spoils of war” and thus it is permissible to sell, trade and gift them.
ISIS fighters seem to celebrate every act of sexual violence as a virtue. It is quite common, that fighters pray both before and after the rape. According to ISIS interpretation, an act of rape draws its perpetrator closer to the God.
The religious justification to rape brought up in many cases which include sexual violence. A 34-year old Yazidi woman, who was held captive by ISIS has described a conversation with a rapist, who was violating another much younger female:
“The fighter kept coming and asking me, “Why does she smell so bad?” And I said, she has an infection on the inside, you need to take care of her. I said to him, “She’s just a little girl,” and he answered: “No. She’s not a little girl. She’s a slave. And she knows exactly how to have sex. And having sex with her pleases God.”
Another common answer, when Yazidi women or a girl asked why is ISIS treating them that way was:
“You’re a disbeliever, you’re an infidel, and what I am about to you is good for you and it’s good for Islam. What I am about to do to you, God will smile down on me for doing…”
Since ISIS seems to promote sexual violence as a way to be drawn closer to God, many fighters believe that they become “good Muslims” by committing the act of rape. Moreover, they are even proud to follow the teachings so strictly, since if they are “good Muslims” they will go to heaven after their death. By combining those 2 beliefs, ISIS is making their militants very motivated to fight, since they are not afraid of the death anymore.
Moreover, since brutal violent acts are partly founded on the belief that the military victories and predomination are signs of the God´s recognition, then by using sexual violence ISIS is sending out a signal, that the organization is a legitimate caliphate supported by the God.
Another aspect brought out in the favor of slavery is, that not using concubines and sex slaves can lead to “an increase in f?hishah adultery, because the Sharia alternative to marriage is not available, so man who cannot afford marriage to a free woman finds himself surrounded by temptation towards sin. So using a sexual violence against the Yazidi women also serves as an incentive for the fighters and keeps them away from sin.
Furthermore, since one of the aims of ISIS is to create a caliphate, which is religiously homogeneous, the raping of forcefully conceiving the Yazidi women, can be seen as a step towards that coal, since as described under the point 2.2, for a child to be a Yazidi, it has to have 2 Yazdi parents.
And as Barstow writes, using sexual violence can also “…alter regional balance” by “…establishing racial superiority of one group over another.” Since there exists a constant power struggle between Sunni and Shia Muslims in Iraq, and since ISIS is based on a Sunni branch of Islam, it can be argued, that by forcibly conceiving Yazidi women, they are producing a religious after growth for themselves.
Moreover, due to their interpretation of the apocalyptic hadith, “the slave girl will give birth to her master,” ISIS sees the sexual slavery of the Yazidis as the fulfillment of this prophecy and thus a sign of the Day of Judgement.
The Role of Profit GenerationAs demonstrated in the previous point, the ISIS rules about the sex slavery show their brutal objectification of women. Deemed “infidels” and “devil worshipers” by ISIS, Yazidi females are considered to be sabaya or “spoils of war” – a property of the caliphate, which can be traded, gifted and sold.
To officiate and regulate this process, ISIS has developed an advanced bureaucracy. Each female gets photographed and evaluated for her age, marital status, number of children and beauty. The scale of attractiveness goes in line with the age, where the youngest are preferred before the older, blonds over the girls with dark hair. The girls between ages 1-9 and virgins bring in the highest price, while oldest women are sold the cheapest. By the ruling of the Imam, each woman and girl will be either sentenced to be sold, put amongst khums or released against ransom.
Purchasing of the slaves takes place at the holding sites, souk sabaya and also via heavily encrypted messaging services such as Telegram and WhatsApp. The right for the first choice between the captives is given to Sheikhs, followed by Emirs, with fighters receiving the third preference. There are clear instructions of how many “properties” are allowed to buy per person. As an example, men from other countries than Turkey, Syria or a Gulf nation, can maximum buy three females. And since a Saudi purchaser needs to pay a higher prize for transport and food compared to other ISIS members, they get a discount in order to make the purchases profitable. To acquire a Yazidi slavegirl, the buyer has to pay a sum ranging from 200 USD to 1500 USD.
The sale of the sabaya is finalized with a notarized contract, drawn up by an ISIS-run court, which contains all the necessary information about the purchased slave, such as her name, age, registration number, virginity, civil status, number of children and price.
The souk sabaya is a great revenue source for the organization. In fact, human trafficking is, besides oil smuggling and hostage ransoms, one of the biggest income sources for ISIS.
The Role of Attracting and BondingAccording to the feminist theory, access to a woman´s body is often considered as a compensation of war. During the medieval times, one of the appeals for men to join armies was the opportunity to rape women, especially as the soldier’s salaries could be very low.
Also in the case of ISIS, the access to women is an appeal for males to join the terrorist organization.127 That especially for the ones who are coming from the states with conservative Islamic backgrounds, where casual sex is forbidden.128 Furthermore, since dowries in some Arab countries are really high, and that makes it nearly impossible for some men to pay, an opportunity to have a Yazidi wife can be really appealing.
Moreover, wartime sexual violence has been strongly linked to constructions of masculinity offered to soldiers and combatants. Military service functions as a rite of passage for many young men, through which they attain an adult male status and identity. In war, soldiers are constantly confronted with threats to their masculinity, and thus they seek other ways to prove it, like engaging in sexual violence. Sexual violence becomes a bonding agent amongst the perpetrators. Yuki Tanaka elaborates on that: “fierce combat forms strong and intimate links amongst soldiers and a gang-rape is both a by-product of this and a means by which such bonds are maintained in noncombat situations.”
The Humiliation and IntimidationIn conflict situations women are more than just “the spoils of war” or the passive victims of genocide, they are the material that war is waged on. Women are tactical targets of particular significance, because of their roles within the social structure and family. Women are singled out because of this central role.
In a conflict situation, physical and sexual abuse against the women is part of a male communication – displays of machoism are enacted through the violence against the women who are associated with the targeted males who are wanted to be “womanized” and humiliated. This kind of attack is especially salient in the cultures, where women are closely linked to their husbands and fathers, since men may interpret this kind of an attack as a direct insult to their manhood. In patriarchal communities, the insult on a woman, will not only humiliate her and her family but the whole community.
Furthermore, the children of rape and the mothers who bear them are stigmatized and socially punished within their own communities. The children are often rejected because they are seen as “the enemy” or just the painful reminders of the horrors the community went through. Those children represent the humiliation of the mother and of the culture itself.
Sometimes, like in the case of the Yazidis, the community will welcome the rape victims back, and with that make a step towards reconciliation. Although, many Yazidi women despite that, prefer to give away their children, who are born of rape or hide them, or even to hide the fact that they were raped since they believe that it will become a hindrance to them in their further life. During the interviews that the author made with the 9 genocide survivors, most of them expressed their worries about their fear of rejection. Yasmin was the one, who pointed out the common concern for all the taken Yazidi women and girls: “My cousin Yaner, who was taken, was not hurt at all. She managed to escape after the week she was taken. But nobody believes her story, because it cannot be possible, that someone escapes from “the devils” without getting used to.”
Acts of public sexual violence, or boasting about the accomplishments are often used as an intimidation tactic with regard to communities. The psychiatric consequences in witnessing a traumatic event can be very pronounced, sometimes even greater than in the primary victim.
Notably, one common feature that all the people share who have lived through a traumatic event is, the tendency to avoid reminders of the traumatic event, a.k.a. the places, things etc. they associate with their experience. The perpetrators of these acts, like ISIS, use this common knowledge to encourage flight from areas under interest. In this way, sexual violence can be used as “an instrument of forced exile” to drive the population away from the certain areas. Furthermore, the perpetrators of such violence may intentionally maximize the suffering in order to disperse the civilian population.
Many Yezidis have fled in fear of ISIL and in relation to this a Yezidi man who was a member of the Peshmerga forces said:
“Yes I am a Peshmerga, but I have a wife and children who need protection, so my priority had to be to take them to safety before Da’esh attacked the area. I could not leave my family to be taken hostage or slaughtered by Da’esh; so we fled.”
Similarly, another Yezidi man said:
“The fear of the crimes Da’esh could commit against the women and children of my family is much greater than the fear of being killed by Da’esh.”
Moreover, regarding the evidence of intimidation. There are many cases of suicide among the detained Yezidi women and girls. Many of the returnees have said, that while being in the captivity, they witnessed attempts of suicide to avoid forced conversions and sexual violence. The seriousness of this level of intimidation comes well out in the conversation which was held between the captive named Rashida and her brother. After she confessed that ISIS militants were forcing her to convert to Islam her brother told her that “… he would try to help her but if hecouldn’t,Ishould commitsuicidebecauseitwouldbe betterthanthe alternative”
Another witness said:
“We were 21 girls in one room, two of them were very young, 10-12 years. One day we were given clothes that looked like dance costumes and were told to bathe and wear those clothes. Jilan killed herself in the bathroom. She cut her wrists and hanged herself. She was very beautiful. I think she knew that she was going to be taken away by a man and that is why she killed herself.”
Alike, Wafa, aged 27, told to the Amnesty International that while she and her sister were held in Mosul by an ISIL fighter they tried to kill themselves:
“The man who was holding us said that either we marry him and his brother or he would sell us. At night we tried to strangle ourselves with our scarves. We tied the scarves around our necks and pulled away from each other as hard as we could, until I fainted. Two girls who were held with us woke up and stopped us and then stayed awake to watch over us. When they fell asleep at 5am we tried again, and again they woke up and stopped us. I could not speak for several days after that.”
During the interview the author conducted in March 2017, she heard similar stories from Yasmin, Farida, and Sara.
The Slow GenocideThe meaning of slow genocide could be best described by the concept of social death, which means a loss of social vitality, loss of social identity and additionally loss of meaning of one´s existence. Since our relationships are maintaining our social vitality and create our social identity when these relationships are lost the person loses his or hers social vitality and social identity, and hence “dies socially.”
As shown in the previous point, this kind of social exclusion might be particularly prominent for the survivors of genocidal sexual violence. They might be excluded from the community, and thus lose their relationships in 2 different levels, with those who died and with those who survived.
Due to this kind of isolation, the victims of sexual violence might be forced to give up on later sexual relations either because of stigma or their physiological trauma, and thus they will never reproduce. Coupled with the forcible removal of children, separation of males and females, killing of males, forced abortions, and impregnations, it will become a perfect start for a slow genocide.
Furthermore, transmission of HIV trough rapes may also be used as a strategy to slowly kill the desired group. Although, in the case of ISIS and the Yazidis, there have been a few know instances with regard to HIV infection, we cannot talk about a deliberate strategy for slow destruction.
Sexual Violence as a Constituent Act of Genocide4.1RapeOne of the most signi?cant developments in the jurisprudence of the modern international criminal law is the determination of the International Criminal Tribunal for Rwanda (ICTR), in the Akayesu case, that rape can constitute as an act of genocide. The importance of that conclusion lies in the fact that none of the leading instruments of international criminal law, mention rape speci?cally as an act of genocide. The reasoning that rape can be an act of genocide has not, however, agitated much disagreement, although there exists many controversial issues.
Notably, there is no statutory de?nition of rape in the international law. Even the international tribunals have a lack of unity, whilst offering an explanation to the term. As noted, Akayesu was the first case in which the judges of the ad hoc tribunal had to tackle the issue of rape and its missing definition. The Trial Chamber of ICTR defined rape as “a physical invasion of a sexual nature, committed on a person under circumstances which are coercive.” Throughout its discussion, the Trial Chamber remained focused on the violence of the circumstances insisting that “sexual violence is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact.”
The departure from this definition came with the Furundžija case, where the Trial Chamber proposed a definition of rape that depends on coitus:
.”..the following may be accepted as the objective elements of rape:
(i) the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator; (ii) by coercion or force or threat of force against the victim or a third person.”
The judges in the subsequent Kunarac case expanded Furundžija´s definition as regards the “other factors which would render an act of sexual penetration non-consensual or non-voluntary on the part of the victim,” besides the factors of “coercion or force or threat of force against the victim or a third person” as indicated in Furundžija .
Another problem that might be encountered whilst analyzing rape as an act of genocide, is the debate regarding the destruction in whole or in part. The question, that might come up is, whether there is a minimum number of the group members that need to be intended for the destruction or destroyed in order to label the act as a genocide. ICTR Trial Chamber II has found in the judgment of Kayishema and Ruzindana case that “‘in part’ requires the intention to destroy a considerable number of individuals who are part of the group.”
To figure out how an act of rape can be considered genocidal we first need to look Article 2 of the Genocide Convention, what provides the acts which constitute the material element of the genocide. While these acts are listed under subparagraphs (a) through of the provision, it can be clearly noticed that the act of rape is not explicitly mentioned as a crime of genocide.
The ICC Elements of Crimes (ICC EoC) mentions a list of examples to elaborate the meaning of some of the acts mentioned under the Article 2, providing that the meaning of some of the prohibited acts include rape. The ICC EoC also notes that the meaning of some of the remaining acts are not restricted to the examples given to elaborate especially the following subparagraphs: (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction… (e) forcibly transferring children of the group to another group. The elaboration on the meaning of each of the prohibited acts mentioned above implies the possibility of a broad interpretation of the term prohibited acts, thus showing a possibility that rape can be included as constituting either one or all of the prohibited acts.
One possibility could be to link rape with the act of killing. Article 6(a) of the ICC Statute, ICC IoC and prior case law does not specifically mention in which manner the act of killing needs to be carried out. Thus, it could be argued, that under such condition, a deliberate rape conducted with the intent of killing the members of the protected group, is constituted genocide. For example, if the members of the ISIS who have HIV would deliberately rape Yazidi women in order to infect them, this could be considered as an act of genocidal sexual violence. On the other hand, it could also be argued that it would not be genocidal because it is difficult to establish the causal link in-between the death of the victim and the act, because there can exist some other possibly intervening factors, that can cause the death.
The intent of killing could be also hard to prove in a situation where the rape which ends with death is committed by using bottles or sharp sticks. Moreover, severe injuries caused by rape can also be a reason for death, which could be hard to argue as genocidal.
The instances indicated above show that if a rape causes a death of the victim, and the culprit has a special intent, it is not completely impossible to link it to the prohibited act of killing stated in the Article II (a) of the genocide convention.
Genocidal sexual violence could also be linked to causing serious bodily or mental harm to the members of the group. As elaborated by the ICC EoC Article 6(b), it encapsulates but not limited to acts of “torture, rape, sexual violence, and inhumane and degrading treatment.
The ICTR Trial Chamber has in the Seromba case interpreted that serious bodily harm includes “nonfatal physical violence that causes serious injury to the external or internal organs.” It is noted that rape and sexual violence “certainly constitute infliction of serious bodily and mental harm on the victims and are even … one of the worst ways of inflicting harm on the victim as he or she suffers both bodily and mental harm.
The tribunal, while attempting to create a link between the prohibited acts of the crime of genocide and rape, tried to construe the Genocide Convention as embracing ‘prohibition against the torture, and then established that a rape is a form of torture. So from here, it could be elaborated, that “bodily and mental harm” in the Genocide Convention can refer to a harm caused by a bodily torture. Thus, since an act of rape, even more, if it is committed over a long period of time and in a really cruel manner which causes physical pain, could be argued to constitute a genocidal sexual violence.
In regards Article 2(c) of the Convention, an act of actual harm may not be required. Establishing the fact that the conditions were intentionally inflicted is sufficient.
The ICTR in the Akayesu case has stated that “by deliberately inflicting on the group conditions of life …, the perpetrator does not immediately kill the members of the group, but he ultimately seeks their physical destruction.”
In a patriarchal community which considers the victims of rape as no longer marriageable and social outcasts, rape could be a relevant instrument in achieving genocidal aims. For instance, if we consider the case of the Yazidis, where conversion into the religion is possible and the child has to have 2 Yazidi parents, to be considered as a Yazidi, a definite claim for rape as a genocide could be made.
Furthermore, since the Article 6(c) element 4 ICC EoC clarifies that the term conditions of life also “includes but not necessarily restricted to deliberate deprivation of resources indispensable for survival…or systematic expulsion from homes,” the perpetrators who seek a physical destruction of a group can use rape in order to create terror and make the group “flee the area…” With regard to ISIS, it can be said that since they have used terror or rape as a deliberate tactic to free their concurred areas from people, including the Yazidis, it could be possible to prosecute them for genocidal rape.
With regard to imposing measures intended to prevent births, it can be argued, that when a rape is used to reproduce one ethnic group at the same time with the intent to prevent the procreation of another ethnic group, the act would fall under measures of preventing births by forcibly controlling birth. That is because the Trial Chamber in the Akayesu case has mentioned that imposing measures to prevent births include “sexual mutilation, sterilization, forced birth control, separation of the sexes and prohibition of marriages.” The ICTR Trial Chamber has also found that “even when a woman refuses to give birth to a child as a result of the trauma of the violent rape, such refusal amounts to the measure intended to prevent birth.” Thus can be assumed that the measures intended to prevent births, can be both physical and mental.
In a society, as the Yazidis have, where premarital sex is condemned, the victims of rape have very little or no opportunity to get married. Moreover, if the raped woman is pregnant it can also become a hindrance on the future relationships. It could also happen, that because of the trauma of rape, a raped woman refuses to have any sexual relations at all. All of these situations can be “measures intended to prevent births.
The Prosecution of the ISIS Fighters for the Genocidal Sexual ViolenceBefore the author begins the discussion on the possibilities of prosecuting the members of ISIS for the genocidal sexual violence, there is a need to touch upon the possible challenges, which this kind of prosecution may face.
If the prosecution is chosen to be done on the national level, the first issue that may come up is the one of the jurisdiction, because not all of the states have the jurisdiction to try the crimes committed outside their territory. However, even if they do, most of the states would not allow trials in absentia if the alleged offender has not been arrested. Another obstacle might be the collection of evidence and hearing out victims and witnesses. It cannot be done without the full collaboration of Iraq and the Syrian Arab Republic (Syria). Moreover, the high costs that accompany holding the trials may also be a factor, that affects the judgment of some states.
The main issue on the international level seems to be the legal difficulty and the political reluctance to establish an ad hoc tribunal. Also the lack of the jurisdiction of the International Criminal Court (ICC; Court), and the unwillingness of the Security Council (SC) to refer the situation to the ICC.
5.1 The Prosecution of the ISIS Fighters on the National LevelThe victims of the gross violations of the human rights may expect two kinds of justice from their state: the restorative justice through the truth commissions, and the retributive justice through the criminal prosecutions in the national courts. The first case stems from the right to truth through the investigation and the identification of the perpetrators, while the second focuses on the right to justice and remedy.
5.1.1 The International Law on the Jurisdiction of StatesThere are 5 bases of jurisdiction that are recognized under international law: territory, protection, nationality of the offender active personality, nationality of the victim passive personality and universality.
The territorial principle, which is the most widely accepted basis for the jurisdiction, states that “an essential attribute of a state’s sovereignty is to have jurisdiction over all the persons and objects within its territory.” It is also differentiated between “pure” and “objective” territoriality. The first applies to the case when acts of offenses are commenced within the state´s territory, regardless of whether or not they were also consummated or concluded there. And the latter is applied to acts or offenses commenced outside the state’s territory, but completed within its territory or which are causing serious and harmful consequences to the social and economic order within its territory.
The principle of the universality means that the international community considers some offenses to be so flagrant, that they are subjected to the jurisdiction of all the states, irrespective of the l?cation ?f the crime and the nationality of the victim or the perpetrator.
The jurisdiction of the active nationality is based on the nationality of the defendant. Meaning that the state of the person against whom the pr?ceedings are taking place may exercise jurisdiction based ?n the nationality of the defendant.
The basis for the passive nationality principle is the nationality of the victim. That is to say that the victim´s state may assert his or her nationality as a basis for exercising the jurisdiction.
The last is the protective jurisdiction, which is permitting a state to exercise extraterritorial effect to legislation criminalizing that threaten the state’s national integrity and security or its vital economic interests. The raison d’être of this principle is that an offense may have severe effects in one state, but may otherwise go unpunished if the state where the act was actually committed does not itself consider it to be unlawful. The major weakness of this principle is that it might be subjected to abuse since each state is free to determine which crimes it sees as a threat to its security.
Also when choosing the jurisdiction over the genocidal sexual violence cases it must be taken into account the Article 6 of the Convention of the Prevention and Punishment of the Crime of Genocide (Genocide Convention), which states: “persons charged with gen?cide or any of the other acts enumerated in Article III shall be tried by a competent tribunal of the State in the territory of which the act was c?mmitted, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.”
5.1.2 The Truth CommissionsThe truth commissions first emerged in the early 1980s in a number of states plagued by the civil wars, as a compromise to acknowledge the past abuses without assigning individual criminal responsibility. Since then, following the example of the 1995 Truth and Reconciliation Commission of South Africa, these commissions have become a domestic measure to complement criminal justice, with the power to subpoena, question under oath, search and seizure, hold public hearings, and offer witness protection to encourage the witnesses and victims to come forward. Today there are more than 30 truth commissions worldwide, from which the most are located in Central and Latin America and sub-Saharan Africa. These commissions do not all share the same model, but they are mostly temporary and focusing on the past and pattern of the abuses with the official authorization from the state, in an attempt to assign appropriate redress to the victims, and pinpoint institutional responsibility to outline reforms and promote reconciliation.
The truth commissions can also be used as a restorative justice venue for women who have suffered sexual violence. The Gacaca procedures, which were established after the Rwandan genocide, can help to shed light on the benefits and shortcomings of this possibility. The Gacaca is a traditional grassroots justice system, what is led by a local judge with participation from the members of the community. It is entrusted with hearing lesser crime categories committed during the genocide, assign responsibilities, to reach the truth, and reconcile. Until 2008 their jurisdiction did not include hearing crimes of sexual violence. They were considered after the genocide as crimes of the highest category, which should be prosecuted by the national courts or the ICTR. The crime had to be filed through a direct allegation presented by the victim of the sexual violence to the judge, then who secretly transferred the cases involving category one offenders to the tribunals of First Instance for the trial.
In one hand, the truth commissions have their advantages, such as the central role played by the victims in the proceedings, the swiftness of their procedures, and their attractiveness to the perpetrators, who are encouraged to confess and provide information about the acts committed during the conflict. However, on the other hand, the truth commissions also have some serious flaws, and thus they may not be an appropriate venue to deal with the perpetrators of serious international crimes, specifically those that involve genocidal sexual violence. First, to achieve justice in these cases, the commission should have formal and professional judges, bound by evidentiary rules, who are committed to the right of the fair trial, the right to a lawyer and cross-examination, and the presumption of innocence until proven guilty. In small communities, where the judges know the perpetrator and the victims, it might be hard to fulfill these requirements. Secondly, the commissions that rest on the public hearings tend to violate the victim´s right to privacy and amplify the fear of rejection, stigmatization, and reprisal. Finally, the most severe consequence of the truth commissions might be impunity. Perpetrators seldom admit to all the crimes that they have committed, or disclose all the facts surrounding them. For instance, if the perpetrator leaves out from their testimony, that he or she has committed genocidal sexual violence, he or she can avoid harsher sentences under category one crimes. That can mean, that many of the perpetrators might go free.
5.1.3 The Domestic Courts in Iraq and SyriaThe domestic courts can be considered as “the backbone of the global criminal justice system.” According to the most universally accepted principle in the national law for the criminal jurisdiction, the territoriality principle, a suspect is tried in the same state as that in which the crime occurred, even if she or he or the victim is a national of another state. Thus, the domestic courts in Iraq and Syria could feasibly prosecute the ISIS militants, since the crime of genocidal sexual violence occurs on their territories. However, there are several challenges regarding this path of prosecution.
Firstly, one of the possible problems arises because the states, whose nationals are members of ISIS have to investigate their own citizens to determine if they are responsible for the crimes, they are accused of. The situati?n is made harder by the fact, that the conflict is ongoing, and since many of the accused are still in the ISIS occupied territories, it makes even basic judicial functions, such as execution of warrants, impossible.
Furthermore, the question can be posed whether the Iraqi and Syrian domestic courts are qualified to conduct such criminal proceedings? Since the genocidal sexual violence perpetrated by ISIS members occurred on both of their territories, it makes it uncertain, whether either state can adequately exercise the territorial jurisdiction. Based on the assumption that the 2 states would come to an agreement, about which state would conduct the trials, there are still some concerns that arise. Namely, neither Syrian nor Iraqi court system cannot probably handle cases of this volume and complexity. Moreover, the ethnic and religious composition of the courts would most likely threaten the integrity of any domestic pane. Furthermore, the international community will probably doubt in the ability of Iraqi and Syrian national courts to conduct meaningful adjudications, since the Assad regime itself has been accused of violating of hum?n rights, war crimes and crimes against the humanity.
Therefore, the author of this thesis is on the opinion that the ongoing conflict and the political unsteadiness undercuts any statement that the Assad regime has the ability to try ISIS members to the standard that would satisfy the international community. The ability of Iraq to officiate domestic trials is also doubtful because its authorities have established a reputation for widespread racketeering and corruption.
5.1.4 The Foreign National CourtsThe foreign courts could hypothetically also be one possibility to try ISIS members for their crimes. However, just like the previous option, this too has its flaw. One of the obstacles for choosing this path could be that the courts might be limited in their jurisdiction over crimes that happened outside their territory. Some states only allow their courts to try on such cases where the international law is also part of the domestic law, but some states permit their courts to hear international crimes as violations of international law based on the universality principle. If the court has to hear a case that involves international law, then it draws on treaties, customary international law, and other general principles, to decide the applicable law.
Notably, some national prosecutors have already shown their interest in prosecuting their citizens or residents who have joined ISIS. Unfortunately, so far the main ground for these prosecutions has been the fact that these persons joined a foreign terrorist group, rather than that they committed international core crimes, such as genocidal sexual violence. Although, there are a few exceptions. For instance, Oberlandesgericht Frankfurt am Main has convicted a returned foreign fighter of the war crime of treating a person in an inhuman manner. Also, the Goteborg District Court in Sweden has sentenced two men for life in connection to terror crimes committed in Syria. These prosecutors were using their domestic criminal law, which is based on the principle of universal jurisdiction to convict the returned foreign fighters. Since unfortunately, nearly all states demand, that the accused will be present on the territory of the state to start such a prosecution, this greatly restricts the possibility of the universal jurisdiction.
The primary challenge for the persecution under universal principle may become the possibility of gathering the evidence of the crimes committed outside the national state. Since the local prosecutors have no direct access to the jurisdictions the crimes occurred, they might account for real difficulties if the need to locate or contact witnesses or victims.
Likewise, the courts could apply the active personality principle to prosecute their nationals for their involvement in the crimes committed in Iraq and Syria. For example, the United Kingdom, France, and Belgium have already begun to use anti-terrorism legislation to apply penal sanctions to those traveling to Syria to take part in the conflict. As more foreign nationals come home from Syria, the number of prosecutions under the active nationality principle is set to increase and could act as a deterrent for others thinking about joining the fight.
Another option for the prosecution would be passive personality principle, according to which the home country of the ISIS victim has a right to prosecute the perpetrators, regardless of their nationality, which is superior to the rights of the other countries. Although this principle, on the case of the Yazidis, would give prosecution rights to Iraqi courts, it would also provide an additional basis for prosecuting perpetrators and broaden the scope of those who can be targeted. That is because the legitimacy of this principle is more widely recognized in the cases where the conduct is seen to constitute a serious crime against states national as such.
The last possibility to obtain the jurisdiction for the prosecution could be the protective principle, which covers cases in which the state acts against those abroad who endanger its security or national interest. Since the legitimacy of this principle has been contested multiple times, and it would be nearly possible to apply it for convicting a perpetrator of genocidal sexual violence, the author does not discuss this option any further.
5.2 The Prosecution of the ISIS Fighters on the International Level5.2.1 The International Criminal CourtMuch ink has been spilled on the pr?spect of bringing the members of ISIS to trial before the chambers of the ICC. Pursuant to the Article 17(1)(d) of the Rome Statute, there is no ambiguity that the atrocities committed by ISIS taken in its totality are grave enough per se to warrant the Court´s scrutiny. Even the prosecutor Bensouda has stated that the Office of the Prosecutor (Office) would consider options of the Court´s involvement. However, taking ISIS to the ICC poses significant difficulties, and thus it deserves careful consideration.
126.96.36.199 The Three Strategies for ProsecutionThe critical question in here is whether the ICC has, or can have, jurisdiction to prosecute the crimes committed in Syria and Iraq. According to the Articles 12, 13 and 14 of the Rome Statute (Statute), the ICC has jurisdiction over the crimes that are committed on the territory of a state party and over the crimes that are committed by the nationals of the parties of the Rome Statute. However, neither the Syrian Arab Republic nor the state of Iraq are the parties to the Statute, the treaty that established ICC, nor are there any indications that they will ratify it or sign a declaration accepting the Court’s jurisdiction. Therefore, it is impossible for the ICC to exercise its jurisdiction over ISIS fighters in Syria and Iraq on the basis of territoriality. The jurisdictional limitations of the Court restraints significantly its ability to prosecute persons committing violations in these states. There have been repetitive suggestions that Syria and Iraq should join the ICC. Their joining would give the ICC direct jurisdiction over the acts committed on those territories, but neither the Assad regime nor the Iraqi government is willing to accept the Court´s jurisdiction. Furthermore, even if those countries would become states parties to the Rome Statute, it would not solve the problem, as the Statute does not allow prosecution retroactively. With that option of the table, how can ISIS militants be sued? The author will now investigate the 3 prosecutorial approaches to establish the ICC´s jurisdiction over members of the ISIS.
188.8.131.52.1 Article 13(b) of the Rome StatuteThe first prosecution strategy, which is supported by the ICC chief prosecutor Fatou Bensouda, is the approach of the Article 13(b) of the Statute. Bensouda has stated that she will only open a preliminary examination regarding the crimes committed by ISIS, if the Syrian Arab Republic, Iraq or the SC provide the jurisdiction to the Court. In the light of the Article 13(b) of the Statute, the ICC could theoretically acquire jurisdiction over the crimes committed on Syrian and Iraqi soil through the SC referral. The Article 13(b) provides that the ICC may exercise its jurisdiction if “a situation … is referred to the Pr?secutor by the SC acting under Chapter VII of the Charter of the United Nations (Charter). Moreover, this kind of a referral by the SC would break new ground, since its main objective would be to tackle crimes of an armed group without ties to any specific state. This option was vigorously discussed during the SC meeting when over a dozen states parties requested for the referral. Notably, there seem to be some misgivings about what exactly should be referred to the ICC – is it the situation in the Syrian Arab Republic, the situation in Iraq or the situation in both states.
As previously stated, since the ICC has no inherent territorial jurisdiction, it has to rely on the SC referral. Such a referral was made for the first time in the case of Darfur in March 2005. In May 2014, France as a permanent SC member proposed a draft resolution to refer the situation in the Syrian Arab Republic to the ICC. The res?lution was vet?ed by the Russian Federation and China. Russia after expressed the opinion, that such a referral to the ICC would be “ill-timed and counterproductive.”
In the scenario, where that resolution would have gone through, it would have given the ICC the mandate to investigate the genocidal sexual violence committed by ISIS during the course of the conflict in Syria. Notably, such a referral would have granted the ICC also the jurisdiction over the crimes that are committed by the Assad regime.
Although this type of referral has been attempted for many times now, it seems that it is not an option, since China and the Russian Federation who are 2 permanent members of the SC will continue using their veto powers to block it.
The controversial but obvious alternative to the territorial referral would be to limit the subject matter of the referral exclusively to the acts of ISIS. From there can be posed a question ?f whether the referral could point to a distinct group as opposed to a series of acts or crimes, thus excluding the persons who are not the members of the group, but who have potentially committed crimes, from potential prosecution? The answer to it is that the Article 13(b) of the Statute only allows the SC to refer situations to the Court, instead of cases of individuals. Neither the Statute nor the ICC Rules of Procedure and Evidence describe what could be understood as a “situation.” In its jurisprudence, the ICC has specified that a “situation” is defined by “territorial,” temporal and possibly personal parameters. Thus, if a referral is not linked to any territory, the ICC may decide that it does n?t fit within the definition of a situation. Professor of International Criminal Law William Schabas has stated in connection with ISIS referral to the ICC that “there´s n? rule that says it´s imp?ssible” to refer a gr?up to the Court even if it operat?s in c?untries that are not members. It would be first for the prosecutor and then the judges to decide if ISIS referral was legitimate. If the Court did get involved, it could, if it saw fit, then interpret the referral in its own way, expanding it to cover Syria and Iraq. The ICC, however, has explicitly rejected a group-based definition of the “situation” in Uganda: the prosecutor determined that the referral of the “situation” concerning the Lord´s Resistance Army should be broadened to a referral concerning the “situation” in Uganda.
184.108.40.206.2 Article 13(c) of the Rome StatuteIn the absence of the SC referral, the prosecutor can also proprio motu initiate an investigation under the Article 13(c) of the Statute concerning the crimes allegedly committed by the nationals of the states parties When the ICC´s jurisdiction is acquired through the proprio motu power of the prosecutor, the demarcation of the situation is founded on personal jurisdiction. The situation which is under the investigation is strictly demarcated exclusively by the future proceedings. The Office of the Prosecutor has already proceeded on the basis of the active personality principle in a different setting the situation in Iraq. In this preliminary examination, the Office looked at the crimes committed by the British forces. Notably, this situation is much different from the one of ISIS, since the violent patterns of ISIS are much more complex and their organization is more diverse and decentralized. However, even if somehow this kind of referral, regarding ISIS, would go through, it would face another obstacle. The ICC would ?nly have jurisdiction over the nationals of the states parties to the Statute and not over the Iraqi and Syrian fighters, who constitute the most significant part of ISIS.
220.127.116.11.3 Article 12(2) of the Rome StatuteThere are 2 aspects to the Article 12(2) of the Statute: on the one hand there is the strategy of objective territorial jurisdiction Article 12(2)(a), and on the other hand there is the approach of the active personal jurisdiction Article 12(2)(b). The author will start the discussion with the latter option.
Employing Article 12(2)(b) of the Statute would allow ICC to try the nationals of the states parties to the Statute e.g., the foreign fighters of ISIS. At first sight, this solution seems promising, since a sizable amount of the foreign fighters in ISIS originate from the states parties. The significance of such an investigation and prosecutions will be diminished by the fact that the leadership of ISIS, who are predominantly Iraqi and Syrian, remain outside of the scope of the ICC. This would undermine the International criminal justice system´s goal of the Court´s prosecutor to prosecute “those most responsible” for the commission of the atrocities. That does not mean that the foreign fighters, even those who are mid-ranking, could not still bear the highest responsibility for the crimes, but if the focus is put on them alone, it is possible that the most responsible ones amongst them are not the most responsible ones for the crimes as such.
It is expected that the cases that are brought against the nationals of the states parties will be inadmissible in the light of Article 17 of the Statute, since the parties tend to carry out investigations regarding the crimes their nationals have committed abroad, thereby precluding the exercise of the Court’s jurisdiction. These investigations would be subjected to the principle of complementary, which means that the ICC would only acquire the jurisdiction if the nationality of the state were unwilling or unable to prosecute the ISIS members itself.
As previously mentioned another feasible option for the ICC to acquire jurisdiction of the crimes of ISIS could be the approach of objective territorial jurisdiction, based on the Article 12(2)(a) of the Statute. According to this provision, the Court can acquire jurisdiction to try the crime, which has occurred within the state´s territory where its serious and harmful consequences take place. Potentially this kind of an approach may avoid the difficulties of the previously discussed possibilities of prosecution. Article 12(2)(a) of the Statute provides for the jurisdiction where the conduct in question occurred on the territory of a states party, irrespective of whether the accused belongs to a non-state party. The broad interpretation of this article, which its wording does not preclude, could include the objective territoriality principle, which would indicate that the ICC is capable of prosecuting crimes whose consequences take place within the territory of a states party, even when the criminal conduct occurred abroad.
The objective territory approach could play a crucial role in the prosecution of the leadership of ISIS. The relevance of this principle lies in the attacks that took place in the territories of the states parties, such as bombings in France and London. In the light of the of the Article 12(2)(a) of the Statute, the states parties could refer a situation encapsulating an attack in their territories, deemed both constituent elements or effects of broader criminal acts elsewhere, to the ICC pursuant to Article 14(1) of the Statute. In these circumstances, the ISIS leadership could be prosecuted for facilitating, ordering or contributing to crimes against the humanity and murder.
However, the main question is – if the ICC is the best mechanism for prosecuting the crimes committed by the ISIS? Some authors argue that the prosecution of ISIS by the ICC would be a step in the right direction. While others, like Professor Kevin John Heller, have taken the stance that the international community has to st?p assuming that the ICC is always the best venue for prosecuting the international crimes since it is a weak Court, which has more failures than successes on its ledger.
5.2.2 Alternate mechanisms for prosecution18.104.22.168 Ad hoc tribunalConsidering the difficulties of bringing the members of ISIS to trial before the ICC, and the critiques to that option, it might be better to assign the prosecution to an alternative mechanism. Setting up an ad hoc tribunal is seen as a pragmatic alternative to the ICC since the Court´s intervention would be resource and time-intensive. This possibility is also fav?red by Carla Del P?nte, the former chief prosecutor of the International Criminal Tribunal f?r the former Yugoslavia (ICTY), since it could be based near the region, be faster and facilitate access to the witnesses, documentation, etc.
The ad hoc international criminal tribunals are established for a particular situation and habitually have a jurisdiction that is limited in time. There are 2 types of tribunals: stand-alone tribunals internationalized tribunals, like ICRY and ICTR and hybrid tribunals as the Special Court for Sierra Leone. The internationalized tribunals are created with the SC resolution. They are located outside the countries where the crimes took place, and the judges, staff, and official that make up the court are usually international experts, who do not come from that country either. The hybrid tribunals have typically been established through an agreement with the United Nations (UN). They include both international and domestic judges and are based in the countries where the crimes were committed.
22.214.171.124.1 Internationalized tribunalsSince the situation, surrounding ISIS fulfills the requirement for the SC to act pursuant Chapter VII of the UN Charter, the SC could, therefore, establish an International Criminal Tribunal for Iraq and the Syrian Arab Republic, to prosecute the crimes against the humanity, war crimes and genocide committed by ISIS. Since Iraq and Syria are both members of the UN, they w?uld be required to co?perate and abide by the decisions of the tribunal.
An additional benefit for setting up an ad hoc tribunal for ISIS is that the tribunal may determine its own jurisdiction, which means, that it can have broader jurisdiction, which is not limited to only the core international crimes. Furthermore, an ad hoc tribunal for investigating the crimes of ISIS could be situated on a territory, which could facilitate suitable access to the documentation and witnesses. That would make the process of prosecution much quicker and smoother. Moreover, since the work of an ad hoc tribunal would be limited in time, jurisdiction and scope, it could be a more appealing option to the Syrian regime, as well as to China and the Russian Federation. Also, another advantage is that a single ad hoc tribunal could deal with crimes committed on both countries just as ICTY can hear cases from Bosnia, Herzegovina, and Kosovo. To ease the workload, which comes with a possibility to potentially try enormous quantity of ISIS members, the SC could also draft a statute to allow the ad hoc tribunal focus on the prosecution of the ISIS leadership, and allow the domestic courts to try the lower ranking members.
Nonetheless, setting up this kind of ad hoc tribunal has also some serious obstacles. Firstly, creating a new temporary tribunal from scratch would be resource-intensive. Defining a complete legal framework, recruiting and training the personnel and finding the facilities could potentially be more costly and time-consuming, than if a permanent court takes up the same task. Moreover, another drawback of the ad hoc tribunals is that they are usually set up after the conflicts have ended, since the challenges that they may face investigating and prosecuting perpetrators during the conflict. Since the tribunals are reactionary, the cannot successfully serve a purpose of discouraging the ongoing or future crimes. Thus, the actual performance of an ad hoc court for Syria and Iraq may depend on the ending of the conflict. Furtherm?re, keeping in mind the current political situation it could be quite unrealistic to hope that Syria and Iraq would support the establishment of such a tribunal, let alone fully respect its independence.
126.96.36.199.2 Hybrid regional courtsThe international community has pretty much discluded the idea of setting up a hybrid regional tribunal for investigating and prosecuting the crimes of ISIS But setting up such a court, might be a viable alternative. Because these courts combine international and domestic law, procedure and staff, it can be said that they have the legitimacy of a domestic court and the objectivity of an international court. Hybrid regional courts may even be set up within the existing domestic court structure and involvement of a state, thereby precluding the need for the creation of an entirely new court from scratch. Another advantage of a hybrid court is the fact that the idea of such a court is already familiar to Iraq, because of the Iraqi High Tribunal´s conviction of Saddam Hussein. Unfortunately, a more profound examination of this tribunal shows, that the proceedings were highly problematical, which means that the Iraqi courts are not experienced and skilled enough to conduct international criminal trials, and there would likely be deep political overtones connected with any domestic proceedings.
Another major downside is that the set-up of such a court requires the consent of the territorial state, in casu, the Syrian Arab Republic, and Iraq, or of the SC. As discussed before, that kind of consent may not be forthcoming.
ConclusionAccording to ISIS´s ideology, it is permissible while waging a jihad against the kuffar, to capture their women as “spoils of war,” and keep them as concubines. Due to their interpretation of the apocalyptic hadith, “the slave girl will give birth to her master,” ISIS sees the sexual slavery of the Yazidis as the fulfillment of this prophecy and thus a sign of the Day of Judgement. By tainting the honor of the Yazidi women, ISIS sends a “man-to-man” message to the whole Yazidi community, about its inability to protect their wives, mothers, and sisters. In this manner, the sexual violence serves as a tactic to humiliate and intimidate the entire Yazidi minority. A promise of a sex slave serves as an incentive for the new recruits, which pulls them into the fight for a hyper-masculine Islamic State, where each sexual assault is celebrated as ib?dah, which draws its perpetrator closer to Allah. The income from the sex trafficking makes a significant contribution to the continuation of the jihad, whereas rape-resulted pregnancies help to produce the next generation of the Islamic fighters. Due to its physical and psychosocial consequences for the community and the individuals, likewise, ISIS uses sexual violence also as a tool to further their genocidal aims. Sexual trauma, in particular, may lead to an aversion to sexuality in both survivors and witnesses of rape. Because aversion to sexuality is not a desired characteristic for wives in most cultures, this may place survivors at risk for rejection by current or prospective spouses. Decreased interest and participation in sex also reduces the likelihood that a woman will give birth to children within her community.
As for the investigation of the legal categorization of the Islamic State, it can be concluded, that they can be considered as a de facto regime. The organization possesses a limited degree of international legal personality. They are bound by ICL, including IHL and to some extent by obligations, such as the prohibition of committing the core crimes, deriving from international human rights.
The main reason why the IS cannot be considered a state, although it does come close meeting some criteria set forth in the Montevideo convention, is its lack of legitimacy in the eyes of the international community.
Furthermore, the analysis showed that due to the complex nature of this organization it is a difficult task to find a suitable legal path to prosecute ISIS fighters for the genocidal sexual violence they perpetrated against the Yazidis since the IS does not fit neatly within the scope of any particular court system.
On the international level, there are 3 possible venues for the prosecution: the ICC or an ad hoc or a hybrid international criminal tribunal established for Syria and Iraq. All of those 3 options have their advantages and disadvantages.
The main obstacle that prevents the prosecution of ISIS fighters before the ICC is the fact that the crimes against the Yazidis are committed in Syria and Iraq, none of which is a state party to the Rome Statute. They could, in theory, accept limited Court´s jurisdiction with the respect to the committed crimes under Article 12(3) of the Statute. However, the likelihood that either of those states would sign a declaration accepting the jurisdiction of the ICC, is almost zero. Another possibility for the prosecution would be for the SC to refer the situation to the ICC. As the several attempts have shown, this option will be blocked by the veto of China and the Russian Federation. Prosecution before the Court could happen also through an investigation initiated by the Prosecutor of the ICC under the Article 15(1) of the ICC Statute. Since Iraq and Syria are not parties to the Statute, the prosecutor would not have territorial jurisdiction which is based on Article 12(2)(a) of the Statute, to start such an investigation. However, the ICC could start an investigation over the ISIS members who are nationals of the states parties, under the Article 12(2)(b) of the Statute. According to the policy of the Court, these perpetrators should be the high-ranking members of the ISIS, since the Court prosecutes only the perpetrators who bear the greatest responsibility. Thus, most of them are either in Syrian ore Iraqi nationality, this option will be quite limited. However, despite the possible criticism from the international community, the Court should try the lower-ranking ISIS leaders who are nationals of a state party to the Statue. This kind of prosecution should be pursued in order to set an example, that the international community will do everything its power to stop such widespread atrocities, even if they can do that only with a limited impact. Furthermore, the prosecution of the low-ranking ISIS members, who are usually the direct perpetrators of the committed sexual violence, could be of importance to the victims.
Furthermore, the crime of genocidal sexual violence committed by the ISIS against the Yazidis, could be possibly prosecuted in an ad hoc international criminal tribunal, which is modelled after the ICTR or the ICTY, since the situation surrounding the terrorist organization satisfies the requirements for the SC to establish an ad hoc tribunal under Chapter VII. Since the UN has claimed the ISIS to be a threat to the international peace and security, the situation also meets the requirement of Article 39 of the Charter. If the SC manages to establish an ad hoc International Criminal Tribunal for Syria and Iraq, these states would have to cooperate and abide by the decisions of this tribunal, since they are the members of UN. But also, here, the permanent members of the SC, Russia, and China, could form an obstacle with their veto right. Moreover, the effective functioning of this kind of a tribunal would depend on the ending of the conflict, since it is difficult to investigate and prosecute perpetrators while it is still ongoing. Also, the establishment of an ad hoc tribunal can be very costly and take a very long time. This kind of delay in the creation of the tribunal may stop any potential deterrent effect.
Another possible solution for the prosecution could come in the form of a hybrid or a mixed court. However, in order to establish a hybrid tribunal Iraq and Syria, or the SC would have to give their consent. In the light of the current political situation, this would be very unlikely. Moreover, this path of prosecution would also take a lot of time, since finding an agreement between the UN and the territorial state would require long negotiations. The UN General Assembly (UN GA) could, in fact, sign a treaty with a neighboring country of Iraq and Syria, which is willing to exercise its universal jurisdiction over the crimes committed in there. However, besides huge political consequences, this option can also become very lengthy and costly. Furthermore, a hybrid tribunal might also not be independent and impartial, since it might be exposed to undue influencing.
On the national level, one option for the prosecution could be the truth commission, which serves also as restorative justice venue. But since it is composed of the local judges, it can be affected by influencing. Furthermore, the publicity of trials can also elevate the stigmatization of the sexual violence victims.
The domestic courts in Syria and Iraq are not the best option for the prosecution either. They cannot handle the huge workload, they are easily influenced and they avoid the prosecution of the core crimes.
Although there have been some trials of the ISIS members in the foreign national courts, the accused are mostly the citizens of the state who is making the judgment. Trying a foreign national for the crimes they have committed in Iraq and Syria, would be a quite difficult task.
BibliographyBooks and Book ChaptersAç?ky?ld?z, Birgül, The Yezidis: The History of a Community, Culture and Religion, 2010
Aikman, David, The Mirage of Peace: Understand The Never-Ending Conflict in the Middle East, 2011. Kindle version
Atwan, Abdel B, Islamic State: The Digital Caliphate, 2015
Fry, Michael Graham, Erik Goldstein and Richard Langhorne, Guide to International Relations and Diplomacy, 2002
Hall, Benjamin, Inside ISIS: The Brutal Rise of a Terrorist Army, 2015
Cockburn, Patrick, The Rise of Islamic State: ISIS and the New Sunni Revolution, 2015
McCants, William, The ISIS Apocalypse: The History, Strategy, and Doomsday Vision of the Islamic State, 2016
Rajan, V.G. Julie, Women, Violence, and the Islamic State: Resurrecting the Caliphate trough Femicide in Iraq and Syria, in: Sanja Bahun and V.G. Julie Rajan (eds.), Violence and Gender in the Globalized World: The Intimate and the Extimate, 2nd edition, 2016, 45-93.
Stern, Jessica and J. M. Berger, ISIS: The State of Terror, 19-20
Yin, Robert K, Case Study Research Design and Methods, 5th edition, 2014
Zoppellaro, Simone, Il genocidio degli yazidi. L’Isis e la persecuzione degli «adoratori del diavolo», 2017
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Fuccaro, Nelida, „Ethnicity, State Formation, and Conscription in Postcolonial Iraq: The Case of the Yazidi Kurds of Jabal Sinjar,” International Journal of Middle East Studies, vol. 29, no. 4 (1997), 559-580.
Mullaney, Arielle, “Wiping out an Entire Religion: How ISIS Will Inevitably Eliminate an Ancient Culture Unless the United States Employs Military and Diplomatic Intervention,” Suffolk Transnational Law Review, vol. 39, no. 1 (2016), 107-144
Conventions, Charters, Statutes and ProtocolsJudgments, Decisions and Advisory OpinionsResolutionsReportsUnited Nations, United Nations Human Rights Council, Report of the Independent International Commission of Inquiry on the Syrian Arab Republic: “They came to destroy”: ISIS Crimes Against the Yazidis, A/HRC/32/CRP.2, 16. June 2016
Yazda, „A Report from the Yazda Documentation Project on Mass Graves of Yazidis Killed by the Islamic State Organization or Local Affiliates On or After August 3 2014,” Yazda, 28 Januar 2016
BlogsAl-Tamimi, Aymenn Jawad, „Unseen Islamic State Pamphlet on Slavery,” Aymenn Jawad Al-Tamimi’s Blog, 29 December 2015 (available at http://www.aymennjawad.org/2015/12/unseen-islamic-state-pamphlet-on-slavery).
News ArticlesAsher-Schapiro, Avi, „Who Are the Yazidis, the Ancient, Persecuted Religious Minority Struggling to Survive in Iraq?” National Geographic News, 11 August 2014 (available at https://news.nationalgeographic.com/news/2014/08/140809-iraq-yazidis-minority-isil-religion-history/).
Dearden, Lizzie, „Yazidi sex slaves undergoing surgery to ‘restore virginity’ after being raped by Isis militants,” The Independent, 27 April 2015 (available at http://www.independent.co.uk/news/world/middle-east/yazidi-sex-slaves-undergoing-surgery-to-restore-virginity-after-being-raped-by-isis-militants-10207352.html).
Callimachi, Rukmini, „ISIS Enshrines a Theology of Rape,” New York Times, 13 August 2015 (available at https://www.nytimes.com/2015/08/14/world/middleeast/isis-enshrines-a-theology-of-rape.html)
Coghlan, Tom, „Jihadists buy and sell Yazidi girls for sex on WhatsApp,” The Times, 7 July 2016 (available at https://www.thetimes.co.uk/article/jihadists-buy-and-sell-yazidi-girls-for-sex-on-whatsapp-7207zrg7j)
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WebsitesMinority rights group international, “Iraq – Yezidis,” Minority rights group International (available at http://minorityrights.org/minorities/yezidis/).
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Appendix I: ISIS Q&A Pamphlet on Female Slaves (2014)Compiled by the Research and Fatwa Department of the Islamic State
“Question 1: What is al-sabi?
Al-Sabi is a woman from among ahl al-harb the people of war who has been captured by Muslims.
Question 2: What makes al-sabi permissible?
What makes al-sabi permissible i.e., what makes it permissible to take such a woman captive is her unbelief. Unbelieving women who were captured and brought into the abode of Islam are permissible to us, after the imam distributes them among us.
Question 3: Can all unbelieving women be taken captive?
There is no dispute among the scholars that it is permissible to capture unbelieving women who are characterized by original unbelief kufr asli, such as the kitabiyat women from among the People of the Book, i.e., Jews and Christians and polytheists. However, the scholars are disputed over the issue of capturing apostate women. The consensus leans towards forbidding it, though some people of knowledge think it permissible. We ISIS lean towards accepting the consensus…
Question 4: Is it permissible to have intercourse with a female captive?
It is permissible to have sexual intercourse with the female captive. Allah the almighty said: “Successful are the believers who guard their chastity, except from their wives or (the captives and slaves) that their right hands possess, for then they are free from blame” Koran 23:5-6…
Question 5: Is it permissible to have intercourse with a female captive immediately
after taking possession of her?
If she is a virgin, he her master can have intercourse with her immediately after taking possession of her. However, is she isn’t, her uterus must be purified first…
Question 6: Is it permissible to sell a female captive?
It is permissible to buy, sell, or give as a gift female captives and slaves, for they are merely property, which can be disposed of as long as that doesn’t cause the Muslim ummah any harm or damage.
Question 7: Is it permissible to separate a mother from her children through the act of buying and selling?
It is not permissible to separate a mother from her prepubescent children through buying, selling or giving away a captive or slave. But it is permissible to separate them if the children are grown and mature.
Question 8: If two or more men buy a female captive together, does she then become sexually permissible to each of them?
It is forbidden to have intercourse with a female captive if the master does not own her exclusively. One who owns a captive in partnership with others may not have sexual intercourse with her until the other owners sell or give him their share.
Question 9: If the female captive was impregnated by her owner, can he then sell her?
He can’t sell her if she becomes the mother of a child…
Question 10: If a man dies, what is the law regarding the female captive he owned?
Female captives are distributed as part of his estate, just as all other parts of his estate are distributed. However, they may only provide services, not intercourse, if a father or one of the sons has already had intercourse with them, or if several people inherit them in partnership.
Question 11: May a man have intercourse with the female slave of his wife?
A man may not have intercourse with the female slave of his wife, because the slave is owned by someone else.
Question 12: May a man kiss the female slave of another, with the owner’s permission?
A man may not kiss the female slave of another, for kissing involves pleasure, and pleasure is prohibited unless the man owns the slave exclusively.
Question 13: Is it permissible to have intercourse with a female slave who has not reached puberty?
It is permissible to have intercourse with the female slave who hasn’t reached puberty if she is fit for intercourse; however, if she is not fit for intercourse, then it is enough to enjoy her without intercourse.
Question 14: What private parts of the female slave’s body must be concealed during prayer?
Her private body parts that must be concealed during prayer are the same as those that must be concealed outside prayer, and they include everything besides the head, neck, hands and feet.
Question 15: May a female slave meet foreign men without wearing a hijab?
A female slave is allowed to expose her head, neck, hands, and feet in front of foreign men if fitna enticement can be avoided. However, if fitna is present, or if there is fear that it will occur, then it i.e. exposing these body parts becomes forbidden.
Question 16: Can two sisters be taken together while taking slaves?
It is permissible to have two sisters, a female slave and her aunt her father’s sister, or a female slave and her aunt from her mother’s side. But they cannot be together during intercourse, and whoever has intercourse with one of them cannot have intercourse with the other, due to the general consensus over the prohibition of this.
Question 17: What is al-‘azl?
Al-‘azl is refraining from ejaculating on a woman’s pudendum i.e. coitus interruptus.
Question 18: May a man use the al-‘azl technique with his female slave?
A man is allowed to use al-‘azl during intercourse with his female slave with or without her consent.
Question 19: Is it permissible to beat a female slave?
It is permissible to beat the female slave as a form of darb ta’deeb disciplinary beating, but it is forbidden to use darb al-takseer literally, breaking beating, darb al-tashaffi beating for the purpose of achieving gratification, or darb al-ta’dheeb torture beating. Further, it is forbidden to hit the face.
Question 20: What is the ruling regarding a female slave who runs away from her master?
A male or female slave’s running away from their master is among the gravest of sins…
Question 21: What is the earthly punishment of a female slave who runs away from her master?
She i.e. the female slave who runs away from her master has no punishment according to the shari’a of Allah; however, she is to be reprimanded in such a way that deters others like her from escaping.
Question 22: Is it permissible to marry a Muslim slave or a kitabiyya i.e. Jewish or Christian female slave?
It is impermissible for a free man to marry Muslim or kitabiyat female slaves, except for those men who feared to commit a sin, that is, the sin of fornication…
Question 24: If a man marries a female slave who is owned by someone else, who is allowed to have intercourse with her?
A master is prohibited from having intercourse with his female slave who is married to someone else; instead, the master receives her service, while the husband gets to enjoy her sexually.
Question 25: Are the huddoud Koranic punishments applied to female slaves?
If a female slave committed what necessitated the enforcement of a hadd on her, a hadd is then enforced on her – however, the hadd is reduced by half within the hudud that accepts reduction by half…
Question 27: What is the reward for freeing a slave girl?
Allah the exalted said in the Koran: “And what can make you know what is breaking through the difficult pass hell? It is the freeing of a slave.” And the prophet Muhammad said: “Whoever frees a believer Allah frees every organ of his body from hellfire.”
Appendix II: Main Information about the Interviewed Yazidi WomenNo. Date of the interview
Name Age Civil status Number of children Age and sex of
the children Hometown or village Holding site Time in captivity Number of times being sold or gifted Way of escape
1 20.03.2017 Yasmin 21 Single 2 ? M ? M Gabara Tal Afar 21 M 9 Ran away
2 20.03.2017 Shilan 24 Single 0 – Khana Sor Raqqa 14 M 2 Rescued
3 21.03.2017 Leila 46 Widow 6 27 Y M 26 Y M 21 Y M 15 Y F 11 Y M 9 Y F Al-QabusiaQasr Mahrab4 M 2 Paid 8000 EUR
4 22.03.2017 Lamiya30 Married 2 1 7 Y M 4 M M
HardanRaqqa 9 M 2
5 22.03.2017 Dalal19 Single 0 – SibalTal Afar 18 M 1 Paid 35 000
6 23.03.2017 Noreen 28 Widow 3 8 Y F 4 Y M
1 Y M
Tal Banat Mosul 12 M 16 Paid 19 000
7 24.03.2017 Farida 31 Married 3 4 Y F 2 Y M
8 M M
Sinjar Raqqa 5 M 8 Set free
8 25.03.2017 Heva 35 Married 4 10 Y F 7 Y M
5 Y M 3 Y F
Tal-Qasab Mosul 6 M 14 Rescued
9 26.03.2017 Sara 18 Single 0 – KochoMosul 14 M 28 Ran away