Deportation of the Yazidis “causing serious bodily or mental harm to members of the

Without doubt, genocide has been committed by ISIS members against the Yazidis since it has been recognised by the UN, several countries and their parliaments, NGOs and first-hand evidence has been collected.¹⁵⁶ However, the genocide did not take place on the territory of a State party to the Rome Statute. In order to enable the ICC to prosecute ISIS members for the genocide, it is necessary that at least one part of the genocide took place in the territory of a State Party in order to fall under the territorial jurisdiction of article 12 (2) (a).

In the previous chapter, it has been determined that the Yazidis have been forced to flee into Jordan due to coercive acts of ISIS members which amounts to the crime of deportation.¹⁵⁷ An interesting issue is if the deportation could amount to the crime of genocide. The crime of deportation is not specifically mentioned in the definition of the genocide convention. The reason for this was to make a clear distinction between the destruction of a group and deportation of that group. The ICTY held in its Stakic case: “[i]t does not suffice to deport a group or a part of a group. A clear distinction must be drawn between physical destruction and mere dissolution of a group. The expulsion of a group or part of a group does not in itself suffice for genocide.”¹⁵⁸ Besides, this difference was also made in order to distinguish ethnic cleansing from genocide.¹⁵⁹

Deportation or forcible transfer is not a genocidal act but it does not mean that it cannot be the evidence of the intention of the prosecutors to destroy the group.¹⁶⁰ The deportation of

Yazidis has had a huge impact on the group and the individual families and persons. Many people lost their homes, saw relatives being killed¹⁶¹, were maltreated, enslaved, tortured,

155 Ibid 147.

156 Kochoi, “The Crime of All Crimes” of the Terrorist Organization “Islamic State,” 202.

157 ICC-01/19-27 14-11-2019: 110.

158 CHETAIL, “Is There Any Blood on My Hands?” 934. ; Prosecutor v. Stakic, [2003] ICTY Trial Chamber IT-97-24-T, T, para. 519.

159 CHETAIL, “Is There Any Blood on My Hands?” 935.

160 Prosecutor v Radislav Krstic, ICTY Judgment, Case No. IT-98-33-A Appeals Chamber (AC) 19 April 2004:

para 33.

161KatharinaGoessmann, Ibrahim Hawkar and Frank Neuner, “Association of War-Related and Gender-Based Violence With Mental Health States of Yazidi Women,” JAMA network open 3, no. 9 (2020): e2013418–: 7.

32 raped, humiliated and deported.¹⁶² All these crimes cause ‘serious bodily or mental harm’ to the Yazidis since they have experienced inhumane treatment. Many Yazidis who are now

‘save’, experience trauma’s, stress disorders and other mental health issues.¹⁶³ Studies with a small group of forcibly transferred Yazidis show that 43% of the group experience post-traumatic stress disorder (PTSD) and 40% cope with severe depressions.¹⁶⁴ The mental health issues Yazidis experience is due to the crimes committed by ISIS against them. Besides, Yazidis also experience bodily harm due to the physical pain they have endured. Hence, the deportation did cause ‘serious bodily or mental harm’ to the victims. Further, deportation can amount to a ‘slow death’ according to the ICJ and the International Law Commission¹⁶⁵ and amounts to the element “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.”¹⁶⁶ Inflicting on the group ‘conditions of life’ includes the systematic expulsion from homes according to article 6 (c) (4) Element of Crimes which is what the Yazidis have experienced.¹⁶⁷

The question if deportation amounts to ‘causing serious bodily or mental harm to members of the group’ can be answered positively. The Eichmann Judgment from 1961 held that

deportation causes serious or bodily harm and the ICTY and the ICTR stated the same. In the ICTR Krstic case, the Trial Chamber held: “inhuman treatment … and deportation are among the acts which may cause serious bodily or mental injury’.”¹⁶⁸ In order to determine if

deportation indeed amounts to serious or bodily injury should be looked at on a case-by-case basis and take into account the circumstances.

I would like to argue that the ICC can not only have jurisdiction over the deportation of the Yazidis into Jordan, but also over the crime of genocide. Deportation can cause a ‘slow death’

which can be seen as ‘to bring about its physical destruction in whole or in part’ of the group, in this case the Yazidis. The element, ‘causing serious bodily or mental harm to members of the group’ is also adhered to in the case of the deportation of the Yazidis. Both mental elements in order for a crime to constitute as genocide alongside the physical element (the

162 Ibrahim Hawkar, Verena Ertl, Claudia Catani, Azad Ali Ismail, and Frank Neuner. “Trauma and Perceived Social Rejection Among Yazidi Women and Girls Who Survived Enslavement and Genocide.” BMC

medicine 16, no. 1 (2018): 2.

163 Ibid 162.

164 Ibid 162.

165 CHETAIL, “Is There Any Blood on My Hands?” 939.

166 ILC, Report of the International Law Commission on the Work of its Forty-Eighth Session, UN Doc. A/51/10 (1996), 46.

167 Element of Crimes, article 6 (c) (4), fn 4.

168 CHETAIL, “Is There Any Blood on My Hands?” 940. ; Prosecutor v Radislav Krstić [2001] ICTY Trial Chamber IT-98-33-T, para 513.

33 actus reus) genocide are adhered to. The intent element was clearly mentioned by ISIS in its Dabiq magazine where they referred to the ‘final campaign’ with the meaning of

exterminating other groups.¹⁶⁹ Hence, it can be stated that part of the conduct (actus reus of the crime) of genocide, ‘causing serious bodily or mental harm’, as part of the crime of deportation has partially taken place on the territory of a State Party, namely Jordan.

Therefore, the ICC can exercise territorial jurisdiction under article 12 (2) (a) of the Rome Statute.

169 Myers Raben, “The ISIS Eradication of Christians and Yazidis,” 245.

34 Conclusion

Regarding the crimes committed against the Yazidis, it has been argued that there could be a possibility to prosecute ISIS members at the ICC for the crime of deportation of the Yazidis from Iraq and Syria and for the crime of genocide by exercising territorial jurisdiction under article 12 (2) (a) Rome Statute. However, a prosecution is only possible if the Prosecutor is willing to start a preliminary investigation, which means that the Prosecutor shall submit a request for authorization of an investigation from the Pre-Trial Chamber under article 15 Rome Statute. It is therefore very important that the Prosecutor gathers evidence from witnesses and victims to present to the ICC and concludes that the evidence of the victims is enough in order to proceed the case. Besides, the Prosecutor has to acknowledge the

Myanmar/Bangladesh case regarding the deportation of the Rohingya as a precedent for other situations in order to grant the ICC territorial jurisdiction “if at least part of the conduct (i.e.

the actus reusof the crime) took place on the territory of a State Party.” In the case of the Yazidis, the territories on which the crimes have been committed are Syria and Iraq which are not State Parties, but possibly parts of the conduct took place in State Party Jordan. The crimes committed against the Yazidis include deportation, sexual slavery, rape, enslavement, forced prostitution and genocide.

Only the crimes of deportation and genocide are likely to be the crimes for which the ISIS members can be prosecuted at the ICC. Due to the crimes against the Yazidis, many of them were forced to flee to Jordan which amounted to deportation. Therefore, part of the actus reus took place in Jordan and the mens rea element, the intent of the ISIS members, has also been adhered to. Hence, the ICC could exercise territorial jurisdiction over the crime of

deportation. This conclusion is drawn after having analysed the 2018 and 2019 judgments of PTC I and III concerning the deportation of Rohingya as investigated in the

Myanmar/Bangladesh case. With respect to genocide, it has been determined that ISIS members had the intent to destroy the Yazidi group. Deportation did cause ‘serious bodily or mental harm’ to the Yazidis as did the rape of many Yazidi women and girls. It is very likely that the genocide and rape of many women forced the Yazidis to flee to Jordan which amounts to deportation. Since the deportation took partially place in Jordan which is a State Party to the ICC, part of the actus reus of genocide took possibly place as well on the territory of Jordan. In consequence, the ICC could exercise territorial jurisdiction over the crime of genocide alongside the crime of deportation.

35

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