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International criminal law and Daesh

On 20 April 2016, after hearing harrowing testimony coming from victims, the UK House of Commons unanimously adopted a resolution declaring “That this House believes that Christians, Yazidis, and other ethnic and religious minorities in Iraq and Syria are suffering genocide at the hands of Daesh; and calls on the Government to make an immediate referral to the UN Security Council [SC] with a view to conferring jurisdiction upon the International Criminal Court [ICC] so that perpetrators can be brought to justice” (HC Hansard 20 April 2016 columns 957-1000). It is the purpose of this comment to discuss the accuracy of this determination and its legal significance.

The Crimes

There are three international crimes that are of specific relevance to Daesh’s conduct: war crimes, crimes against humanity, and genocide.

The core of the law of war crimes that applies to all armed conflicts is stated in Common Article 3 to the 1949 Geneva Conventions. There is other law applicable here, but it suffices to comment here that although this was drafted in 1949, and amongst other things, prohibits the killing of civilians, it could have been written specifically to cover Daesh’s conduct.

Crimes against humanity are defined in Article 7 of the ICC’s Statute, as including killing and rapes as a part of a widespread or systematic attack on a civilian population. Again, although it preceded Daesh’s founding, it could have been drafted with it in mind.

With war crimes and crimes against humanity, the issue is not whether Daesh members have committed such crimes, but what to do about them. The most controversial issue, however, is whether the conduct of Daesh is genocidal. Sociologically, the definition of genocide is often taken to cover all mass killings. The law, however, is narrower. The legal definition of genocide is contained in Article 2 of the Genocide Convention of 1948, which reads:

genocide means 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.

By virtue of treaty or customary international law this is the definition that binds all States.

The Nature of Genocide

Genocide is characterised by its special intention, which is to destroy, in whole or in substantial part, a national, ethnic, racial or religious group. This has been determined by international courts, including the International Court of Justice (ICJ), to be physical rather than cultural. Even so, actions that target culture may be good evidence of genocidal intent.

A person may also be guilty of genocide in the absence of an overall plan or policy. The quintessential examples of genocide have occurred pursuant to policies, but it is not a formal requirement for guilt under general international law. There is a difference between determining (in the overall sense) that a genocide has occurred and that an individual is guilty of genocide (known as being a génocidaire).

Legal Obligations of States

Some (including some British MPs) think that declaring that there is a genocide gives rise to obligations on parties to the Genocide Convention to intervene, including militarily, owing to the obligation to prevent and punish genocide in Article 1 of the Convention. However, the ICJ made clear in the Bosnian Genocide case, the fact that a genocide has occurred does not mean that all parties to the Genocide Convention have such legal obligations. Absent direct State responsibility, or a very special relationship between a State and those committing genocide, there is no legal obligation to take direct unilateral action. Morality may suggest differently.

As a matter of law, for the Security Council to invoke its coercive powers under Chapter VII of the UN Charter (which can involve referring the matter to the ICC, or even mandating military intervention), what is required is that the Council declare there to be a threat to international peace and security under Article 39 of the Charter. Proof of genocide is not necessary for this, and, the situation involving Daesh clearly amounts to such a threat, as was (entirely lawfully) confirmed by the SC in Resolution 2253 of December 2015.

Daesh and Genocide

Prior to the House of Commons resolution, on 17 March 2016, US Secretary of State John Kerry said that:

Daesh is responsible for genocide against groups in areas under its control, including Yazidis, Christians, and Shia Muslims. Daesh is genocidal by self-proclamation, by ideology, and by actions – in what it says, what it believes, and what it does.

There is very good evidence for this. There have been killings and rapes of members of the Yazidi community, who are a religious group protected by the Genocide Convention. Furthermore, any evidence of a ‘convert or die’ imperative mentioned as being a Daesh policy by Lord Alton (HL Hansard 3 February 2016, column 1860) would be very strong evidence of genocidal intent.

Indeed Daesh may be condemned from its own words. In issue 4 of Dabiq, Daesh’s mouthpiece, they stated

[u]pon conquering the region of Sinjar…the Islamic State faced a population of Yazidis, a pagan minority existent for ages in regions of Iraq and Shām. Their continual existence to this day is a matter that Muslims should question as they will be asked about it on Judgment Day.

Although the piece continues to say that if Yazidis convert, mercy is to be shown to them, it is very strong evidence of a genocidal policy.

Daesh’s actions with respect to other religious groups, are almost certainly, at least, war crimes and crimes against humanity, and likely to be genocidal. Also, even if a policy could not be proved, individuals have almost certainly acted with genocidal intent and may be convicted as génocidaires.

To summarise, a genocide against the Yazidis is almost definitely occurring, and is probably happening in relation to other groups. The Security Council is acting within its powers when it deals with Daesh. It is not necessary that a genocide be declared for further action to be taken.

Nonetheless, the resolution of the House of Commons is a welcome acceptance that where genocides occur they should be recognized as such, and of the importance of the ICC. Although political realities in the SC mean that there may be a veto on a resolution sending the matter to the ICC, the political importance of the House of Commons declaration is significant, as it will pressure the government, as a permanent member of the SC, to go to that body and ask for action.

Featured image: Bullet Holes on wall with a Window. (c) AbdukadirSavas via iStock.

Recent Comments

  1. […] Here’s a thoughtful analysis of similar international crimes by Daesh against the Yazidis and other ethnic and religious minorities. […]

  2. […] 21 April 2016, Professor Robert Cryer published a concise analysis of the possible consequences of a resolution adopted by the UK House of Commons a day earlier, […]

  3. […] Recently, there was a piece by Rob Cryer on the OUP blog that analysed the potential criminal liability of Daesh and its members in relation to war crimes, crimes against humanity and genocide, see here. […]

  4. Lyn - Criminal Law

    I’m glad that this has been clearly identified in the international law as more and more crimes are committed in relation to war. I hope that the number decreases because of these laws if it is not possible to put a stop on them.

  5. Andrew

    War crimes are growing exponentially and it is good that these things are being clearly defined. Criminal law is something that can be quite gray at times. It is great to see that people are able to classify this for the rest of the world.

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