Out of the blue, the prime minister of the Kurdistan Region in Iraq, Masrour Barzani, announced that a bill has been drafted to put ISIS-members on trial for their crimes. It has been sent to parliament already for a first hearing, and several commissions will have their say on it. At first sight, it sounds good that Kurdistan wants to take this responsibility. But if it really does, why so sudden, and why with a speed process without consultation with international experts? And why are ISIS’s victims not involved?
It is telling that the draft bill, called ‘The Special Court for ISIS Crimes’, is available in Kurdish and Arabic but not in English, the language of international humanitarian law: this effort to bring ISIS-members to court is obviously not based on thorough consultation with experts in the field. And that is necessary, because there is international experience with special courts prosecuting war crimes (former Yugoslavia, Rwanda), and in the courts in Kurdistan, there is no expertise.
The draft says that judges from outside can be appointed. But if you don’t consult with organisations that can provide those judges, how are you going to know if they can work with the law you wrote and are willing to participate in your court? An article in the Guardian about the court noted that it would have jurisdiction over crimes committed outside Iraq as well, but the international law experts that I talked to and that read the proposal, see no sign of that in the draft. What they do see, is the death penalty. That’s in itself not new in the Kurdistan Region. The death penalty is rarely carried out and only for the ‘worst crimes’, but if the Kurdish leaders talk about justice and democracy, they better abolish capital punishment all together.
I’ve seen some people say that it is a shame for the international community to let the Kurdistan Region solve this problem. And it is indeed a shame that nothing has been done to bring ISIS’s genocidal crimes to justice. That western countries don’t care about the genocide perpetrated against the Yezidis. Not only are they not making a serious effort to bring these gangs to trial, they also fail to help the Yezidi community to return to their homelands in Shengal safely, or to unite families that are scattered around Europe and in refugee camps in the Kurdistan Region so they can try to heal together.
This potentially failing court is on the Kurdistan Region itself though. If they seriously want to bring ISIS-members to trial, they could have made a concerted effort with those in the field to organize it.
Another big problem with the draft bill is that the Yezidi community, undoubtedly the biggest victims of ISIS’s crimes, hasn’t been consulted about it. They didn’t even know the Kurdistan Regional Government was working on such a law. Not only this tweet is attest to that, but also some people I have asked who should know said they had no idea. One Yezidi organisation that I contacted told me that they have been pressing the Kurdistani authorities since 2015 to go after those who murdered, abducted and enslaved them, but there was no response.
That’s not just bad, that’s adding insult to injury. Why? Well, I hate to bring it up again because the KDP never wanted to talk about it nor investigate what exactly happened and why, but the KDP is complicit. When ISIS fast approached Shengal in early August 2014, it was the KDP’s peshmerga who were in charge of protecting the Yezidis. And what did they do? They left the Yezidis and rushed back east to the Kurdistan Region as fast as they could. If it hadn’t been for the PKK that came running from the mountains to try to save the situation, the genocide would have taken even more victims. If the KDP is genuinely invested in justice for the Yezidi’s, why don’t they investigate their own role and take responsibility for it?
A court that is centered around retribution, in which even the death penalty could be used, is not the way forward. Seeing a few perpetrators literally hang may satisfy some people in the short term but the death penalty is nothing but state sanctioned murder, and it doesn’t bring the Yezidis back either.
It doesn’t restore the Yezidi community’s dignity. It doesn’t restore their confidence in the authorities that failed them. It doesn’t improve their access to justice, especially not of those who suffered, and continue to suffer the most: women.
It doesn’t facilitate a durable solution for the Yezidis’ marginalized position in society in both Kurdistan and Iraq proper, and beyond (for example in Syria, where Turkey and its mercenaries inflict crimes against them now). It doesn’t advance the cause of reconciliation. It’s not, in short, putting the Yezidis’ plight first.
This law proposal doesn’t help Yezidis. It only endangers them further.
Fréderike Geerdink is an independent journalist. Follow her on Twitter or subscribe to her weekly newsletter Expert Kurdistan.
For further reading on progressive restorative justice as proposed in Rojava please read Rahila Gupta’s recent article here.