After US President Donald Trump asked Western countries to bring their ISIS prisoners (members of the Islamic State of Iraq and the Levant) home, there has been hot discussion on this issue. There are several ideas and opinions about what is correct or wrong in this case. Some believe that ISIS prisoners who are European citizens must be taken home and prosecuted in the countries to which they belong. Some have suggested that they should be prosecuted in Syria or Iraq instead. There is also a suggestion that a court should be established in the area, as was done in the pirate case on the Somali coast. Finally, there are also ideas for establishing a special tribunal similar to other special courts that have previously dealt with genocide cases.

Prosecution of ISIS perpetrators is necessary in order to have a fair trial and punishment appropriate to the crimes committed. But how and where should this prosecution take place?

When we look at how brutal and comprehensive the ISIS crimes have been, especially against the Yazidi minority, we have to put the case in a proper category and look at the matter in the same terms as previous genocide cases.

According to the United Nation (UN), the European Union (EU), the US and several other countries and organizations the ISIS has committed genocide against the Yazidi people. There are also some who believe that ISIS has also committed genocide against Christians and other ethnic minority groups in the area. The ISIS has in fact committed war crimes, crimes against humanity and genocide.

In connection with previous genocide cases in Rwanda (1994) and the old Yugoslavia (1991), international tribunals such as The International Criminal Tribunal for Rwanda (ICTR) and The International Criminal Tribunal for Yugoslavia (ICTY) were established for prosecution of the perpetrators who had committed the crimes. In Iraq, the Iraqi High Tribunal (IHT) (2005) was founded for the prosecution of Sadam Hussein and other Baath leaders who had committed the crimes against the Kurds and Shia-Moslems between 1968 and 2003. In Cambodia, the Special Tribunal for Cambodia (2006) consists of both Cambodian and international judges, was established for prosecution of the perpetrators of the Khmer Rouge regime from 1975-79. These tribunals, regardless of criticisms, have been a positive experiment from a legal, political, historical, and humanitarian perspective.

The Yazidis, who have been the most significant victims of ISIS crimes because of their religious differences, are considered by ISIS and other radical Islamists as devil worshippers that must be exterminated. They are a peaceful, powerless, and vulnerable ethnic group that deserves fair and proper legal treatment of their case. There is no doubt that, if the Yazidis belonged to a strong nation, this case and the prosecution of the perpetrators would be treated quite differently.

It is worth mentioning, that neither the Kurdish Regional Government (KRG) nor the Iraqi government will highlight this important case in order to form a special tribunal for prosecuting the ISIS perpetrators. That is of course not without reasons. Again they fail to protect and promote the interests of the Yazidi minority.

In this case, too, emphasis must be placed on the fact that the genocide against the Yazidi minority differs from other former genocide cases. First, ISIS is not a state but a terrorist organization that has committed crimes. Rape and sexual enslavement have also been characterized in the genocide, factors which cannot be seen in such a large size in other genocide cases. ISIS has used new, brutal methods and actions in its crimes. It is therefore important that, in addition to legal correctness, the criminals’ method and actions be investigated thoroughly.

The crimes against the Yazidis and other ethnic groups in the area is a genocide case to be handled as other genocide cases would be handled. That is why the creation of a special tribunal similar to, for example, the Iraqi High Tribunal, is an ideal solution to the prosecution of ISIS perpetrators who have committed crimes in Iraq and Syria. However, this court must be led by international judges and lawyers. Local judges and lawyers may not have the necessary legal capacity for the job and can easily be affected by political powers in the area. Therefore, the tribunal must be independent, and the staff must belong to other nations with experience and practice. The placement of the court may be either in Iraq or the eastern part of Syria, which is under the control of the Syrian Democratic Forces (SDF) and the US.

Finally a special tribunal for prosecution of ISIS perpetrators will enrich our understanding of genocide and methods for preventing the repetition of this type of crime elsewhere in the world in the future.

By Shakhawan Shorsh

21 February 2019