ERBIL, Kurdistan Region - Baghdad is refusing to cooperate with Erbil’s initiative to prosecute the Islamic State (ISIS) in the International Criminal Court (ICC) for the genocide committed by the militants against the Kurdish Yezidi minority, a Kurdish official said.
“Our problem is that Baghdad is not willing to cooperate with us to sign the Rome Statute or to join the ICC,” Hussein Hasoon, special advisor to the Kurdistan Regional Government on the Recognition of Genocide of Minorities, told Rudaw.
The KRG wants to bring ISIS to justice before the world for the atrocities committed by the militants after they attacked the Yezidi town of Shingal in August 2014 and went on a rampage of looting, murder, rape and the kidnapping of women to keep or sell as sex slaves.
However, because Kurdistan remains part of Iraq, and the KRG itself does not qualify as a member state, it is unable to single-handedly take the case to the ICC.
“We need Iraq on board to work with the ICC because as KRG, we don’t have the legal permission and authority to sign Rome Statute because the Rome Statute is only for member states,” Hasoon explained.
The Rome Statute allows the ICC to only investigate and prosecute international crimes in instances where states are either "unable" or "unwilling" to do so themselves. In case Baghdad never complies with the prosecution against ISIS, the KRG has some other alternatives in order to involve the international community.
“We have some other options,” Hasoon said. “That is by referring the case by the (UN) Security Council. According to chapter 7 of the UN charter, when a group or a person or country is threatening peace or international security, the case can be referred like they did in Sudan or Libya because both of those countries were not, and still are not, members of the ICC.”
According to Hasoon, another option is to capture a high-ranking member of ISIS who holds citizenship of a country that is a member of the ICC.
“You have to have a suspect alive,” Hasoon explained. “You need a high-level member of ISIS to be brought to trial to represent the group and he must have citizenship of a country that’s a member of the ICC which would most likely mean that the official would have to be a foreign fighter who has a high level of responsibility for the crime.”
“You can’t accuse a normal member carrying a Kalashnikov. You need a high ranking official with responsibility,” Hasoon said. However, this option is the least likely since a high ranking foreign fighter within ISIS has yet to be captured alive that the commission is aware of.
“The best scenario is that Iraq would become a member of the ICC. The second scenario is for the Security Council to refer the case to the ICC and third one is going to be this, but so far we couldn’t get anyone,” Hasoon explained.
In recent developments, the investigators in the case against ISIS have found 28 mass Yezidi grave sites and expect to find 1,500 to 1,700 bodies from these graves.
“So far we discovered 28 mass grave sites,” Hasoon explained. “In Sinjar and the areas surrounding it, we believe, based on the investigation, interrogation and information we are getting from the victims and families of the victims, that we are going to discover between 1500 and 1,700 remains of dead bodies in these mass graves.”
Historically, the city of Sinjar has had the largest Yazidi community and was fully liberated from ISIS in December 2015.
“Regarding the mass graves, our goal is to achieve a judicial verdict or recognition of genocide from the international court,” said Hasoon.
“Dealing with the mass graves means you have to gather evidence that proves mass executions which is an essential part of genocide identification. You have to careful with the process of gathering evidence. Mass graves are a part of that process,” he explained.
“So we have been gathering evidence, case files from victims and people who managed to escape from mass executions of the mass graves, girls who escaped from the raping,” Hasoon explained. “The prime minister has opened a special office in Duhok to take responsibility to rescue girls and women from ISIS captivity and so far we have released 2.650. All these girls are at our commission in Duhok, so we record their testimonies with legal procedures.”
“We have enough evidence,” Hasoon said confidently.
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