Taking IS to the International Criminal Court

In August it will be two years since Islamic State group (IS) attacked the community of Sinjar, home to over 400,000 Yazidis. Initially, the Yazidis thought that the terrorist group would spare them, just as they had with some Christians in the past. But paying "jizyah" - a minority tax by non-Muslims in exchange for protection - was not even an option, as IS had other far more brutal plans in mind.

Thousands of women and girls were kidnapped and taken by IS to cities such as Mosul and Raqqa. Once they were there, IS took photos of them and put their names and faces on price lists. Women and girls were sold, traded or bought as "gifts" for other IS-militants at special slave markets. The most beautiful and young women and girls, especially those with green eyes, were bought first. They were handed from fighter to fighter, subjected to constant rape and beatings. Some of them were only nine years-old.

To separate the boys from the men, IS militants looked at their armpits – when they had no hair, boys were forcibly converted to Islam and brainwashed into serving as fighters. When they did have hair, IS considered them to be men, and they were killed and dumped in mass graves.

There is no need to speculate on what motivated IS. Shortly after the massacre and enslavement, IS explained its actions in detail. In an issue of its online magazine Dabiq, IS said that after an in-depth study carried out by their Sharia students, they had decided on how to treat the Yazidis: Enslavement is the appropriate treatment of the "families of the kuffar".

"Unlike the Jews and Christians, there was no room for jizyah payment... After capture, the Yazidi women and children were then divided according to the Sharia amongst the fighters of IS who participated in the Sinjar operations, after one fifth of the slaves were transferred to the Islamic State's authority to be divided", IS members wrote.

How is it possible to prosecute IS? We are dealing with a non-state actor, despite the fact that they call themselves 'Islamic State'

How should we react to such horror, which was so well-planned and well-coordinated? The first step is call it a genocide. "The European Parliament, the Parliamentary Assembly of the Council of Europe, the US government and the UK House of Commons have all recognized that there is a genocide being perpetrated by IS against the Yazidis in Iraq", human rights lawyer Amal Clooney said in a statement in which she explained that she that she will represent victims of the Yazidi genocide at the International Criminal Court (ICC) at The Hague.

She will represent IS survivor and Nobel Peace Prize nominee Nadia Murad, a Yazidi woman who was enslaved and raped by more than a dozen IS fighters over three months, and Yazda, a non-profit organisation that has been helping the Yazidi community since the genocide began.

"How can it be that the most serious crimes known to humanity are being carried out before our eyes but are not being prosecuted by the ICC?" Clooney added. Together, they plan to seek an ICC investigation and prosecution of the crimes committed against Nadia Murad and the Yazidi community.

When the testimonies of survivors can be linked to individual cases of foreign fighters, prosecution is possible

I must admit I was skeptical when I heard this news. How is it possible to prosecute IS? We are dealing with a non-state actor, despite the fact that they call themselves "Islamic State". These crimes therefore, are taking place on Iraqi jurisdiction, and Iraq has not ratified the Rome Statute. Furthermore, how will it ever be possible to prosecute IS-leader Abu Bakr al-Baghdadi if we do not even know where he is, or even if he will be alive in a few months from now? And isn't it also important to prosecute other IS leaders from Iraq or Syria for their role in planning and coordinating these crimes?

Of course these are all relevant questions. However, we are forgetting one important element: The foreign fighters.  

Around 6,000 jihadists from Europe joined IS in Iraq and Syria. In addition to that, around 6,000 Tunisians have left Tunisia (the first North African nation to join the ICC) to fight for IS. Thousands of citizens from ICC member-states have become militants. It is well-known that many foreign fighters have returned to their countries of origin, whether it is France, the Netherlands or Tunisia. A substantial number have not been prosecuted and are still walking the streets freely today.

Pari Ibrahim, the founder of the Free Yezidi Foundation, told me there is evidence that foreign fighters have been involved in the crimes of genocide and sexual slavery, as victims have testified. When the testimonies of survivors can be linked to individual cases of foreign fighters, prosecution is possible.

Also, it is important to do this at the ICC rather than in national courts. Yazidis have been murdered, enslaved, raped and humiliated simply for being Yazidi. Not only do they have little faith in the Iraqi justice system (where you can buy your way out of jail), they also need recognition and justice from the international community so that their wounds can begin to heal.

'How can it be that the most serious crimes known to humanity are being carried out before our eyes but are not being prosecuted by the ICC?' Clooney added.

When I was in Dohuk in 2015 to talk to the victims, Yazidis made it very clear they felt abandoned by the international community. And in 2013, even before IS attacked them in Sinjar, they told me they had been subjected to dozens of attempts at extermination by groups such as al-Qaeda, and that they were afraid of another massacre.  

"Why isn't the world helping us? Look at what IS is doing to us now. How can they let this happen?" one desperate woman said during my last trip. 

There is no doubt that seeking justice for the Yazidis through the ICC is going to be a long and complicated process which will probably take years. The ICC has yet to even begin a preliminary investigation, which is needed to open the case. However, many have high hopes that based on the testimonies from Yazidi organizations and Clooney's expertise, this will happen.

Prosecuting IS through the ICC will not only give a clear signal to the Yazidis, it will also tell communities all over the world that justice will be served. Even if Clooney manages to get one foreign jihadist who thought he could get away with it behind bars, it will be worth the effort.

Brenda Stoter is a Dutch journalist who writes about the Middle East, with special attention to women and children and Western female jihadists. Her articles have been published by Al Jazeera English, Al-Monitor and Middle East Eye as well as featured in Dutch and Belgium national newspapers and magazines, including De Tijd, Trouw and De Groene Amsterdammer. Follow her on Twitter: @BrendaStoter

Opinions expressed in this article remain those of the author and do not necessarily represent those of The New Arab, its editorial board or staff.