TABLE OF CONTENTS I. INTRODUCTION 1424 II. BACKGROUND 1425 A. ISIL in Iraq and Syria 1425 B. History of Sexual Violence and International Law 1429 1. Origins 1429 2. 1990s--Women's Rights Emerge as International 1432 Priority C. International Efforts to Combat Conflict-Related 1435 Sexual Violence III. CEDAW AS A FRAMEWORK FOR VIOLENCE AGAINST WOMEN 1437 A. History of CEDAW 1437 B. CEDAW's Incorporation of Violence against Women 1440 C. Due Diligence 1443 IV. APPLYING DUE DILIGENCE: PROBLEMS AND SOLUTIONS FOR 1446 CONFLICT-RELATED SEXUAL VIOLENCE IN IRAQ A. Accountability: Due Diligence in the Criminal Sphere 1446 1. International Criminal Options 1447 2. National & Local Prosecutions--Due Diligence to 1449 Investigate and Punish B. Due Diligence and Reparations 1455 1. Reparations--Compensation 1456 2. Collective or Non-Monetary Reparations 1462 V. CONCLUSION 1465 I. INTRODUCTION
In October 2017, the Islamic State's (ISIL) so-called capital of Raqqa fell to a US-backed alliance of Syrian fighters, representing a kind of symbolic end to ISIL as a self-declared nation-state controlling significant physical territory. (1) Similarly, with the capture of Mosul and other ISIL territory, Iraqi forces have celebrated the nearly complete defeat of ISIL in Iraq. (2) As these forces recapture territory, the process of reintegration and redress for civilians who suffered under Islamic State control is an imminent issue.
On August 22, 2017, the United Nations Office of the High Commissioner for Human Rights (OHCHR) and the United Nations Assistance Mission for Iraq issued a human rights report regarding the protection of rights of victims who experienced sexual violence under ISIL in Iraq. (3) The report describes how large numbers of women and girls, as well as a number of men and boys, suffered conflict-related sexual violence by ISIL. (4) The report also lays out the legal framework--international, national, and regional laws--for supporting these victims and provides recommendations for the Iraqi government to pursue in order to best protect the rights of women and girls who survived conflict-related sexual violence. (5)
Due to the targeting of the Yazidi community and the extensive coverage of their plight, this Note will use the Yazidis and ISIL as a case study for discussing and examining the broader problem of conflict-related sexual violence. This focus does not mean to ignore that sexual violence during this conflict has touched more than the Yazidi community, including individuals of different religions, nationalities, and even genders, though women still remain a significant portion of the survivors. (6)
Part II of this Note provides general background on the conflict in Iraq and Syria involving ISIL. In particular, Part II focuses on ISIL's system of sexual enslavement, its targeting of the Yazidi community, and how survivors are faring thus far. Part II also discusses the history of sexual violence in international law, including the international community's sluggish response to the issue of violence against women, both domestically and in the context of conflict. Because there is no treaty on violence against women, Part III explains how the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the leading international treaty on women's equal treatment, obligates states to prevent, investigate, punish, and ensure redress for acts of discrimination against women, including sexual and domestic violence. Part IV applies the CEDAW due-diligence framework to the situation in Iraq and discusses options for criminal accountability, such as the duty to investigate and punish, and options for reparations and other reforms, such as the duty to redress.
ISIL in Iraq and Syria
The "Islamic State" has become more famous in the last few years for its actions in Syria, Iraq, and beyond, but it has existed under various names and shapes since the early 1990s. (7) It merged and interacted with various other Islamic insurgents in Iraq in the 2000s, but the "Islamic State" we know today came to power after the Syrian rebellion against Bashar al-Assad; at this point, the group's leader, Abu Bakr al-Baghdadi, renamed it the Islamic State in Iraq and the Levant (ISIL). (8) ISIL began a campaign of expansion to cover 90,800 square kilometers of Syria and Iraq, including several major cities. (9)
In August 2014, ISIL's territorial campaign expanded its territory to include the area around Mount Sinjar, home to a religious minority called the Yazidis. (10) The Yazidis are a small group of ethnic Kurds numbering around five hundred thousand people total. (11) They practice a syncretic, monotheistic religion with elements of Zoroastrianism, Mithraism, Mathdaism, and other local traditions. (12) Because of this blend of religious elements and misinterpretations of their religion, some Muslim populations have labeled the Yazidis as "devil worshippers" and have targeted them for persecution for several hundred years. (13) In the 1970s, for instance, Saddam Hussein's Arabization programs forced Yazidis to leave their villages and to relocate in cities like Sinjar. (14)
In line with this tradition of persecution, ISIL's treatment of the Yazidis has been particularly brutal. Upon capturing Yazidis, ISIL immediately separated the men and women, then executed the men and confined young, unmarried girls in schools, palaces, and various other municipal buildings in the cities. (15) From there, the girls and women became part of ISIL's extensive, organized sex trade, which included slave markets. (16) Most scholars and journalists agree that this widespread campaign of sexual enslavement was not implemented against other religious minorities, an idea later confirmed by ISIL's propaganda magazine. (17)
The Yazidis were intentionally targeted because they were not "People of the Book," like Jews and Christians, so could pay a tax known as jizya or jizyah to be set free. (18) To justify the human trafficking, ISIL cited specific verses in the Quran, as well as other religious writings that sanctioned slavery and provided detailed rules for the practice. (19) This "theology of rape" is exemplified by accounts of ISIL fighters kneeling to pray right before and after forcing themselves on young girls: in one telling example, a fighter took time to explain to his twelve-year-old victim that the Quran gave him the right to rape her and encouraged the act. (20) In the slave markets themselves, girls were observed and forced to answer intimate questions, including questions about their last menstrual cycle, in order to keep in line with a Shariah rule that men cannot have sex with a pregnant slave. (21)
Responsibility for the sexual violence extended beyond the buyers, fighters, and immediate perpetrators: to control and manage the nearly six thousand Yazidi women captured, ISIL's sex trade operated through an intricate bureaucracy of judges, government officials, and markets. (22) Institutions, like the courts set up and administered by ISIL, have provided religious justifications for slavery as well as practical rules guiding slave transactions and treatment. (23) For example, courts drafted and approved sales contracts for slaves and occasionally provided documents known as "certificates of emancipation" that freed slaves. (24)
ISIL forbade brothers from transferring slaves to one another and ISIL fighters from transferring slaves to non-ISIL fighters--to keep in line with the justification of slaves as "spoils of war" and to prevent reselling a girl to her family. (25) Laws also provided for reversion, ensuring slaves were not freed if their owner died intestate but were instead returned to common ownership by ISIL who placed them on the market again. (26) As ISIL lost territory, the number of enslaved women dwindled, so ISIL imposed restrictions designed to stop Yazidi women from escaping, like requiring women to register in an electronic database checked at ISIL "border" checkpoints. (27)
Reports and testimony from survivors and escapees confirm the extensive physical, mental, and emotional abuse endured at the hands of ISIL, as well as the trauma that continues even after escape. (28) This trauma is compounded by the difficulties of living in camps and the grief of losing family members. (29) While all the captives experienced horrors, the women and girls who remained under ISIL control until the last year or two, such as those recently liberated with the city of Mosul, have displayed signs of severe psychological injury. (30) One Yazidi gynecologist, who has treated over a thousand of these rape victims, described them as "very tired," "unconscious," and "in severe shock and psychological upset." (31) This shock, reportedly present in up to 90 percent of the women freed, is revealed frequently as severe lethargy: women and girls sleep for days and appear unable to wake up or sit up. (32) Some have shown signs of indoctrination, refusing to remove their face-covering niqabs and calling their ISIL husbands "martyrs." (33) Even journalists and aid workers experienced in treating these kinds of victims have noted that the abuse ISIL inflicted on the Yazidi women and girls is unlike anything they have seen before. (34)
Given the scope of ISIL's sexual violence and the lack of available resources, many victims have had to remain in camps, where mental health treatment is poor, and many women remain suicidal as a result of being unable to accept the amount of violence they have experienced. (35) Healthcare experts and advocates say there are not enough resources to provide the necessary long-term care for these survivors. (36) There is also concern in the community about abducted women and their families facing ostracism as a result of the stigma attached to the loss of virginity. (37) However, some reports, which will be discussed in a later subpart, indicate Yazidi leaders have made an...