Prosecuting gender-based persecution: the Islamic State at the ICC.

• Author: Chertoff, Emily
• Position: International Criminal Court

NOTE CONTENTS INTRODUCTION I. EVIDENCE OF GENDER-BASED CRIMES AGAINST YAZIDI WOMEN II. GENDER-BASED PERSECUTION AND THE EXPRESSIVE VALUE OF INTERNATIONAL LAW A. International Criminal Accountability B. Creating an International Norm C. The Insufficiency of Current Charges at the ICC 1. Current Theoretical Insufficiencies 2. The Need for a Composite Crime III. CHARGING GENDER-BASED PERSECUTION UNDER THE ROME STATUTE: THE ELEMENTS OF A CASE A. Threshold Questions: Procedural Matters and Individual Criminal Liability 1. Jurisdiction 2. Admissibility 3. Individual Criminal Responsibility B. Charging Islamic State with Gender-Based Persecution Under Article 7(i)(h) of the Rome Statute 1. The Widespread or Systematic Element 2. The Mens Rea Element 3. The Severe Deprivation of Fundamental Rights Element 4. The Nexus with Group Element 5. The Other Criminal Acts Element IV. GENDER-BASED PERSECUTION AND THE EVOLUTION OF THE ICC CONCLUSION INTRODUCTION

Over the past two years, media reports from Syria and Iraq have documented how the terrorist group Islamic State has systematically enslaved and raped women and girls from the Yazidi ethnic minority group. (1) One emblematic New York Times report details how Islamic State fighters have forced Yazidi women to take birth control in order to avoid violating a supposed religious mandate to abstain from sex with pregnant women slaves. (2) Women who have escaped this torture are fighting back. Some have spoken out against their captors in the press, to human rights observers, and at the United Nations (UN). (3) A group of them has even taken up arms against their former tormenters: a unit of women fighters based in Iraqi Kurdistan is training to take on members of Islamic State alongside the Kurdish peshmerga. (4) "We want justice," the commander of this battalion told a reporter. (5) "We want the men who did this to go to court." (6) Yet despite the public outcry and sustained advocacy efforts, justice has remained out of reach.

Of particular concern to many outside observers is the apparently premeditated nature of the Yazidi women's enslavement and the sexist ideology--evident in Islamic State pamphlets and articles--that underlies it. (7) France's Minister for Family, Children, and Women's Rights echoed other commentators when she delivered a speech to the United Nations proposing a new international crime--"femicide" (8)--and insisting that countries take steps to prose cute Islamic State at the International Criminal Court (ICC). (9) Unfortunately, there has never been a successful international trial for gender-based persecution, despite the long and tragic history of gender-based targeting in conflict. Indeed, persecutors in several recent conflicts have singled out women and girls, (10) and sometimes men and boys, (11) for vicious, differential treatment.

This Note argues that Islamic State can be charged under the "gender-based persecution" provision of Article 7(i)(h) of the Rome Statute, the multilateral treaty that codifies the ICC's jurisdiction, substantive crimes, and major procedures. (12) The provision--a triumph, at the time, for feminist advocacy groups (13)--has unfortunately failed to realize its full potential. Since the enactment of the Rome Statute, gender-based persecution has been charged only once, in a case that failed to move forward for evidentiary reasons. (14)

This Note tills a gap both in the literature on potential prosecutions of members of Islamic State and in the broader body of scholarship on gender-based crimes. I make two descriptive contributions and one normative contribution to the existing literature. On the descriptive front, this is the first piece to address the possibility of a gender-crimes prosecution against Islamic State. In addition, this Note is the first to analyze the persecution-related jurisprudence of the Pre-Trial Chamber of the ICC and to use this jurisprudence to assess the feasibility of bringing a charge of gender-based persecution in a particular case. Other scholars have tried to give Article 7(1)(h) meaning by examining the statute's drafting history, (15) analyzing the events of its drafting conference from the perspective of advocates, (16) and analogizing to refugee law. (17) But thus far, none has examined the Pre-Trial Chamber's jurisprudence in this context. On the normative front, this Note makes novel use of the concept of intersectionality (18) to analyze why international courts have failed to charge and develop the crime of gender-based persecution, a lapse that may be partly responsible for the failure to create an international norm against such persecution.

The Note proceeds in four Parts. Part I details what is known about Islamic State's crimes against Yazidi women by drawing on evidence unearthed by journalists, advocacy groups, and others. Part II addresses why only a charge of gender-based persecution can address the harm in crimes of this type--not just in response to the atrocities against Yazidis, but in all cases of gender-based targeting of civilians. While aspects of gender-based persecution could be prosecuted as other crimes, gender-based persecution should constitute a separate international crime for the same reasons that genocide does: where evidence indicates that a group has committed widespread criminal acts with a specific intent to target a distinct social group, we consider those crimes distinctly blameworthy. Part II develops this intuition and its doctrinal implications. Pursuing members of Islamic State for violence against Yazidi women--or members of any other group engaged in gender-based persecution--would express an overall international commitment to prevent or respond to gender-based atrocities.

Part III elaborates how a prosecution of Islamic State members for gender-based persecution could proceed. I assess the elements of the crime of gender-based persecution. To help illustrate how the ICC might apply the gender-based persecution statute, this Note makes use of the jurisprudence of the ICC's Pre-Trial Chamber, a judicial panel that decides the viability of indictments for the crimes of ethnic and political persecution. This Part subsequently explains how the alleged crimes against Yazidi women would satisfy the definition of gender-based persecution. In Part IV, I suggest that a series of prosecutions for gender-based persecution, in this case and in others, could help to bolster the legitimacy of the ICC at a critical moment in the institution's troubled history. Undertaking a broadly popular and clearly justified prosecution against a nonstate actor rather than a state could give the ICC an opportunity to pivot from recent unpopular prosecutions to a legitimate new course.

1. EVIDENCE OF CENDER-BASED CRIMES AGAINST YAZIDI WOMEN

   Islamic State is a nonstate militant group that started as a little-known offshoot of the terrorist group al-Qaeda. (19) Over the past five years, Islamic State has taken control of broad swathes of territory in Syria and Iraq as well as smaller areas in Libya and Afghanistan. (20) It gained widespread notoriety in the West in 2014 for executing captured journalists and disseminating graphic videos of their murders. (21) Since 2014, Islamic State has also taken responsibility for and inspired a number of terror attacks in North Africa, Europe, and the United States. (22)

   As a matter of internal structure, evidence suggests that Islamic State has all of the characteristics of a de facto governmental authority: it provides services, collects taxes, manages local resources, and engages in extensive recordkeeping to fulfill its governance responsibilities and combat objectives. (23) Under the ultimate control of Abu Bakr al-Baghdadi, the self-declared "caliph" of Islamic State, (24) Islamic State's bureaucracy consists of several governmental units, including a cabinet in charge of a number of ministries and regional commands. (25) A "governor" who reports to Al-Baghdadi directs each of the regional commands. (26) Centralized under the supervision of the cabinet members in Raqqa are Islamic State's diwan, or departments. (27) Those bureaucracies coordinate Islamic State's affairs in areas such as education, health, public security, tribal outreach, and public relations. (28) A cache of Islamic State documents translated by the terrorism researcher Aymenn al-Tamimi reveals administrative documents regulating matters from maternity care pricing and the proper format for Islamic State birth certificates to the examination schedule at Mosul's pharmacology college. (29) This same collection contains documents threatening Christians and a fatwa (or religious edict) introducing the death penalty for blasphemy. (30)

   Islamic State operates "war spoils" departments to handle captured resources and slaves. One war spoils department coordinates the use of natural resources like oil; another coordinates the sale and movement of slaves. (31) This department of slaves is the organ of Islamic State known to be directly responsible for the treatment of women captives, (32) along with Islamic State's Research and Fatwa Department, the body responsible for issuing religious edicts, including those that deal with women slaves. (33)

   The Islamic State campaign has appeared to focus particularly on persecuting Yazidis, a religious minority of 300,000 to 700,000 people centered primarily in Northern Iraq. (34) Islamic State's particular brutality toward Yazidis is based in part on its view of their religion. While Islamic State ideology affords minimal protections to members of monotheistic religions, the Yazidis' Zororastrian-derived form of polytheism affords them no such defense against Islamic State violence. Thousands of Yazidi civilians have been driven from their villages, killed, or enslaved by Islamic State. (35) Most infamously, in 2014, tens of thousands of Yazidis were trapped for weeks by Islamic State fighters on Mount Sinjar, (36) a...